“Racism against Asian immigrants forms the basis of the plenary power doctrine and much of modern immigration law. The earliest federal immigration restrictions were designed to exclude Chinese immigrants, and the plenary power doctrine was created to justify those laws. Later cases never revisited the racist underpinnings of the doctrine and continued to rely on the Chinese exclusion cases.” - Asian Americans Advancing Justice amicus brief in U.S. v. Carrillo-Lopez
In the last several years, Latinx community members have been challenging the racist underpinnings of two U.S. laws, known as Sections 1325 and 1326, that criminalize immigrants. Through cases spread across more than 10 states, they are bringing to light how Congress enacted these laws to keep Mexican people out of the U.S. and create a majority-white country. Meanwhile, the Biden administration continues to use a legal concept rooted in anti-Asian racism called the “plenary power doctrine” to shield these laws from accountability to our Constitution and civil rights laws.
Still, as a result of community perseverance, a U.S. district court judge ruled for the first time last year that Section 1326 is unconstitutional because Congress passed the law with racist intent. Judge Miranda Du wrote in their ruling: “The Court is unpersuaded that a criminal law enacted by Congress is free from constitutional equal protection constraints, even if the offense relates to immigration. The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statues in violation of equal protection.”
Since then, the U.S. government has appealed Judge Du’s ruling and the case led by Mr. Gustavo Carrillo-Lopez will be heard by the Ninth Circuit on December 8.
With Asian American and immigrant rights organizations and pro bono law firms Munger, Tolles & Olson LLP and McKenzie Scott, we’ve led a series of amicus briefs in many of these cases, including Carrillo-Lopez, Rodrigues-Barios, and Amador-Bonilla. In these briefs, we call on federal courts to limit, if not prevent altogether, the federal government using the plenary power doctrine to evade accountability for violating people’s constitutional rights.
What are Sections 1325 and 1326?
Since 1929, Sections 1325 and 1326 have been used to criminally prosecute people who cross the U.S. border seeking safety, freedom, or to reunite with their families. Anyone who enters or reenters the U.S. without authorization is subject to both civil enforcement and criminal prosecution. That means someone could be sentenced to decades in federal prison for crossing the border, and after their sentence, could be double punished with incarceration in ICE detention and deportation. NIPNLG explains the laws’ origins in a fact sheet about Sections 1325 and 1326:
During the 1920s especially, the theory of eugenics - that certain races are genetically better than others and that people should only reproduce with members of their own race - gained popularity in the United States, and members of Congress openly subscribed to this racist theory. Eugenics motivated the passage of the National Origins Act and both 1325 and 1326. The passage of 1325 and 1326 represented a compromise between agribusiness (who could still exploit Mexican laborers, who were subject to deportation, and under 1325 and 1326, prosecution as well) and the white supremacist nativists, who accepted [these] criminal laws as sufficient tools to keep the United States white.
A new video by the Immigrant Justice Network summarizes how these laws have also helped fuel mass incarceration. Before 2020, when the U.S. closed its borders, prosecutions for violations of 1325 and 1326 accounted for nearly 60% of all federal criminal prosecutions.
'The plenary power doctrine belongs on the ash heap of history.'
Our amicus briefs detail the anti-Chinese racism that “lies at the foundation of federal immigration law,” from the Page Act of 1875 and Chinese Exclusion Act in 1882 to the Scott Act of 1888, which barred all Chinese workers from entering the U.S. including people who had once legally resided in the country, and the Geary Act of 1892, which was the first to penalize people with criminal convictions for their immigration status.
The briefs go on to explain how the Supreme Court, in its Chae Chan Ping v. U.S. ruling in 1889, created the plenary power doctrine to rationalize these racist laws. Just four years later, in the Fong Yue Ting case, the Supreme Court extended the reach of this unchecked and discriminatory power by agreeing the government could deport Chinese workers who were lawfully living in the U.S. without a jury trial if they could not establish legal residence through a witness “other than a Chinaman.” In other words, the Supreme Court sanctioned an explicitly racist law that subjected a person of Chinese descent to deportation unless they could find a white person to vouch for them.
Since then, the plenary power doctrine has been used by the federal government to violate people’s rights with impunity, even as its racist origins are understood by more and more people.
As our briefs state, “the doctrine has never outgrown its racist origins. Modern cases simply reiterate the old rationalizations offered for excluding Asian immigrants and apply them to other immigrants, even as those rationalizations have grown more indefensible…”
In a couple of the days, the Ninth Circuit will hear Mr. Carrillo-Lopez’s case to end Section 1326 and hold the government accountable for the racism underlying its laws, from their origins criminalizing Chinese and Chinese American community members to how they fuel the mass incarceration of Black and Latinx people today.
For decades, immigrants have joined across race and geography to realize a country where every family can thrive and feel safe, from the solidarity between Filipinx and Mexican farm workers in asserting their rights at work to the multiracial movement to end ICE transfers led by directly impacted Black, Latinx, and Southeast Asian community members. Legal cases and community advocacy to end Sections 1325 and 1326 and the plenary power doctrine stand on this deep and expanding legacy. Learn more and help raise awareness by following #End1326. You can also watch the oral arguments live stream on December 8 from the Ninth Circuit's website.