The topic of the moment here at Manhattan Contrarian has been how judges with a religious zeal to perfect the world (according to their own woke vision) can go completely off the rails with sweeping orders to transform the entire country. In Sunday’s post, it was a Federal District Judge in Oregon (Ann Aiken — we believe in naming names here at MC) and another one from Los Angeles sitting by designation on the Ninth Circuit (Josephine Staton) seeking to establish the use of general constitutional provisions (Fifth Amendment Due Process clause and Fourteenth Amendment Equal Protection clause) as a basis for a court to require the government to end all use of fossil fuels. Fortunately, a couple of cooler heads on the Ninth Circuit stepped in to put a stop to that one. In Tuesday’s post it was judges in the Netherlands (including the Supreme Court) and Germany (Constitutional Court), not to mention the European Court of Human Rights, similarly using amorphous concepts like the “sustainability principle” and the “precautionary principle” and the “fairness principle” and a constitutional duty (Netherlands) to “keep the country habitable” again to justify sweeping judicial orders restricting fossil fuel use.

For today’s adventure in wild judicial activism, we have a Federal District Judge from Nevada essentially declaring all federal immigration law unconstitutional on the ground that it is racist. I’m not making this up. The actual decision was somewhat narrower than that description only because it just concerned striking down one particular statute as it applied to one criminal defendant before the court; but if the reasoning of the decision is correct and is applied by other courts and taken to its logical conclusion, it would essentially mean that all restrictions on immigration are unconstitutional because they have a disparate impact on racial minorities.

The case in question, United States v. Carillo-Lopez, was handed down by the Federal District Court in Nevada on August 18. I have seen remarkably little coverage of this case. The judge is named Miranda Du — an Obama appointee of course. Here is a copy of the decision. Mr. Carillo-Lopez had been deported twice from the United States, but was found once again within the U.S. borders. He was indicted under 8 U.S.C. Section 1326, which makes it a crime to be “found in the United States” while subject to a deportation order. The case came before the court on Mr. Carillo-Lopez’s motion to dismiss the indictment.

If you are suspecting that prosecutions under 8 U.S.C. Section 1326 must be relatively common, you are right. Indeed it is one of the most frequently prosecuted of all federal crimes, if not the most frequently prosecuted. In 2015 the US Sentencing Commission issued a Report on “Illegal Reentry Offenses.” That Report found that of a total of 80,035 federal criminal cases that were prosecuted for the year 2013, some 18,498 were for illegal reentry — in other words, close to a quarter of all prosecuted federal crimes for that year were for this one offense. There is no reason to think that the numbers have gone down since.

Mr. Carillo-Lopez argued that the statute violated the Equal Protection Clause of the Fourteenth Amendment, and therefore should be declared unconstitutional and thrown out. You might wonder how thousands of defendants every year for the last 70 years (the statute was enacted in 1952) had somehow missed this defense. I certainly do.

But anyway, the good Judge Du took the argument seriously, and decided that Mr. Carilllo-Lopez only had to prove two things to establish his Equal Protection Clause argument, namely (1) “disparate impact,” and (2) that “racially discriminatory intent or purpose” was a “motivating factor” in the decision to pass the statute.

I’ll give you a few of Judge Du’s insightful remarks on the proof of the two elements. First, on “disparate impact”:

Carrillo-Lopez argues, convincingly, that Section 1326 disparately impacts Mexican and Latinx defendants. (ECF No. 26 at 20.) 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.

Do you mean that some overwhelming majority of people crossing the southern border illegally are either “Mexican” or “Latinx”? Who could have guessed? And the court has an answer for that argument:

[T]he Court is unpersuaded by the government's argument that geography explains disparate impact.

So there!

But how are you going to show the second element, that the statute was motivated by “racially discriminatory intent”? Easy: call in the “experts.” Carillo-Lopez had one named Lytle Hernandez, who traced the origins of the statute back to the 1920s. Excerpt:

At the Hearing, Professor Lytle Hernández emphasized how racial animus “bec[am]e more intense” heading into the 1920s, a period referred to as the “Tribal Twenties, ” when nativism and eugenics became more widely accepted and began to impact Congressional immigration proposals. . . . Professor Lytle Hernández also addressed the “Juan Crow regime” that developed in the 1920s, “a racialized subjugation system in place that mirrors what [was] happening in the American South.”

Nothing in the decision indicates that the good judge had any appreciation for the fact that under her reasoning it would be essentially impossible for Congress to enact any statute seeking to control immigration from Mexico and Latin America.

The decision does indicate that at least three other district courts have recently had the same Equal Protection arguments presented to them as to the same immigration statute, and all those courts have upheld the statute. Not every judge in our country is equally nuts. But there are more than a few, and four years of Biden will add significantly to their ranks.

Presumably this case now goes to the Ninth Circuit. Of course, that’s assuming that the Biden/Garland Justice Department takes an appeal, which is not necessarily a foregone conclusion. But they do seem to be pursuing at least some cases under this statute. The Ninth Circuit is known, even after several Trump appointments, as the most liberal of the courts of appeal in the country. But some cases are too much even for them, as we saw a few days ago in the climate change matter.