B. The 1952 Act Failed to Reconsider, Let Alone Purge, the Racial Animus Of The Criminal Entry and Reentry Provisions

Although the 1952 Act recodified the criminal entry and reentry provisions, with some revisions, the anti-Mexican racist views that underpinned the 1929 legislation remained relevant. Under this Court's precedent, no change in Congress's intent should be inferred from the revision and consolidation of statutes where, as here, there is no “clearly expressed” intention to “change their effect” or “alter[] the scope and purpose” of the enactments. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227 (1957). The recodified 1952 Act may have been “free of discriminatory taint” had Congress “actually confront[ed] [the 1929 Act's] tawdry past in reenacting it” and produced a law “untethered to racial bias.” Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring). But Congress did neither.

The 1952 Act changed immigration law and policy in several ways, but the major changes did not cleanse or even address the anti-Mexican sentiment underpinning the 1929 legislation. First, Congress repealed the complete exclusion of Asian immigrants from naturalization, although it maintained quotas for Asian immigrants. Ngai 238. Second, the 1952 Act codified suspension of deportation for individuals who had been continually present in the country for seven years with spouses or children who were United States citizens. This modification benefited a large number of European immigrants, but *23 not many Mexicans: Of the approximately 35,000 suspensions of deportation from 1941-1960, nearly three-quarters were of Europeans; only 8% involved Mexicans. Ngai 82-88 & n.120, 239.

The 1952 Act also “brought the many fragments of the nation's immigration and naturalization laws under a single code. Still, it was less an overhaul than a hardening of existing policy, with a few reforms and innovations” calculated to address the new Cold War context. Ngai 237. Indeed, the 1952 Act only reinforced the central view of the 1929 debates: that the arrival and assimilation of “aliens” who could undermine the uniformity of the white “cultural background” of the United States was undesirable and, indeed, a threat to national security. President Truman actually vetoed the Act “principally for its racist features,” but Congress overrode his veto. Id. at 239. Scholars have noted that the 1952 Act's emphasis on “similarity of cultural background” was an attempt to preserve the United States' “Western” identity through immigration policy. Id. at 237.

With respect to the criminal entry and reentry provisions specifically, the 1952 Act made no substantive changes to ameliorate their original racist purpose. See Immigration and Nationality (McCarran-Walter) Act, ch. 477, § 276, 66 Stat. 229 (1952); see also Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1326-1327 (2010) (Prosecuting Immigration); Doug Keller, Re-Thinking Illegal Entry and Re-Entry, 44 Loy. U. Chi. L.J. 65, 83 (2012). To the contrary, the 1952 Act's changes made unlawful entry and reentry easier to prosecute, thus exacerbating rather than diminishing their racially discriminatory harm.

As to reentry, Congress took what were previously three scattered provisions (targeting anarchism, prostitution, and general illegal reentry) and combined them into *24 one provision. The illegal reentry portion of that statute largely tracks Section 1326 to this day. Keller, 44 Loy. U. Chi. L.J. at 84. The revised reentry provision, unlike its predecessor, explicitly penalizes being “found in” the United States after having been deported (if the Attorney General has not granted permission to return). As the relevant committee report explained, “[t]his change [permits prosecution where] it is not possible for the Immigration and Naturalization Service to establish the place of reentry, and hence the proper venue, arising in prosecutions against a deported alien under the 1929 act.” See Joint Hearings on S. 716, H.R. 2379, and H.R. 2816 Before the House and Senate Subcomms. of the Comms. on the Judiciary, 82d Cong., 1st Sess. 716 (1951). In other words, the change made prosecution easier by allowing defendants to be tried in any district in which they were found, rather than requiring the prosecutor to establish the place of reentry to try a defendant consistent with the Sixth Amendment. Keller, 44 Loy. U. Chi. L.J. at 85 & nn.99-100.

Another (seemingly benign) revision also worked to make it easier to prosecute and convict immigrants. The 1952 Act lessened the penalty for a first illegal entry from one year to six months in prison, which made it a petty offense. Prosecuting Immigration 1326-1327; Keller, 44 Loy. U. Chi. L.J. at 83-84 & n.94. As a result, after 1952, defendants charged with a first illegal entry lost the right to a jury trial. Prosecuting Immigration 1327 & n.268; Keller, 44 Loy. U. Chi. L.J. at 84. At the time it made this change, Congress had been told that grand juries in El Paso in the 1940s refused to indict in more than 90% of cases because the criminal entry laws were “locally unpopular.” Prosecuting Immigration 1327 & n.269 (quoting Immigration and Naturalization: Hearing Before the Senate Subcomm. on Immigration of the Senate *25 Comm. on the Judiciary, 80th Cong., 1st Sess. 30 (1948)). That diminished process not only endured through subsequent reenactments of the criminal entry provision, but eventually opened the door to having magistrate judges, rather than Article III judges, preside over illegal entry trials. Id. at 1326-1327.

These amendments laid the groundwork for the massive use of illegal entry and reentry prosecutions that exists to this day. See Prosecuting Immigration at 1281-1282,1353 & fig.4; Ingrid V. Eagly, The Movement to Decriminalize Border Crossing, 61 B.C. L. Rev. 1967, 1984 & fig.2, 1988 & tbl.1 (2020) (The Movement). They cannot plausibly be read to contain a clear expression of an intent to purge the criminal entry and reentry provisions of their racist origins. Accordingly, no change in Congress's intent should be inferred from these amendments. See Fourco Glass Co., 353 U.S. at 227. The racist intent that propelled the original enactment of these provisions in 1929 remained operative after the 1952 recodification.