U.S. Supreme court

SCOTUS upholds law that bans 'encouraging or inducing' illegal immigration

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Immigrants behind a wall painted with the American flag and topped with barbed wire

In United States v. Hansen, Justice Amy Coney Barrett said the words “encourage” and “induce” have a “long-standing and pervasive” use in criminal statutes to describe criminal solicitation and facilitation. Image from Shutterstock.

A federal law that bans “encouraging or inducing” illegal immigration does not violate the First Amendment when it is properly interpreted, the U.S. Supreme Court ruled in a 7-2 decision Friday.

Justice Amy Coney Barrett wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh.

The Supreme Court ruled against Helaman Hansen, who was convicted under the law for promoting “adult adoption” as a way for noncitizens to gain U.S. citizenship. He had “raked in nearly $2 million” by luring more than 450 noncitizens into his phony program, Barrett said.

The 9th U.S. Circuit Court of Appeals at San Francisco had ruled that the law violated the First Amendment because it criminalized immigration advocacy and other protected speech.

The 9th Circuit’s conclusion was error, Barrett said.

“Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts,” Barrett said. The law doesn’t prohibit “a substantial amount of protected speech” as the 9th Circuit found, and its wording is not justification for overturning its “plainly legitimate sweep.”

The law prohibits “encouraging or inducing” a noncitizen “to come to, enter or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry or residence is or will be in violation of law.”

Barrett said the words “encourage” and “induce” have a “long-standing and pervasive” use in criminal statutes to describe criminal solicitation and facilitation. Criminal solicitation is the intentional encouragement of an unlawful act. Facilitation, also described as aiding and abetting, means providing assistance to a wrongdoer with the intent to further the commission of an offense.

In the present case, the words are used in their “specialized, criminal law sense,” Barrett said. That use includes a requirement that the defendant intend for a particular act to be carried out, she said.

Hansen had pressed the Supreme Court to adopt a more expansive meaning for “encourage” and “induce.” Barrett rejected the request.

“When legislation and the Constitution brush up against each other, our task is to seek harmony, not to manufacture conflict,” she wrote.

Barrett left open the possibility that the law can be challenged as applied to particular defendants.

“Hansen asks us to throw out too much of the good based on a speculative shot at the bad,” Barrett wrote. “This is not the stuff of overbreadth—as-applied challenges can take it from here.”

Justice Ketanji Brown Jackson dissented in an opinion joined by Justice Sonia Sotomayor.

“It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’ choices,” Jackson wrote. “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.”

The case is United States v. Hansen.

Hat tip to SCOTUSblog.

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