Presumption of Legislative Good Faith Reaffirmed: Eleventh Circuit Joins Nationwide Consensus Upholding 8 U.S.C. § 1326 Against Equal-Protection Challenges

Introduction

In United States v. Jorge Cesar Ferretiz-Hernandez (consolidated with appeals by co-defendants Ignacio Felix-Salinas and Elias Chiroy-Cac), the Eleventh Circuit confronted a sweeping constitutional attack on 8 U.S.C. § 1326—the federal criminal statute penalising unlawful re-entry after removal. The defendants argued that the provision violated the equal-protection component of the Fifth Amendment because its “ancestor,” the Undesirable Aliens Act of 1929, was enacted with overt anti-Mexican animus.

The appeal forced the court to address whether the alleged discriminatory taint of the 1929 Act infected the 1952 reenactment and the modern, repeatedly amended version of § 1326. More broadly, the decision clarifies how courts should treat historical evidence of past discrimination when evaluating newer iterations of the same statutory scheme and firmly locates the burden of proving discriminatory intent on the challenger.

Summary of the Judgment

• Holding: 8 U.S.C. § 1326 survives the Fifth Amendment equal-protection challenge; the statute was neither enacted nor maintained with discriminatory purpose.
• Standard Applied: The court assumed arguendo that the challengers were entitled to the Arlington Heights multifactor framework (the more demanding standard for the government) but held they still failed to prove intent.
• Key Findings:
  • Congress enjoys a presumption of legislative good faith; past discriminatory motives (1929 Act) are not automatically imputed to later Congresses (1952 & subsequent).
  • The challengers’ evidence—historical rhetoric, isolated slurs, statistical disparities—did not credibly show that the 1952 Congress, or any later Congress that amended § 1326, acted with racial animus.
  • Disparate impact alone is insufficient for finding a constitutional violation.
• Result: District court’s denial of motions to dismiss affirmed; convictions stand.

Analysis

A. Precedents Cited and Their Influence

• Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) – provides the analytic framework for evaluating facially neutral statutes alleged to be motivated by discriminatory purpose.
• Washington v. Davis, 426 U.S. 229 (1976) – establishes that disparate impact, without discriminatory intent, does not violate equal protection.
• Abbott v. Perez, 585 U.S. 579 (2018) – affirms the “presumption of legislative good faith” and places burden of proof on the challenger.
• Sister-Circuit Cases Rejecting Similar Challenges: Suquilanda (2d Cir. 2024), Sanchez-Garcia (4th Cir. 2024), Barcenas-Rumualdo (5th Cir. 2022), Viveros-Chavez (7th Cir. 2024), Carrillo-Lopez (9th Cir. 2023), Amador-Bonilla (10th Cir. 2024). The Eleventh Circuit aligns itself with this unanimous trend.

B. The Court’s Legal Reasoning

1. Choice of Standard: The government urged rational-basis review under Congress’s plenary power over immigration; defendants sought strict scrutiny. The court sidestepped by applying the more exacting Arlington Heights test, thereby ensuring its ruling would stand even under the challengers’ preferred framework.
2. Burden Allocation: Echoing Abbott, the panel emphasised that the challenger must prove discriminatory purpose. Courts may not presume illicit motives or shift the burden to Congress to disprove intent.
3. Temporal Disconnect & “Taint” Doctrine:
   • The 1929 Act’s racist pedigree is not legally dispositive; reenactment in 1952 after extensive legislative overhaul necessitates separate intent analysis.
   • Legislative “taint” does not perpetuate like “original sin.” Each Congress is presumed to legislate in good faith unless proven otherwise (Johnson v. Governor of Fla., 11th Cir. 2005).
4. Evaluation of Arlington Heights Factors:
   • Impact: High proportion (≈97%) of § 1326 prosecutions involve Hispanic defendants. Court treats this as foreseeable but notes absence of population-based comparison data and availability of geographic explanations (1,954-mile land border).
   • Historical Background & Sequence of Events: 1952 Congress focused on Cold-War concerns (Communism), comprehensive codification, not anti-Latino rhetoric.
   • Contemporary Statements: Isolated derogatory uses of “wetback” by one legislator and a Deputy Attorney General deemed too thin to impute motive to entire Congress.
   • Procedural/Substantive Departures: None; § 1326 passed through ordinary legislative channels.
   • Less Discriminatory Alternatives: Not meaningfully briefed; court found this factor neutral.
5. Statistical Evidence: Court held that without baseline data showing how many non-Hispanic deportees have the opportunity to re-enter, raw prosecution percentages tell an incomplete story.

C. Impact of the Decision

• Solidifying Circuit Consensus: All regional circuits have now rejected equal-protection attacks on § 1326. Supreme Court denials of certiorari in Carrillo-Lopez and Viveros-Chavez make further review less likely.
• Guidance on “Historical Taint” Claims: Litigants must produce evidence targeting the specific enactment under attack. Simply tracing lineage to an admittedly racist statute is insufficient.
• Burden of Proof Clarified: The decision underscores that challengers carry the full evidentiary burden—even in politically sensitive contexts like immigration.
• Practical Litigation Effects: Motions to dismiss § 1326 indictments on equal-protection grounds will now face near-certain denial in the Eleventh Circuit absent new, compelling evidence.
• Legislative-Judicial Boundaries: Majority opinion discusses Speech-or-Debate Clause considerations, signaling reluctance to invite intrusive discovery into legislative motives.

Complex Concepts Simplified

• Equal-Protection Component of the Fifth Amendment
  The Fifth Amendment lacks the explicit equal-protection clause found in the Fourteenth. Nevertheless, the Supreme Court interprets its Due Process Clause as containing an implied guarantee against federal governmental discrimination.
• Arlington Heights Framework
  An eight-factor, evidence-based test courts use to decide whether a facially neutral law hides a discriminatory purpose. Crucially, plaintiffs must prove both (i) disparate impact and (ii) intent.
• Presumption of Legislative Good Faith
  Courts start from the assumption that legislators act constitutionally. Plaintiffs must rebut this with concrete evidence; past wrongdoing by earlier Congresses does not automatically taint later enactments.
• Disparate Impact vs. Discriminatory Purpose
  “Impact” relates to a law’s effects; “purpose” refers to lawmakers’ motivations. Only when both converge does strict judicial scrutiny apply to facially neutral statutes.
• Speech or Debate Clause
  A constitutional provision shielding legislators from judicial inquiry into their legislative acts—limiting courts’ ability to compel testimony about motives.

Conclusion

United States v. Ferretiz-Hernandez reaffirms that modern courts will not strike down federal statutes on equal-protection grounds absent clear, contemporary proof of discriminatory purpose. The Eleventh Circuit’s meticulous adherence to the presumption of legislative good faith, coupled with its alignment to sister-circuit authority, likely ends the current wave of constitutional challenges to § 1326 in the federal appellate courts. Future litigants will need significantly stronger evidence—linking current congressional action to animus—to overcome this fortified precedent.