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Excerpted From: Eric S. Fish, Race, History, and Immigration Crimes, 107 Iowa Law Review 1051 (March, 2022) (447 Footnotes) (Full Document)


EricFishFederal prosecutors charge tens of thousands of people each year with victimless immigration crimes. Indeed, based on the numbers, criminalizing immigration seems to be the main function of the federal criminal justice system. Other types of cases get more headlines-- white collar cases, terrorism cases, public corruption cases. But immigration cases dominate the day-to-day work of federal courthouses. Two crimes in particular play an outsized role in the federal system: unlawful entry (typically a misdemeanor), and unlawful reentry (a felony). These are the first- and second-most-commonly charged federal crimes. Of the 76,538 felony cases federal prosecutors brought in the United States in 2019, 25,426 (about 33 percent) involved defendants charged with unlawful reentry. The average sentence in these cases was nine months in prison. In the same year, federal prosecutors brought 80,886 prosecutions for misdemeanor unlawful entry. These charges combined make up a comfortable majority of all federal criminal cases. About 99 percent of the defendants in these cases are nationals of Mexico or other Latin American countries. Indeed, because these two crimes are prosecuted so frequently, a majority of all federal arrestees are noncitizens. two crimes are unconstitutional. They were created in the 1920s by a group of white men who believed in racial eugenics. These men thought that immigration from Latin America posed a racial threat to the United States. And they did not keep their views secret. Quite the opposite. They published articles, gave speeches, held legislative hearings, and made statements in the Congressional Record arguing that Latin Americans should be purged from the United States in order to protect Caucasian Americans from racial contamination. The men who created these crimes did not merely intend to punish illicit border crossing. They did not distinguish between Latin Americans who came here legally and those who came illegally. Rather, they created these crimes to advance their goal of removing all Latin Americans from the United States.

This Article argues that the two main federal immigration crimes are unconstitutional because of their racist history. It examines the legislative history of the 1929 law that created these two crimes, the “Undesirable Aliens Act of 1929.” The Article's principal methodology is archival research. It relies on systematic, original review of historical sources from the 1920s, including: (1) legislative hearings concerning the Undesirable Aliens Act and several other major immigration bills proposed in Congress between 1924 and 1930; (2) debates in the congressional record concerning those bills; (3) speeches, articles, and other writings made by several prominent anti-immigration politicians of the time; and (4) speeches, articles, private correspondences, and legislative testimony by prominent eugenicists who influenced immigration law in the 1920s. This Article also relies on the excellent work of several historians who have written about the immigration law and politics of this period. The narrative focuses in particular on the roles of five immigration restrictionists: Albert Johnson, the Republican Chairman of the House Committee on Immigration and Naturalization; John Box, a Democratic congressman from Texas; Coleman Livingston Blease, a Democratic Senator from South Carolina; James Davis, the Secretary of Labor during the Coolidge Administration (the Labor Department administered immigration laws in the 1920s); and Harry Laughlin, a prominent eugenicist and the “Expert Eugenics Agent” of the House Committee on Immigration and Naturalization from 1921 to 1931.

The narrative begins with the Johnson-Reed Act, passed in 1924. That law imposed a system of immigration quotas that effectively ended immigration from most countries outside of Western Europe. The proponents of this quota system relied on the then-popular science of eugenics. They believed that the Nordic race (Caucasians from Western Europe) had evolved to become genetically superior to other races, and was responsible for the success of American civilization. They feared that immigration from countries in Southern Europe, Eastern Europe, and Asia would dilute America's Nordic racial stock. Chairman Albert Johnson, the main author of the Johnson-Reed Act, vigorously advocated this ideology of scientific racism. So did his Committee's Expert Eugenics Agent, Harry Laughlin, who provided testimony and numerous reports arguing for restriction in eugenicist terms. These arguments would feature prominently in all the immigration debates of the 1920s.

While the Johnson-Reed Act was the restrictionists' greatest triumph, it did contain a major exception: it allowed unlimited immigration from countries in the Western Hemisphere. This exception permitted migrants from Latin America to enter without a quota. It was motivated in part by businesses' desire for cheap labor, and in part by foreign policy concerns. Due to this exception, immigration from Latin America expanded significantly after 1924. At the same time, immigration from most other parts of the world diminished.

After 1924, Chairman Johnson and the other restrictionists refocused their efforts on a new goal: ending Latin American immigration. Their strategy had two complementary prongs. The first was ending lawful immigration from Latin America, and the second was deporting the Latin Americans already here. To end lawful immigration, Representative John Box of Texas repeatedly presented a bill (the “Box Bill”) that would have imposed immigration quotas on the countries in the Western Hemisphere. This bill was proposed and debated by Congress in 1926, 1928, and 1930. To remove the people already here, Chairman Johnson proposed a bill (the “Johnson Bill”) that would have significantly expanded the power to deport immigrants. The Johnson Bill also contained a provision making unlawful entry a misdemeanor. This bill was proposed and debated by Congress in 1925, 1926, and 1928. Throughout the legislative hearings on these bills, Harry Laughlin and other eugenicists argued that immigrants from Latin America threatened our Nordic racial purity. These hearings focused especially on the mixed racial makeup of Latin America, where people often have a combination of Spanish, indigenous, and African ancestry. To Laughlin and other eugenicists, this meant racial degeneracy.

Neither the Box Bill nor the Johnson Bill ultimately became law. However, in 1929 the Senate passed a pair of bills that led to the restrictionists' first major victory since 1924. These bills were proposed by South Carolina Senator Coleman Livingston Blease, and were drafted by Secretary of Labor James Davis. The first, S.5093, created registration cards for non-citizens bearing their name, nationality, photograph, date of admission, location of entry, and other identifying information. The second, S.5094, created the felony crime of reentry after deportation. These proposals were designed to work in concert, creating an enforcement regime where Latin American immigrants could be stopped by the authorities, asked for a registration card, and then prosecuted for an immigration crime. Only S.5094 was taken up by the House of Representatives in 1929, and Chairman Johnson combined it with the Johnson Bill. The House Committee called this fused bill the “Undesirable Aliens Act of 1929.” The subsequent debate in the House of Representatives focused overwhelmingly on the issue of Latin American immigration, and featured eugenic arguments concerning Latin Americans' racial characteristics. The congressmen who discussed the Undesirable Aliens Act made it clear that this proposal was part of the larger strategy to remove Latin Americans on racial grounds. Most of the Johnson Bill was ultimately removed in conference committee, and the Blease/Davis Bill was enacted into law along with the misdemeanor provision of the Johnson Bill. Immediately after the law's passage, the federal government began using it to prosecute Latin American immigrants. The law has remained in force, with some modifications, up to the present day.

Because this law was motivated by anti-Latin American racism, it violates the Equal Protection Clause. The law is neutral on its face--it does not categorize people by race, nor does it explicitly burden a particular racial group. But delving into the law's legislative history reveals that racial animus prompted its enactment. In Village of Arlington Heights v. Metropolitan Housing Development Corporation, the Supreme Court elaborated a framework for this kind of equal protection claim. The first question is whether a discriminatory purpose “has been a motivating factor in the decision ....” To answer that, one looks at evidence like the law's historical background, its specific enactment history (including the statements of its supporters), and its impact on the affected racial group. Once it has been established that racism was at least one motivating factor, the other party must then prove that the law would still have been enacted without the impermissible purpose. As this Article will show, anti-Latin American racism was the primary motivation behind the Undesirable Aliens Act, and the law would not have been enacted absent this motivation. The evidence for these propositions is strong. It includes statements by the law's proponents, the sustained efforts of those same proponents to end all Latin American immigration, their consistent reliance on racial eugenics as a justification, and their particular focus on the supposed racial degeneracy of Latin American immigrants. federal legal system needs to grapple with the racist history of its two most frequently charged crimes. Congress should repeal these crimes. Defense lawyers should challenge them as unconstitutional. Judges should strike them down. Prosecutors should decline to prosecute them. Juries should nullify them. Article proceeds as follows.

Part II provides the larger historical context of the effort to end Latin American immigration. It describes how the eugenics movement inspired the creation of the quota system through the Johnson-Reed Act. It also explains the Western Hemisphere exception, which caused Latin American immigration to expand significantly post-1924 while immigration from other parts of the world declined.

Part III lays out restrictionists' efforts to stop Latin American immigration after 1924. Their strategy had two main components: ending the Western Hemisphere exception and expanding the government's power to deport. It also shows that experts in eugenics played a starring role in the legislative hearings on the restrictionists' various bills. These eugenicists argued before Congress that Latin American immigrants were “peons,” “mongrels,” and “degenerates,” and that they posed a threat to the racial purity of white America.

Part IV examines the specific legislative history of the Undesirable Aliens Act of 1929, and how it fit into these efforts to end Latin American immigration. It describes the original proposal of Senator Blease, the amendments and debate in the House of Representatives, and the post-enactment commentary on the law. It also discusses the subsequent enforcement of the law, which was directed almost entirely against Latin American immigrants.

Part V argues that this history matters. The law's larger historical context, immediate legislative history, and unequal enforcement prove that it was motivated by racial animus. Further, the law would not have been enacted but for this racist motivation. Consequently, federal immigration prosecutions violate the Constitution's guarantee of equal protection.

Part VI considers one counterargument--that Congress has plenary authority to regulate immigration and that this authority implies a power to racially discriminate. This proposition is rejected because immigration crimes are criminal statutes and thus receive greater constitutional scrutiny than do immigration laws.

Part VII considers another counterargument--that the Undesirable Aliens Act was reenacted in 1952, and that this later reenactment absolves the law of racial animus. This proposition is rejected for two reasons. First, the reenactment was pro forma. It was part of a general reorganization and recodification of the immigration laws. It involved no debate over the merits of these crimes. Congress understood itself to be simply keeping the same law in place. Second, when a law is enacted with a racist purpose, that purpose is not purged by later reenactment unless the legislature actually grapples with the law's racist history. Congress did not do so in 1952, and it has not done so since.

Part VIII concludes.

[. . .]

The federal legal system incarcerates tens of thousands of people every year for victimless immigration crimes. Basically all of the defendants in these cases are from Latin America. Surely some federal prosecutors and judges have taken notice of this fact. At least a few have even, perhaps, felt tinges of conscience. It is hard not to see that, day after day, every single defendant in court has brown skin and speaks Spanish or an indigenous language. Likely more than once a prosecutor or judge has had to reassure themselves that racism is not at work here. It just so happens that the United States shares a long border with Mexico. And it just so happens that the countries to our south are poor and unstable. So, of course, it is overwhelmingly Latin Americans who get prosecuted for immigration crimes. That is not a product of racism, it is a product of geography. And geography cannot be helped.

This thought should provide no comfort. Causality moves in the other direction. Entry and reentry were criminalized precisely in order to target Latin Americans because of their race. In the 1920s, a group of powerful white men decided that Latin Americans were racially degenerate. These men went to great lengths to exclude Latin American immigrants completely from the United States. They did not focus on the merits of “legal” versus “illegal” immigration. They wanted to keep out all immigrants deemed racially undesirable. And they largely succeeded for a time. The quota system they enacted in the 1920s has since been repealed. But the laws criminalizing unlawful entry and reentry remain. They are a lasting legacy of those men's commitment to white supremacy.

Ninety-two years of racist prosecutions are enough. Congress should repeal these crimes. Prosecutors should decline to charge them. Juries should nullify them. Defense lawyers should challenge them. And judges should strike them down.

Law Professor, University of California at Davis.

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