Whether a legislature can cleanse the taint of a racially discriminatory law by silent reenactment or amendment

Question Presented for Review The government prosecuted Gustavo Carrillo-Lopez under 8 U.S.C. § 1326, a statute with undisputed racist origins. Congress criminalized illegal reentry into the United States in 1929 at the urging of “proud” white supremacists, nativists, and followers of eugenics theorists, to keep the American bloodline “white and purely Caucasian.” The core focus of the illegal reentry provision has remained substantively the same since 1929. Section 1326 continues to be wielded as a discriminatory tool driving the mass incarceration of Latino people, with 99% of statutory prosecutions involving Latin-American defendants. Applying Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) and its progeny, the district court dismissed the indictment, holding Congress violated the Fifth Amendment’s prohibition against race discrimination by criminalizing illegal reentry with a discriminatory purpose. But the Ninth Circuit upheld the law based on a reenactment in 1952 and amendments in the 1980s and 1990s, none of which grappled with the law’s racist past. This case poses important questions about the role of appellate courts in applying the framework of Arlington Heights to a federal law used for nearly 20% of all federal criminal prosecutions, along with countless civil rights cases. The question presented is: Whether a legislature can cleanse the taint of a racially discriminatory law by silent reenactment or amendment when the law was originally adopted for an impermissible discriminatory purpose. i