III. In Light of the Racist Origins of Section 1326, the Court Should Construe Any Statutory Ambiguity in Favor of Respondent

Where, as here, a criminal law's original purpose was defined by racial animus, the Court should interpret any ambiguity in a provision in favor of the defendant-in this case, Respondent.

*29 This Court just recently emphasized, in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), that where racism infected a law's origins, that uncomfortable history must not be ignored. Ramos concerned the constitutionality of Louisiana and Oregon laws permitting non-unanimous jury convictions. These state rules had originally been enacted for racist reasons, but had since been recodified in a non-discriminatory context. The Court struck down the nonunanimous jury laws, in part, because it could not ignore the “racially discriminatory reasons that [the state] adopted [its] peculiar rules in the first place.” Ramos, 140 S. Ct. at 1401. The majority opinion determined that the openly racist purpose of the laws demanded acknowledgement, and pondered how the Court could possibly “ignore the very functions those rules were adopted to serve.” Id. at 1401 n.44.

Although Louisiana and Oregon recodified the nonunanimous jury laws at issue in Ramos “in new proceedings untainted by racism,” this Court declined to “supply an excuse for leaving an uncomfortable past unexamined.” Ramos, 140 S. Ct. at 1401 n.44. As in Ramos, the fact that Sections 1325 and 1326 have been reenacted and recodified since their inception does not purge them of their original racist intent. As Justice Kavanaugh emphasized in his concurrence, were courts to turn a blind eye to a statute's disturbing background, “the resulting perception of unfairness and racial bias [could] undermine confidence in and respect for the criminal justice system.” Id. at 1418. In construing Section 1326(d) here, this Court should likewise be guided by the ever-present “imperative to purge racial prejudice from the administration of justice.” Ibid. (Kavanaugh, J., concurring in part) (citation and internal quotation marks omitted).

*30 While this case does not present the Court with the occasion to consider the question whether the racist history of Sections 1325 and 1326 renders them unconstitutional, that history can and should inform the Court's approach in the more modest undertaking before it today: narrowly construing Section 1326(d) to afford additional judicial review. Such an interpretation could ameliorate some of the discriminatory impact flowing from the enforcement of the substantive criminal reentry provision.

Adopting a defendant-favorable construction of Section 1326(d) would properly leave for another day the constitutional question whether the criminal reentry provision, like its misdemeanor counterpart, violates the Fifth Amendment because it is infected with racial animus. Holding that Respondent did not satisfy the requirements of Section 1326(d) even though he was deported pursuant to an unlawful removal order would perpetuate the world the Nativists dreamed of: one in which the law facilitates the expulsion of Mexican immigrants to ensure they do not dilute the racial purity of the United States.

Permitting the punishment of Mr. Palomar-Santiago, a Mexican immigrant, even though he should not have been deported in the first place, is precisely the result Senator Blease would have wanted.

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