Supreme Court cases with the potential to reshape American politics get the most media attention. But it’s the more routine decisions that must be relied upon to keep the Constitution’s key mechanisms, such as free speech and due process, in good working order.
Of course, the prisons are not overflowing with people who advocate amnesty or who urged a friend, relative or client to overstay a visa. The statute usually features as one of several criminal violations in the indictment of immigration fraudsters — such as the defendant in this case, Helaman Hansen, who was also convicted of 15 counts of fraud for selling immigrants a false path to citizenship in California.
But Mr. Hansen challenged the “encourage or induce” clause as overly broad, and therefore likely to deter the First Amendment protected speech of others. That argument prevailed at the U.S. Court of Appeals for the 9th Circuit, which found that the unconstitutional applications of the statute so outnumber the constitutional applications that it must be invalidated. (The court did not overturn Mr. Hansen’s fraud convictions.) The Biden administration appealed to the Supreme Court.
We have a window into the justices’ thinking ahead of next month’s oral argument because they heard an analogous case in 2020, then dismissed it on procedural grounds. Judging by the argument in that case, several justices are alarmed by some of the statute’s implications and keen to narrow its reach — though just how they might do so will be closely contested.
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End of carousel- D.C. Council reverses itself on school resource officers. Good.
- Virginia makes a mistake by pulling out of an election fraud detection group.
- Vietnam sentences another democracy activist.
- Biden has a new border plan.
The D.C. Council voted on Tuesday to stop pulling police officers out of schools, a big win for student safety. Parents and principals overwhelmingly support keeping school resource officers around because they help de-escalate violent situations. D.C. joins a growing number of jurisdictions, from Montgomery County, Md., to Denver, in reversing course after withdrawing officers from school grounds following George Floyd’s murder. Read our recent editorial on why D.C. needs SROs.
Gov. Glenn Youngkin (R) just withdrew Virginia from a data-sharing consortium, ERIC, that made the commonwealth’s elections more secure, following Republicans in seven other states in falling prey to disinformation peddled by election deniers. Former GOP governor Robert F. McDonnell made Virginia a founding member of ERIC in 2012, and until recently conservatives touted the group as a tool to combat voter fraud. D.C. and Maryland plan to remain. Read our recent editorial on ERIC.
In Vietnam, a one-party state, democracy activist Tran Van Bang was sentenced on Friday to eight years in prison and three years probation for writing 39 Facebook posts. The court claimed he had defamed the state in his writings, according to Radio Free Asia. In the past six years, at least 60 bloggers and activists have been sentenced to between 4 and 15 years in prison under the law, Human Rights Watch found. Read more of the Editorial Board’s coverage on autocracy and Vietnam.
The Department of Homeland Security has provided details of a plan to prevent a migrant surge along the southern border. The administration would presumptively deny asylum to migrants who failed to seek it in a third country en route — unless they face “an extreme and imminent threat” of rape, kidnapping, torture or murder. Critics allege that this is akin to an illegal Trump-era policy. In fact, President Biden is acting lawfully in response to what was fast becoming an unmanageable flow at the border. Read our most recent editorial on the U.S. asylum system.
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The simplest option is to declare the law unenforceable because of its intrusion on the First Amendment. The Biden administration claims this would undermine its ability to control immigration. But other provisions of immigration law already prohibit bringing unauthorized immigrants into the United States, concealing them and aiding or abetting those offenses. Ninth Circuit Judge Ronald M. Gould noted the government’s “failure to identify any case” in which the clause was “the only available statutory provision to punish deplorable conduct.”
Immigration enforcement does not remotely hinge on this vague statute. As the Supreme Court has said, however, invalidating a statute in its entirety is “strong medicine.” Several of the more conservative justices, especially, might be inclined to read the statute narrowly to try to avoid taking such a forceful step.
They could instead interpret the law as a ban on “solicitation” of crime — a category of speech that lacks First Amendment protection but that requires closer alignment between the speaker and the potential lawbreaker than mere encouragement. That would keep the statute available to prosecutors while indicating that it does not reach so far as to cover, for example, an immigration attorney’s legal advice to her client, or a church volunteer’s role distributing food in a heavily immigrant community.
But is such a constitutionally flawed clause really worth saving? Though entering the country without authorization is a crime, remaining in the country is generally only a civil offense. A judicially rewritten solicitation statute would mostly ban conduct that other parts of the law already ban. And if the statute remains in force, an ordinary person reading it — as opposed to the justices’ translation of it — could still reasonably be uncertain as to whether it criminalizes innocent speech.
That gets at the broader stakes of this case. A Heritage Foundation study estimated that Congress had created 5,199 federal crimes by 2019 — a 36 percent increase since 1994. Many of those crimes are vague and duplicative. The clause at issue in this case certainly fits the bill. The result is the consolidation of prosecutorial power and the erosion of civil liberties.
The immediate effects of Hansen on criminal prosecutions will be marginal, however the court decides. But constitutional erosion has a way of accumulating over time. The Supreme Court’s repudiation of a statute that unnecessarily compromises the First Amendment would help maintain the country’s constitutional health.