Back in August 2021, I called attention to an extraordinary order by federal district judge Miranda Du that 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 used the term Latinx 21 times) and that the government “fail[ed] to show that Section 1326 would have been enacted absent racial animus.”
In a unanimous opinion today (in United States v. Carrillo-Lopez), a Ninth Circuit panel emphatically reversed Du’s ruling. Judge Sandra Ikuta wrote the panel opinion, and Judge Carlos Bea and Judge Morgan Christen joined it. For those keeping score at home, the panel has judges appointed by Republican and Democratic presidents: George W. Bush appointed Ikuta and Bea, and Barack Obama appointed Christen.
The panel opinion rejects Du’s conclusion that section 1326 was enacted with a discriminatory purpose. The panel finds it unnecessary to consider the Biden administration’s argument that a more deferential standard applies to immigration laws, because it concludes that Carrillo-Lopez’s challenge fails even under the usual test that applies outside the immigration context. Specifically, section 1326 is facially neutral, and Carrillo-Lopez fails to show that its enactment as part of the Immigration and Nationality Act of 1952 was motivated by discrimination against Mexicans and other Central and South Americans.
Among the important established propositions that the panel recites are that there is a strong presumption of good faith on the part of legislators; that such presumption is not changed by a finding of past discrimination; and that, except in rare cases, disproportionate impact cannot establish discriminatory purpose.
Consistent with statutory law, and contrary to the recent misguided practice of some justices, the panel uses the terms alien and aliens dozens of times and does not substitute in the term noncitizen. The panel does not use the term Latinx at all, except to note that that is one of various terms “in the record” to refer to the group that section 1326 is alleged to target.