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June 23, 2023
By 7-2 vote, SCOTUS preserved prohibition on inducing illegal immigration against First Amendment challenge
The Supreme Court this morning handed down another criminal law opinion today with US v. Hanson, No. 22–179 (S. Ct. June 23, 2023) (available here). The opinion for the Court was authored by Justice Barrett and begins this way:
A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U.S.C. § 1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech” — let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292 (2008). We reverse.
Justice Thomas authored a concurrence in order "to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role."
Justice Jackson, joined by Justice Sotomayor, authored a dissent that gets started this way:
At bottom, this case is about how to interpret a statute that prohibits “encourag[ing] or induc[ing]” a noncitizen “to come to, enter, or reside in the United States” unlawfully. 8 U.S.C. § 1324(a)(1)(A)(iv). The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration — and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.
It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices. Moreover, by acquiescing to the Government’s newly minted pitch to narrow this statute in order to save it, the majority undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the books in order to avoid chilling constitutionally protected speech. See Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965). Because the majority’s interpretation of § 1324(a)(1)(A)(iv) diverges from the text and history of the provision, and simultaneously subverts the speech-protective goals of the constitutional doctrine plainly implicated here, I respectfully dissent.
June 23, 2023 at 10:13 AM | Permalink
Comments
Justice Jackson continues to do what Biden hired her to do: Be a reliable vote for criminals. Of course, that by itself does not mean her analysis is incorrect. But when she's losing Kagan, Roberts and Kavanaugh, and getting only Sotomayor, that's a pretty good clue.
She does say one interesting thing, however: "It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices." As a general matter, that is correct -- and closely mirrors Justice Stevens' wise dissent in the remedial portion of Booker, where he pointed out that making the guidelines advisory was flatly contrary to Congress's explicit choice to avoid advisory guidelines in favor of mandatory ones, because Congress wanted to be more emphatic in cutting back judges' sentencing discretion.
Posted by: Bill Otis | Jun 23, 2023 10:55:36 AM
Bill, I trust you saw that Justice Jackson split from Sotomayor and Kagan in the crim-law adjacent case Pugin.
And, notably, the new USSC has ask for comment on its priorities. Perhaps you'll write in to tell them they should make all the guidelines subject to proof BRD to juries so that they could become presumptive again. (Congress would need to make them presumptive by statute, I think, but having the constitutionally required procedures in place would be a good start.)
Justice Breyer in the Booker remedy opinion said the choice was up to Congress, but nearly 20 years later we have seen Congress in the hands of both parties and yet not even a serious bill introduced to make the guidelines mandatory again (though we have seen many serious sentencing reform bills over this period).
Posted by: Doug B | Jun 23, 2023 12:27:39 PM
I think I noted back when the case was being heard that this case was one in which it would be easier to write an opinion narrowing the reach of the statute and affirming than one finding the statute unconstitutional.
Posted by: tmm | Jun 23, 2023 1:48:16 PM
Doug --
"I trust you saw that Justice Jackson split from Sotomayor and Kagan in the crim-law adjacent case Pugin."
But her vote there was superfluous, so she got a freebie. She's already apt at the internal politics of the Court.
"And, notably, the new USSC has ask for comment on its priorities. Perhaps you'll write in to tell them they should make all the guidelines subject to proof BRD to juries so that they could become presumptive again."
I'll bet they rush to their in-box every day hoping to hear from me! Well, moving right along, I think it was a dozen years ago that I wrote an article about how the USSC should take Breyer up on his suggestion -- either that or go home and save the taxpayers a few million (https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/1IzxpHMqv9UKPPDE9p7H1Z5fclsJq9kK733I8dfl.pdf). SCOTUS chose the wrong remedy in Booker. It should have kept the guidelines mandatory and required proof BRD for facts that would take the sentence above the max. But (narrowly) it fumbled the ball. And as you correctly point out, Congress has snoozed through many chances to scoop it up off the turf.
I suspect that's because the unique moment of the 1980's, with Reagan as President and Meese as AG, has passed. And binding guidelines, while a big step forward for the rule of law, were never all that popular with the bench. If Congress a few years ago had reconstituted the USSC will Bill Pryor and his pals (shall we say), at least the Commission could have goosed Congress to get back to guidelines with teeth. But that moment also passed. So here we are with a different sort of Commission (but also, may God be praised) a very different Supreme Court. As a job seeker, that has had its elements of disappointment for me, but as a citizen, it's a cause for great good cheer.
I've had some wonderful chances in life and I may yet have more with, say, President DeSantis. Until then, rather than pestering the Commission with advice it only pretends to want, I am remanded to living on my lakefront in Northern Virginia and my getaway in Hawaii. Well phooey.
Life is tough, but the Commission and I all seem to be struggling through, each in our own way.
Posted by: Bill Otis | Jun 23, 2023 6:16:02 PM
