Eudene Eunique, an Individual v. Colin L. Powell, the Secretary of State for the United States

*972 Opinion by Judge FERNANDEZ. Concurrence by Judge McKEOWN. Dissent by Judge KLEINFELD.

ORDER

Our opinions filed February 22, 2002, are hereby withdrawn, and new opinions— a lead opinion by Judge Fernandez, a concurring opinion by Judge McKeown, and a dissenting opinion by Judge Kleinfeld — are filed simultaneously herewith.

Judges Fernandez and McKeown voted to otherwise deny the petition for rehearing. Judge Kleinfeld would grant that petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and for rehearing en banc are, therefore, DENIED.

OPINION

Eudene Eunique was denied a passport because she was severely in arrears on her child support payments. She brought an action for declaratory and injunctive relief on the theory that the statute and regulation authorizing that denial were unconstitutional. See 42 U.S.C. § 652 (k); 22 C.F.R. § 51.70 (a)(8). The district granted summary judgment against her, and she appealed. We…

Concurring.

That the right to travel abroad is an important one is beyond dispute. The Supreme Court has not, however, declared international travel to be a fundamental right. Indeed, the Court has never mandated strict scrutiny review, but rather has pointedly distinguished between international travel and interstate travel. Califano v. Aznavorian, 439 U.S. 170, 176 , 99 S.Ct. 471 , 58 L.Ed.2d 435 (1978) (holding that interstate travel is “virtually unqualified” in contrast to international travel which is “no more than an aspect of the ‘liberty’ protected by the Due Process Clause”). As a consequence, considering the nature of the right to travel internationally, in my view intermediate scrutiny comes the closest to being the proper standard when First Amendment concerns are not implicated. Therefore, I concur in the result of Judge Fernandez’s opinion because I conclude that the statute passes muster under intermediate scrutiny.

Securing the payment of child support for minor children is surely both an important and substantial government interest. Considering that enforcement often becomes illusory once the parent leaves the country, the passport restriction makes perfect…

dissenting.

I respectfully dissent.

*979 Judge Fernandez’s opinion would hold that “rational basis review is the proper standard” 1 for testing restrictions on a person’s right to leave the United States. The right to leave one’s country is too important to be subject to abridgment on so permissive a standard. The practical effect of consigning the right to travel to this lowly category of constitutional protection is to grant Congress plenary power to restrict it. Judge McKeown’s opinion would hold that “intermediate scrutiny should be the benchmark.” 2 In my view, we are not at liberty to take either approach.

The Supreme Court laid down the principles that govern this case before it adopted the three pigeonholes now fashionable: rational basis, intermediate, and strict scrutiny. The holdings in the principal right to travel cases use the approach that dominated jurisprudence in the 1960s, when pigeonholes and drawing inferences based on the pigeonholes was considered a relic of earlier times. We must take these cases as they are. In this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or…

302 F.3d 971 Eudene EUNIQUE, an Individual, Plaintiff-Appellant, v. Colin L. POWELL, * the Secretary of State for the United States, Defendant-Appellee. No. 99-56984. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 14, 2001. Filed August 23, 2002. Eudene Eunique, Lucerne Valley, CA, pro se. Anh-Thu P. Mai, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the defendant-appellee. Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CV-98-07787-GHK. Before: FERNANDEZ, KLEINFELD, and McKEOWN, Circuit Judges. 1 Opinion by Judge FERNANDEZ. Concurrence by Judge McKEOWN. Dissent by Judge KLEINFELD. ORDER 2 Our opinions filed February 22, 2002, are hereby withdrawn, and new opinions — a lead opinion by Judge Fernandez, a concurring opinion by Judge McKeown, and a dissenting opinion by Judge Kleinfeld — are filed simultaneously herewith. 3 Judges Fernandez and McKeown voted to otherwise deny the petition for rehearing. Judge Kleinfeld would grant that petition. The full court was advised of the petition for rehearing en banc. A…