Is one of the most commonly charged federal crimes unconstitutional? According to a federal judge in Nevada, yes. A provision in federal law known as Section 1326 makes it a crime to illegally reenter the United States after being deported. It’s simultaneously one of the lowest-profile federal crimes and one of the most common. The National Association of Federal Defenders told the Supreme Court last year that federal prosecutors charged 23,846 cases under Section 1326 over a 12-month span ending in 2020. That amounts to more than one-third of all federal criminal cases.
Judge Mirandu Du, a federal district court judge in Nevada, ruled last week that Section 1326 violates the Fifth Amendment because of its racist origins and disproportionate impact on Hispanic defendants. “The court is unpersuaded that a criminal law enacted by Congress is free from constitutional equal protection constraints, even if the offense relates to immigration,” Du wrote. “The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection.”
The case, United States v. Carrillo-Lopez, is one of the thousands brought every year under Section 1326. The federal government had previously deported Gustavo Carrillo-Lopez twice, most recently in 2012. Sometime between then and 2019, he allegedly reentered the U.S. Without legal authorization and was arrested on drug and firearm charges. After federal prosecutors charged him with illegal reentry last summer, Carrillo-Lopez and his public defender sought to dismiss it on constitutional grounds.
They faced an uphill battle at first glance. Under Supreme Court precedent, immigration laws are typically reviewed under a lower legal standard known as “rational-basis review.” Generally speaking, so long as there is a rational basis for the law in question, it will survive judicial scrutiny on constitutional grounds. The test reflects Congress’s sweeping authority to write immigration laws under Article I of the Constitution, as well as the Supreme Court’s general aversion to second-guessing how the federal government writes and enforces those laws.
Carrillo-Lopez overcame that hurdle, however, with the argument that Section 1326 is not an immigration law at all, but rather a general criminal law that happens to apply to undocumented immigrants. Du, ruling in favor of the motion to dismiss, agreed. “That Carrillo-Lopez challenges a criminal law—which goes to the ‘nature’ of the Fifth Amendment’s protective concern—applicable to those within the United States,” Du wrote, “rather than an immigration policy addressing national security concerns of those not within the United States, is further evidence that his equal protection challenge should be reviewed under a more heightened standard than the rational-basis standard that the government proposed.”
Carrillo-Lopez challenged Section 1326 by noting the racist environment in which Congress passed it in the 1920s. “Enacted at the height of the eugenics movement, the ‘Undesirable Aliens Act of 1929’ was conceived, drafted, and enacted by white supremacists out of a belief that the ‘Mexican race’ would destroy the racial purity of the United States,” Carrillo-Lopez argued, quoting from contemporary sources. “Legislators referred to Mexicans as ‘mongrels’ and ‘peons.’ They claimed Mexicans were ‘poisoning the American citizen.’ They sought to keep the country’s blood ‘white and purely Caucasian.’ They solicited reports and testimony from a eugenicist who likened immigration policy to the ‘breed[ing] of thoroughbred horses.’”
Federal prosecutors, arguing in favor of Section 1326’s constitutionality, said that a fuller reading of the lawmakers’ comments and testimony suggested that they were driven by economic and labor-related concerns instead of purely racial ones. “The point is not that these congressmen did not say things unbecoming of elected officials,” the Justice Department told the court. “It is that indulging even briefly in [Carrillo-Lopez’s] desired probe of the congressional record reveals a more complicated, multidimensional picture than the flat caricature he paints.”
Du disagreed. The judge concluded, based on historical evidence and scholarly testimony, that Section 1326 had been tainted by racial animus when it was first passed in the Undesirable Aliens Act of 1929, as well as when it was recodified in 1952. Du noted that the 1952 passage came just months after Congress passed what was then widely described, including by lawmakers and The New York Times, as an “anti-wetback bill.” She also rejected prosecutors’ claims that lawmakers were motivated by more defensible factors when passing Section 1326, ranging from economic competitiveness to national security.
There are a few ways that Du’s ruling could be reversed by the Ninth Circuit or the Supreme Court. For one, the Justice Department argued that Congress had wiped away the racism of the 1929 statute by amending it multiple times throughout the twentieth century. “Under [Carrillo-Lopez’s] view, the taint of prior discriminatory intent forever forbids the criminalization of illegal reentry,” the government claimed when it urged Du to reject the motion to dismiss. “This makes little sense. Whether intentional discrimination existed in 1929 legislation—a point contested below—is a question about the motives of the 1929 legislature. Legislative intent is not an artifact that ‘carries over’ from one law to the next.”
Another angle of attack is Du’s analysis of the discriminatory impact of Section 1326. The Justice Department argued that Mexican and Hispanic defendants were more likely to be charged under the law for geographic reasons, not for racial or ethnic reasons. Du described that reasoning as “circular and inconclusive” in her decision. “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,” she wrote. “Or that because Mexican citizens will likely make up more unlawful reentries because they are a higher percentage of the overall illegal alien population, they cannot raise equal protection challenges.”
It’s unclear whether the other courts or the Supreme Court would reach the same conclusion, though. At least one key justice recently took the opposite view in a different context on racial discrimination and immigration enforcement. “Because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program,” Chief Justice John Roberts wrote in his ruling last year on the Trump administration’s efforts to end the DACA program. “Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.”
The Supreme Court itself is no stranger to cases where laws that appear neutral on their face are challenged for discriminatory reasons. Just last year, in Ramos v. Louisiana, the justices struck down laws in two states that allowed nonunanimous juries to convict defendants of state crimes. A few weeks later, in Espinoza et al. V. Montana Department of Revenue et al., the high court nullified a state constitutional rule that banned public funds from going to religious schools. Both provisions could be traced to nineteenth-century bigotry: The nonunanimous jury laws in Ramos were designed to dilute nonwhite jurors’ votes in the Jim Crow era, while the “Blaine amendments” in Espinoza were largely rooted in late nineteenth-century anti-Catholic animus.
But that does not mean the justices are willing to go that far with Section 1326. The Justice Department argued against a broad reading of Ramos when evaluating discriminatory intent by lawmakers. “While the Supreme Court in its opinion in [Ramos] stated that its opinion ‘acknowledge[ed] the racist history of Louisiana and Oregon’s laws’ regarding nonunanimous juries, and indicated it would not ‘leav[e] an uncomfortable past unexamined,’” prosecutors noted, “it also explicitly stated that this inquiry was not necessary to its decision, noting that ‘the dissent is right about one thing—a jurisdiction adopting a nonunanimous jury rule even for benign reasons would still violate the Sixth Amendment.’” In other words, the evidence of racial animus was additive instead of decisive.
Either way, the case is a potentially thorny challenge for the Biden administration, where at least some immigration policy decisions are reportedly driven by fear of right-wing criticism. Julián Castro, a former Democratic presidential candidate, proposed making illegal entry under Section 1325 into a civil offense instead of a criminal one during the last campaign. “Like Sec. 1325, [Section 1326] has an incredibly racist history,” he wrote on Twitter last week. “I doubt the Biden DOJ will want to defend it in the appellate court.” The next day, the Justice Department informed the court that it would appeal the ruling.