Excerpted From: Brenda Pfahnl, Protecting American Blood from “Alien Contamination”: Should Strict Scrutiny Apply to the Racist Roots of 8 U.S.C. § 1326? United States V. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021), 49 Mitchell Hamline Law Review 316 (April, 2023) (235 Footnotes) (Full Document)


BrendaPfahnlIn the 1920s, the federal government relied on the pseudoscience of eugenics in shaping its immigration policies. Leading U.S. eugenicist, Dr. Harry Laughlin, became the “expert eugenics agent” of the House of Representatives Committee on Immigration and Naturalization. Throughout the 1920s, Dr. Laughlin testified, presented written reports, and advised the committee. In 1926, Laughlin testified, “[i]mmigration control is the greatest instrument which the Federal Government can use in promoting race conservation of the Nation,” and advocated for deportation to “protect American blood from alien contamination.” Laughlin's views were shared by many in Congress and, guided by his advice and expert testimony, the Undesirable Aliens Act of 1929 (Act of 1929) was passed into law. Today, the most frequently prosecuted federal crimes, Sections 1325 and 1326 of Title 8 of the U.S. Code--known together as the “illegal entry statutes”--are the recodified descendants of the Act of 1929. The constitutionality of these statutes is the subject of this Article.

This Article examines United States v. Carrillo-Lopez, decided in August 2021, which held that Section 1326 violates equal protection guarantees under the Fifth Amendment due to the statute's racist origins. In its holding, the U.S. District Court for the District of Nevada came to its conclusion by applying strict scrutiny and the Arlington Heights factors. The court set aside precedent and instead applied the two-part test and five factors laid out in Village of Arlington Heights v. Metropolitan Housing Development Corp. Carrillo-Lopez goes against the grain of established precedent to challenge the inherent tension between the plenary power of Congress under Article I, Section 8 of the Constitution and the guarantees under the Due Process Clause of the Fifth Amendment.

Part II of this Article reviews the legislative history up to and including Section 1326. Part III then summarizes the decision in Carrillo-Lopez and subsequent case law and pending litigation. This includes the government's appeal to the Ninth Circuit. Part IV analyzes the Carrillo-Lopez opinion, focusing on: (1) whether strict scrutiny should apply; (2) why the court's holding was correct--discussing both why the court's holding was correct under the Arlington Heights factors and why recodification of the law cannot effectively erase its prior racial animus--and finally, (3) the potential impacts of this case and outcome on appeal. Part V provides a brief conclusion.

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In the 1920s, the federal government relied on the pseudoscience of eugenics in enacting the Act of 1929. At the same time, the economic interests of large agribusiness in the American Southwest relied upon the labor of Mexican immigrants, documented and undocumented, as a cheap and exploitable source of labor. Congress considered--and even endorsed--both of these influences when shaping the Act of 1929. It was passed into law to allow the flow of Mexican immigrants over the border to meet labor demands while also assuring their deportability to protect the whiteness of American society. This policy was endorsed again in 1952, with the recodification of the Act of 1929 as Section 1326.

In August 2021, Section 1326 was struck down in United States v. Carrillo-Lopez in the Federal District Court in the District of Nevada. The court concluded that the statute violated the Due Process Clause of the Fifth Amendment. While significant tension exists between Congress's plenary power over immigration matters and the due process rights of the Fifth Amendment, the court came to the right conclusion. Strict scrutiny is the proper standard of review.

When considering a statute's validity, there must be a balance between the equal protection concerns of the Fifth Amendment and the plenary powers of Congress. Through testimony provided in Carrillo-Lopez, the court learned that Section 1326's predecessor was enacted with particular animus against Mexican immigrants, and so the court held that it would be a gross miscarriage of justice to continue ignoring this xenophobic history. Additionally, the recodification in 1952, which rolled the Act of 1929 into Section 1326, did not erase the embedded racial animus. In fact, Congress did not disavow or even discuss the embedded racial animus when it adopted the previous statute in nearly identical form as its predecessor. If anything, the 1952 Congress had its own racial animus and xenophobic reasons for recodifying the statute. Therefore, when balancing the constitutional tension between equal protection guarantees and plenary power over immigration, the Carrillo-Lopez opinion came to the right conclusion by favoring equal protection concerns and applying strict scrutiny.