The Washington PostDemocracy Dies in Darkness

Opinion A Supreme Court case pits immigration hawks against free speech

The Supreme Court in Washington. (Elizabeth Frantz/Reuters)
4 min

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.

In United States v. Hansen, the justices have a chance to do some important constitutional maintenance. At issue is a statute that makes anyone who “encourages or induces” an unauthorized immigrant to enter or remain in the United States guilty of a federal crime punishable by up to five years in prison.

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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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.

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