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 explicit and impermissible discriminatory purpose

Question Presented for Review The government prosecuted Alfredo Viveros-Chavez under 8 U.S.C. § 1326, a statute with problematic origins steeped in racial animus. Congress criminalized illegal reentry into the United States in 1929 at the urging of white supremacists, nativists, and eugenicists, to keep America’s bloodline “white and purely Caucasian.” The core focus of the illegal reentry provision has remained substantively the same since 1929. And § 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. While acknowledging the statute’s racist origins, neither the district court nor the Seventh Circuit properly applied Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) and its progeny. As a result, both courts failed to recognize that Congress violated the Fifth Amendment’s prohibition against race discrimination by criminalizing illegal reentry with a purpose. Instead, the Seventh Circuit upheld the law based on a reenactment in 1952 which did not grapple 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 explicit and impermissible discriminatory purpose. i