Supreme Court Upholds Ban on Encouraging Illegal Immigration

In United States v. Hansen, 599 U.S. ____ (2023), the U.S. Supreme Court upheld a federal law that criminalizes “encouraging or inducing” an immigrant to come or remain in the United States unlawfully. According to the Court, the law does not run afoul of the First Amendment.

Facts of the Case

Helaman Hansen promised hundreds of noncitizens a path to U. S. citizenship through “adult adoption.” But that was a scam. Though there is no path to citizenship through “adult adoption,” Hansen earned nearly $2 million from his scheme.

Hansen was charged with violating 8 U.S.C. §1324(a)(1)(A)(iv), which forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law.” Hansen was convicted and moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. While the District Court rejected Hansen’s argument, the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad.

Supreme Court’s Decision

The Supreme Court reversed by a vote of 7-2, holding that because §1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad. Justice Amy Coney Barrett wrote on behalf of the majority.

Under the overbreadth doctrine, if the challenger demonstrates that the statute “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep,” then society’s interest in free expression outweighs its interest in the statute’s lawful applications, and a court will hold the law facially invalid. In this case, Hansen argued that clause (iv) punishes so much protected speech that it can’t be applied to anyone, including him.

In reaching its decision, the Court acknowledged that an expansive reading of the statute would render it unconstitutional. However, it went on to adopt a very narrow approach concluding that Congress used “encourage” and “induce” as terms of art referring to criminal solicitation and facilitation (thus capturing only a narrow band of speech). As Justice Barrett wrote:

We hold that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation. In truth, the clash between definitions is not much of a contest. “Encourage” and “induce” have well-established legal meanings—and when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.”

The Court further found that the context and the statutory text both supported its interpretation. Conversely, it found that the Ninth Circuit “stacked the deck in favor of ordinary meaning, but it should have given specialized meaning a fair shake.” As Justice Barrett explained, “When words have several plausible definitions, context differentiates among them. Here, the context of these words indicates that Congress used them as terms of art.”

Justice Ketanji Brown Jackson authored a dissent, which was joined by Justice Sonia Sotomayor. Justice Jackson argued that the majority abandoned traditional tools of statutory construction to reach its result.

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