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.
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