An Obama-appointed judge has ruled that a law criminalizing illegal reentry is racially discriminatory.
Judge Miranda Du of the federal District Court of Nevada decided that Section 1326 (which makes it a felony to reenter the country after deportation) was unconstitutional. She argued that the law was “enacted with a discriminatory purpose” and “has a disparate impact on Latinx persons.” Thus, it violated the equal protection clause of the Constitution.
Du conceded that there was no way to prove that federal prosecutors were specifically targeting Hispanic illegal immigrants over illegal immigrants from other regions of the world. She wrote:
“While no publicly available data exists as to the national origin of those prosecuted under Section 1326, over 97% of persons apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010.” (emphasis added)
So, to prove her claim, the judge attempted to trace legislative history prior to the passage of Section 1326. Lora Ries, senior research fellow in homeland security for the Heritage Foundation, told the Washington Examiner in an exclusive interview, “This judge looked at racist dialogue that occurred in the 1920s to show that Section 1326 was drafted based on racial animus.”
This reasoning was, as Ries said, a stretch. She noted, “The objective of Section 1326 was to create an orderly immigration system and prevent repeat offenses.” She added, “It’s a simple section of the law — to punish repeat offenders, regardless of their nationality.”
Regarding Du’s decision, Ries observed, “This was an outcome-based decision, and she wrote the decision accordingly.”
On the actual passage of Section 1326 in 1952, Du again used her liberal historical analysis to infer congressional intent. She argued that then-Deputy Attorney General Peyton Ford’s use of a racial epithet and the passage of a separate bill, the so-called “Wetback Bill,” were further evidence of Congress’s racial animus.
Now, this judge is not the first person to tie Section 1326 to 20th-century racism. Three professors filed an amicus brief in April that, according to UCLA’s website, looked “specifically at the racist ideology of the Congressmen who enacted Sections 1325 and 1326 of the Immigration and Nationality Act.”
But such a liberal reading of history may lead to a misconstruing of congressional intent, especially when the reading is not applied consistently.
By Du’s own admission, Section 1326 has passed six times. But for her, the amendment process was not enough to cleanse “the statute of its history.” For someone who relies upon broad historical context to infer congressional intent, Du overlooks more than a half-century of immigration reform.
The Johnson-Reed Act of 1924 indeed established restrictive, national origins quotas while excluding immigrants from Asia. But the system has changed, with the 1965 Hart-Celler Act reversing the policy of limiting immigration based on national origin and the 1990 Immigration Act ensuring that no country can receive more than 7% of the total employment and family-sponsored visas.
Ries argued, “Judge Du’s conclusion that Congress has made no attempt to remedy the ‘racist history’ of Section 1326 is absurd. If Congress found Section 1326 racist, then it had six opportunities to fix it. Congress did not find it racist; she does.”
The judge dismissed arguments by prosecutors that the section was drafted due to concerns of economic competition, national security, and foreign relations, citing expert testimony that racialized each of these areas. For Ries, the reliance upon this expert testimony was further evidence that the decision to find Section 1326 racist was the desired outcome.
The Biden administration might not appeal the decision, given how badly it has enforced our immigration laws. As executive director of the Center for Immigration Studies, Mark Kirkorian suggested, Congress should try to intervene, if not to ensure border security, then to expose this outcome-based decision.
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Original Author: Samuel Kim
Original Location: Obama judge rules that borders are racist