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May 7, 2020

SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circuit panel solicited amicus briefs of the case, and then concludes this way: 

No extraordinary circumstances justified the panel’s takeover of the appeal.  Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others.  Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.  Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

Justice Thomas concurs in an opinion that starts this way:

I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U.S.C. §1324(a)(1)(A)(iv) is unconstitutionally overbroad.  In my view, however, the Court of Appeals’ decision violates far more than the party presentation rule.  The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.  That doctrine provides that “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)).  Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application.  It appears that the overbreadth doctrine lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.  I would therefore consider revisiting this doctrine in an appropriate case.

May 7, 2020 at 10:46 AM | Permalink

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