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Jose Figueroa’s case presented “little out of the ordinary” for the federal courts1. His was a “multimillion-dollar” drug operation run out of Wisconsin that fell apart when a dealer and a partner flipped and gave testimony for the government.2 Only in the closing moments of sentencing 3 did Figueroa’s case take an unusual turn, one that would in due course elicit an unusual opinion from Judge Diane Wood of the Seventh Circuit Court of Appeals. In the process of assigning Figueroa to the “low end of Figueroa’s advisory guidelines range,” 4 District Court Judge Rudolph T. Randa also offered, sua sponte, a “lengthy and disconnected lecture” that “sap[ped]” the appellate court’s “confidence” in the sentencing’s integrity.5 Central to Judge Randa’s ex tempore peroration was the observation that “Figueroa [was] of Mexican descent. 6 ” This led him to “comment[] about Mexico and...Mexico’s contribution to drug and immigration issues in the United States. ‘The southwest is being overwhelmed,’ the judge remarked,” before “lash[ing] out at illegal immigration, occasionally referring to ‘you people’ or ‘those people.’7 Exercising a characteristic measure of delicacy and tact, Judge Wood characterized these remarks by Judge Randa’s comments as showing “an odd focus on nation-states and national characteristics” 8 and as falling short of the rule that a sentencing court “adequately explain” its judgment.9 Her majority opinion held back, though, from determining whether mere invocation of Figueroa’s “national origin, standing alone, would require reversal.”10

Judge Wood’s opinion in United States v Figueroa11passes through a sort of double movement in relation to the idea of national origin discrimination. On the one hand, it toys with the possibility that the sentencing judge’s invocation of Figueroa’s Mexican origin—as distinct, apparently, from his race, his ethnicity, or his citizenship or immigration status—played a motivating role in the analysis. But it was not an adequate or rational explanation, Judge Wood implied, to invoke a person’s nationality as a ground for imposing a sentence upon them. Indeed, it is not hard to infer that reliance on nationality would not just be irrational, but also a distinctly constitutional wrong—a “suspect classification” in the argot of equal protection law.12

But on the other hand, there is a pulling back in Judge Wood’s opinion from the implications of this position. At the cusp of giving a constitutional analysis, she veers abruptly away from characterizing Judge Randa as animated by animosity toward Figueroa because of his national origin. The opinion also holds back from elucidating what, exactly, is problematic about the invocation of a defendant’s national origin, or indeed the predicate step of explaining what counts as a national origin in the first instance. (Would different legal or normative concerns have been raised had the district court labeled Figueroa “Latino” or “Central American”? “Hispanic”? “Of a distinct race?” Does it matter that, in common parlance, these labels might be imprecisely used in an interchangeable way with national origin?) The result of this double movement is a published opinion gesturing toward, without substantiating or explaining, a distinctive moral and legal harm from national origin discrimination.

Perhaps this explanatory lacuna is inconsequential; perhaps the harm of national origin discrimination is obvious. I think not. To the contrary, I think we should not rush to assume either that national origin discrimination is either conceptually clear or clearly unwarranted. To see this, take up once again the facts of Figueroa’s case. Glossing his sentencing speech with a surfeit of (probably unearned) interpretive generosity, we might characterize Judge Randa as offering a view about the expected distribution of narcotics dealers by formal nationality as indexed by one’s pass-port. With a charity verging on inculpating complicity, we might even understand him to be saying that the expected general deterrent effect of a sentence would be greater because Figueroa’s punishment would have special communicative value for his cohort as defined by national origin rather than by criminality.13

The argument for this interpretation might run as follows: The epistemic and moral functions of national origin are distinct from their analogs in the race and gender context. Punishing one individual has a general deterrence effect on his or her cohort as defined by nationality; no such general deterrence effect when race is in play. Moreover, it might be argued, while certain nationality groups have been subject to persistent patterns of historical discrimination,14 not every one has been an object of calumny in the past.15 No national-identity category, indeed, has played the shaping role in US society and law associated with either racial or gender identities. It’s not obvious, the argument would go, that we should view national origin discrimination as a distinctive kind of moral or legal wrong akin to racial or gender discrimination. Instead, it is more akin to “merely” irrational preferences such as a dislike of people with green eyes, large ears, or precisely beveled mannerisms. As a result, it is not obvious—whether as a matter of originalist method, doctrinal casuistry, or ordinary moral logic—that we should utter national origin in the same condemnatory breath as race or gender given its distinctive historical specificity, phenomenological heterogeneity, and conceptual ambiguity. On this view, Judge Randa did nothing wrong invoking Figueroa’s national origin.And so there was no cause for the Seventh Circuit Court of Appeals to reverse his actions—and nothing that court said suggests otherwise. Or so the argument would go.

The aim of this short Essay—part of a Festschrift to celebrate Judge Diane Wood—is to explore the role that national origin discrimination plays in the US jurisprudence of equality. The double movement of the Figueroa opinion, I will suggest, provides a clue that this role is not a well-defined or closely theorized one. Although my argument is at points critical of the doctrine’s structure and application, I should be clear up front that the inspiration for the Essay—Judge Wood’s opinion—is not the object of any of that criticism. To the contrary, that opinion is exemplary of a sensitive and mindful jurisprudence that accounts carefully for the complex effects that pejorative stereotypes and structural dynamics of stratification can play in constraining life choices. The ambivalence of the Figueroa opinion is instead productive. It invites inquiry into questions close to the heart of one of the Constitution’s central moral commitments: Why should discrimination of a given sort contravene the equal protection commitments lodged in the Fifth and Fourteenth Amendments? How fungible are the suspect classifications? And when should courts enforce a rule of strict scrutiny beyond the usual suspects? Again, to be clear up front, I do think that national origin discrimination is constitutionally problematic. But I also think we have no clear explanation why from the courts. Exploring the flaws in the defense of Judge Randa’s sentencing—and filling the gaps in Judge Wood’s opinion—helps us fill in some of the larger dynamics of our constitutional commitment to equality.

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