By ED WHELAN
August 19, 2021 12:47 PM
In an extraordinary order yesterday in U.S. v. Carrillo-Lopez, federal district judge Miranda Du (D. Nev.) ruled that a core provision of federal immigration law is unconstitutional. Judge Du concluded that section 1326 of Title 8, which imposes criminal penalties on aliens who have been removed and who thereafter re-enter the United States, “violates the equal protection guarantee of the Fifth Amendment.” Specifically, Judge Du determined that section 1326 “was enacted with a discriminatory purpose” and “has a disparate impact on Latinx persons” (she uses the term Latinx 21 times) and that the government “fail[ed] to show that Section 1326 would have been enacted absent racial animus.”
On a quick review of Du’s 43-page order, I have lots of doubts about her reasoning. Here are some of them:
1. Let’s accept for the sake of argument Du’s conclusion that both the enactment in 1929 of the predecessor version of section 1326 and the enactment in 1952 of section 1326 were motivated by discriminatory intent. As she points out, section 1326 was also amended in 1988, 1990, 1994, and 1996 (twice). Du contends that these amendments weren’t “substantive” (because they supposedly didn’t “change the operation of Section 1326”) but instead merely “served to increase financial and carceral penalties.” But surely the increase in those penalties reflects an embrace by each of the enacting Congresses of the substantive provision. They weren’t mere technical amendments. So it’s odd that Du refuses to agree that those actions by later Congresses, which Du doesn’t argue reflected racial animus, suffice to cure section 1326 of its tainted origins.
It’s particularly odd that Du seems to imagine that Congress had to “attempt … to grapple with the racist history of Section 1326 or remove its influence on the legislation.” A provision setting forth criminal penalties for illegal re-entry would seem to be an unsurprising part of a functioning immigration system. Why isn’t it enough that later Congresses—again, Congresses that Du does not allege to have been racially motivated—have made clear their support for such a provision?
2. In finding that section 1326 “has a disparate impact on Latinx persons,” Du rejects the government’s position that geography explains the disparate impact. In her words, “It cannot be the case that the mere over-policing of certain locations—here the Southern border as opposed to the Northern border—prevents a specific group from raising equal protection challenges.” But her contention that the border with Mexico is “over-polic[ed]” compared to the border with Canada makes no effort to address the vast differences between the two borders.
3. Under Du’s reasoning, why wouldn’t enforcement of other ordinary immigration laws also violate equal protection? Why wouldn’t the ban on illegal entry in the first place be unlawful? Surely Du could dig up the same kind and quality of evidence of discriminatory purpose in the past and of disparate impact.
I doubt that even the often very wacky Ninth Circuit will agree with Du’s ruling (though much might depend on the panel draw).