Anti-discrimination jurisprudence: US v. Carrillo-Lopez

US v. Carrillo-Lopez

INA §1326 is “…a statutory provision enacted in 1929 for the purpose of solving ‘the Mexican problem’ by criminalizing unauthorized reentry after deportation from the United States.” (Hernandez et al., 2021: 3). Explicitly motivated by nativist, eugenic concerns about the inferiority of Mexican immigrants, the original language of §1326 within the Undesirable Aliens Act of 1929 was “…designed to further the Nativists’ racist goal of preventing long-term Mexican immigration to the United States while also preserving agribusiness access to low-cost workers.” (ibid) As part of the McCarran-Walter Act of 1952, Congress re-enacted §1326, followed closely by “Operation Wetback” which together resulted in criminal re-entry quickly becoming the most prosecuted federal charge by the US government. Today, approximately half of all federal prosecutions are for illegal entry or re-entry, costing the federal government over one billion dollars per year including costs of incarceration. (Keller 2012: 67–68)

In June 2020, Gustavo Carrillo-Lopez was indicted pursuant to §1326 which criminalizes the reentry of individuals into the U.S. who have been deported or removed. Carrillo-Lopez sought to dismiss the indictment on the grounds that §1326 violates his constitutional right to Equal Protection under the fifth Amendment. In order to meet the burden of proof for dismissal, Carrillo-Lopez – along with any movant under Equal Protection - must show that §1326 as a statute has both a) disparate impact upon a specific racial group and b) was passed with a discriminatory purpose or ‘animus’ that can be traced to the motives of the enacting legislature. As to the question of disparate impact, the government did not even dispute whether §1326 had disparate impact upon Mexican and Latinx individuals, but rather provided a rationalization exempting such disparate racial treatment. However, the Court rejected the government’s argument 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.” ¹ As a result, the Court found in the affirmative on the question of whether §1326 had disparate impact upon Mexican and Latinx individuals.

As to the element of discriminatory purpose or ‘animus’, Carrillo-Lopez had to show that §1326, originally enacted in 1952, was in part motivated by a racially discriminatory purpose. Under the standard established under Washington v. Davis, ² a movant must show that the enacting legislature was itself in part motivated by discriminatory ‘animus’ against the specific racial group. If a movant demonstrates disparate impact, but cannot show that the enacting legislature was in part motivated by discriminatory animus or intent against the specific group, an Equal Protection claim under the Supreme Court’s current discrimination jurisprudence should fail. Therefore, under the Davis standard, a movant under an Equal Protection challenge faces a extremely high evidentiary burden, even if they are able to demonstrate disparate impact. As some legal scholars have noted, “…the challengers' burden of proof under the Davis rule is so insurmountable that in most cases they cannot establish invidious intent.” ³

At the same time, the Supreme Court’s anti-discrimination jurisprudence also takes into historical and contextual evidence in examining a statute’s discriminatory purpose. In Carrillo-Lopez’s case, the Court considered several factors, including the historical background of the statute, the legislative history of the statute, and legislative departures from normal procedures. Just as in each of the challenges to §1326, the Court focused on the connection to the statutes’ historically racially motivated purpose: “(B)efore Section 1326 was enacted in 1952, Congress first criminalized unlawful reentry in 1929 as part of the Undesirable Aliens Act…(T)he Immigration and Nationality Act of 1952 (“INA”), often referred to as The McCarran-Walter Act (“McCarran-Walter Act”), again codified the unlawful reentry provision first passed in 1929 under Title eight of the United States Code, at 8 U.S.C.A. § 1326.” ⁴ Since §1326 as a statute was based on language taken directly from the 1929 Act, the relevant legal questions the Court analyzed were (i) whether the 1929 Act was motivated by racial animus, and (ii) whether Congress intentionally removed the racial animus of the1952 statute in its enactment of §1326.

In each of the challenges to §1326, federal courts have recognized that racial animus was a primary motivating factor of the 1929 Undesirable Aliens Act, which was explicitly motivated by nativist concerns over white supremacy. See United States v. Machic-Xiap, 552 F. Supp. 3d 1055 (D. Or. 2021). However, the issue in each of the challenges has been the link between the 1929 Act and the enactment of the 1952 statute. Since §1326 cannot be construed as “facially” discriminatory (lacks racially discriminatory language), the main legal question is each of these cases has been: is there sufficient evidence to establish a nexus of racial animus between the 1929 Act and the §1326 statute in order to impute a discriminatory purpose? In US v. Carrillo-Lopez, the Court determined that there was enough evidence to conclude that both enactments of the illegal reentry statute in 1929 and 1952 were motivated by a racially discriminatory purpose, and thus the statute violated the Equal Protection clause of the fifth Amendment. In its reasoning, the Court pointed to several factors concerning the nexus between the 1929 Act and the 1952 statute:

a relative lack of discussion compared to robust Congressional debate regarding other provisions of the INA; explicit, recorded use of the derogatory term "wetback" by supporters of Section 1326; Congressional silence while increasingly making the provision more punitive; Congress' failure to revise in the face of President Truman's veto statement calling for a reimagination of immigration policy; knowledge of the disparate impact of Section 1326 on Mexican and Latinx people; and passage of the so-called "Wetback Bill" by the same Congress only months prior. ⁵

The Court reasoned that, while each of these pieces of evidence are insufficient by themselves, together they are “…sufficient to demonstrate that racial animus was at least one motivating factor behind the enactment of Section 1326.” ⁶ In its ruling, the Court noted that the amendments that have been made to 1326 since 1952 have only increased the financial and carceral penalties of illegal re-entry, while failing to address the racial animus present throughout the enactment and re-enactment of the statute. As a result, the Court noted that, “…at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past 90 years have not changed its function but have simply made the provision more punitive and broadened its reach. Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.” ⁷ Thus, the Court granted Carrillo-Lopez’s motion to dismiss the charge because §1326 violates the Equal Protection clause of the fifth Amendment.

While Carrillo-Lopez’s challenge to §1326 was successful, many other challenges have not been as successful. In June 2021, a Federal District Court ruled that immigration statutes must be subjected to heightened scrutiny rather than a rational basis standard and agreed with the movant that the origins of §1326 were based in the discriminatory purpose of the 1929 Undesirable Aliens Act. However, the Court denied the move to dismiss the charge due to failure to show the 1952 statute itself was motivated by discriminatory intent. ⁸ In August 2021, a New Mexico Federal District Court also acknowledged the racist origins of §1326 traceable to the 1929 Undesirable Aliens Act. However, the Court denied the claim that §1326 violated Equal Protection because, the Court said, immigration laws are subject to rational basis review rather than the higher standard that required inquiry into discriminatory intent. ⁹ Also in August 2021, an Oregon Federal District court also acknowledged the racist origins and disparate impact of §1326 upon Latinx individuals. However, the Court denied the movant’s Equal Protection claim based on the failure to demonstrate discriminatory intent of the 1952 Congress which re-enacted §1326. ¹⁰ Finally, in December 2021, an Ohio Federal District Court ruled that §1326 only demands rational basis review and denied the movant’s Equal Protection claim due to lack of demonstration of invidious governmental purpose (discriminatory intent). ¹¹

Intent doctrine

The conclusion reached in each challenge to §1326 has hinged upon judges’ positions on a crucial constitutional debate over discriminatory intent doctrine, In 2018, this debate took full stage at the Supreme Court over a case involving racial gerrymandering. See Abbott v. Perez, 138 S. Ct. 2305 (2018). The debate concerns the issue of who bears the burden of proof in discriminatory intent cases, and whether there should be a “good faith” presumption of legislatures who enact statutes with arguably racially “tainted” historical records. The issue can be posed as follows: do movants bear the burden of demonstrating that a specific legislature passed a specific statute with discriminatory purpose, or rather is it the burden of each new legislature to address and redress any discriminatory animus that may be attached to the historical or contextual background of a statute considered for enactment? In Abbott, movants failed to overcome the good faith presumption of the legislature because they failed to demonstrate direct proof of a malicious, subjective mindset on behalf of the legislature (Horner, 2020). Judges who reject the idea that each new legislature bear the burden of redressing racial animus from the historical record of statutes being considered generally adopt the “good faith presumption”: the position that a previous legislatures’ motives, biases and purposes cannot be imputed to a new, incoming legislature. Judges who accept that each new legislature bears the burden of at least addressing and redressing racial animus from the historical record of statutes being considered therefore reject the “good faith presumption” and believe that any discriminatory purpose or ‘animus’ must be at minimum addressed through a deliberative process and ideally redressed before statutes are considered for enactment.

Judges who accept the “good faith presumption” have therefore concluded that the 1952 §1326 statute lacks discriminatory purpose, since the nativist and eugenic motives and biases of the 1929 Act (under this view) cannot be imputed to the 1952 Congress who passed §1326 as part of the INA. In contrast, the Carrillo-Lopez and other courts have placed the burden upon the government to disprove the evidence establishing the discriminatory animus of the 1952 enacting Congress. Departing from the “good faith” presumption, the Carrillo-Lopez Court concluded that the government “…failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.” ¹² Under this approach, there is no “good faith” presumption that Congressional acts authorizing federal prosecutions are free from racial animus simply because those prosecutions occur under a new Congressional term. Here, a movant’s claim to dismiss a federal charge on Equal Protection grounds may be successful if the government fails to rebut evidence that the statute at issue was partly motivated by discriminatory intent. Rather than being required to demonstrate the high evidentiary burden of showing an “invidious subjective intent” by a governmental actor, the Carrillo-Lopez Court places the burden upon the government to demonstrate that the federal prosecution of individuals is based on Congressional acts that are themselves free from racial animus.

Since the Supreme Court’s 2020 decision in Abbott v. Perez, federal courts in different subject-matter jurisdictions have interpreted the high court’s guidance differently with respect to the “good faith presumption”. While a few courts have interpreted this as a hard-and-fast rule that effectively severs any connection between discriminatory animus of past and present legislatures, some courts have noted that this conflicts with basic principles of statutory construction when considering discriminatory statutes. In 2006, the Supreme Court clarified that the interpretive principle of in pari materia concerns the interpretation of the function of a statute within subject-matter jurisdiction and not venue jurisdiction. ¹³ This ruling was deduced in part from a previous Supreme Court decision affirming the basic rule of in pari materia that Congress will be aware of previous statutes within the same subject matter when enacting new statutes. The Court wrote that, ‘(T)he rule is but a logical extension of the principle that individual sections of a single statute should be construed together, for it necessarily assumes that whenever Congress passes a new statute, it acts aware of all previous statutes on the same subject’. ¹⁴ According to the logic of in pari materia, a Congress which enacts a statute without substantial change by extension adopts the same interpretation of the original statute. Indeed, as the Supreme Court interprets the application of the rule of in pari materia,

(C)ongress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change…[when] Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute. ¹⁵

Therefore, according to this basic rule of statutory construction, there can be no presumption of “good faith” when a Congress enacts a statute with a historical and contextual record of discriminatory animus. Since a Congress considering a statute for enactment is, according to the principle, aware of the discriminatory history and context of that statute, it follows that the new Congress considering enactment must either a) address, remove or redress the discriminatory animus, or b) leave the statute intact and therefore adopt its original interpretation.

Therefore, Courts which have adopted the “good faith presumption” as a hard-and-fast rule in cases involving statutes with a discriminatory history neglect the statutory interpretation of statutes in pari materia. These two principles conflict: the good faith that past discriminatory motives of the State are unconnected to present discriminatory lawmaking, and the idea that the constitutional validity of laws must be considered in their full historical context. This conflict is seen most starkly in the Supreme Court’s narrow 5–4 ruling in Abbott v. Perez, where the majority argues for the good faith presumption and the dissenting opinions point out that the new Congress enacting the voting plans was well aware of the discriminatory history of those plans but chose not to deliberate upon or act upon those discriminatory elements. Since this decision, federal courts have taken both of these positions regarding laws and policies that are ‘tainted’ with discriminatory history, purpose and effect. As legal scholars have noted, however, the “good faith presumption” implies that a successful movant must demonstrate a subjective, invidious intent of mindset on behalf of the enacting legislature – an impossibly high evidentiary burden given the nature of discrimination as it functions today. For this reason, some federal courts have not followed the Supreme Court’s guidance in Abbott v. Perez on the matter of statutory construction of discriminatory statutes. Rather, reading statutes with a discriminatory history as in pari materia, some federal courts have imputed to a new Congress the discriminatory purpose and animus of a statutes’ history and context, based on Congress’ awareness of, inaction upon and thus implicit adoption of those purposes and that animus.