A majority of the Supreme Court seemed unwilling on Monday to strike down a federal ban on encouraging immigrants to remain in the U.S. illegally, despite arguments that the law violates the First Amendment.
Most of the justices seemed to accept that the statute — which imposes up to five years in prison for encouraging or inducing an unlawful immigrant to remain in the U.S. — could be read to intrude on free-speech rights.
However, several members of the high court noted that the government has seldom used the law to prosecute people for mere comments or suggestions. The rarity of such prosecutions undercuts claims that the law is unconstitutionally overbroad and could prompt immigration lawyers and other activists to avoid counseling undocumented immigrants about their options, some justices said.
“There’s an absence of prosecution,” Justice Amy Coney Barrett said. “There’s also an absence of demonstrated chilling effect.”
But the court’s liberal justices said the concerns sounded far from hypothetical. Justice Sonia Sotomayor posited a potential prosecution of a child for encouraging a grandmother in the U.S. to stay while knowing she was not here legally.
“The grandmother tells her son she’s worried about the burden she’s putting on the family and the son says, ‘Abuelita, you are never a burden to us. If you want to live here and continue living here with us, your grandchildren would love having you.’ Can you prosecute this?”
“I think not,” Justice Department attorney Brian Fletcher said, defending the statute. “I think it’s very hard.”
“Stop qualifying with ‘think,’” Sotomayor interjected. “Because the minute you start qualifying with ‘think,’ then you’re rendering asunder the First Amendment.”
The case the justices heard Monday, arising from California man Helaman Hansen’s conviction in an adult-adoption immigration fraud scheme, is a difficult one for the Biden administration and arises at an awkward time for the White House.
The Justice Department’s defense of the law puts them at odds with immigrant-rights groups who say they fear prosecution under the statute.
The showdown also comes amid growing anger by immigrant-rights activists over several recent policy moves. The administration wants to make it harder for migrants to claim asylum at the border and Biden is weighing a return to a policy of large-scale detention of immigrant families who arrive at the border without permission to enter the U.S.
Fletcher did not address those political issues, but he did urge the justices to adopt a narrow reading of the statute and clarify that its seemingly broad language covers only speech that amounts to soliciting or aiding and abetting someone to remain in the country illegally.
However, the lawyer representing Hansen, Esha Bhandari, said Fletcher’s proposed interpretation is an attempt to “rewrite” the statute.
“That is Congress’ job,” she said, appealing to conservative justices who favor literal readings of legal texts.
Justice Ketanji Brown Jackson expressed a similar concern, noting that Congress removed language about aiding and abetting seven decades ago.
“I guess I’m worried about an active, conscious effort on Congress’ part to exclude certain words that I now hear you wanting us to read back into this statute,” Jackson said.
Rather than adopting the government’s technical interpretation of the statute, Bhandari said, the justices should uphold a lower court’s ruling that declared the statute unconstitutional.
Early in the argument, conservative members of the court like Justices Brett Kavanaugh and Neil Gorsuch seemed to question the law’s scope.
Kavanaugh said charitable groups that provide food, water and shelter to immigrants seemed to have “sincere” worries about being prosecuted under a broad reading of the law.
Gorsuch initially expressed concern about the Justice Department’s attempt to reinterpret the law’s language, but he later seemed even more troubled by the notion of allowing Hansen to use his criminal case to raise arguments about how the law could affect others.
“It is an extraordinary thing for this court to grant third-party standing, which is effectively what we’re being asked to do here,” Gorsuch said.
But Jackson responded that courts entertain such overbreadth arguments because it can be difficult to know who or how many people are limiting their activities because of fears of prosecution.
“Is it possible to really figure out how many people have been chilled?” she asked. “We don’t know how many other people would have engaged in that kind of speech and action if it weren’t for this law.”
Justice Samuel Alito pointed to one unusual aspect of the statute: It criminalizes encouraging someone to remain in the U.S. illegally, but staying in the country without permission is not usually a crime. It’s typically a civil violation dealt with in immigration court.
Fletcher said court precedents permit making it a crime to encourage someone to violate a law punishable only by a civil penalty. He argued Congress had good reason to do so because it was worried about people taking advantage of undocumented migrants.
However, Bhandari said the government runs afoul of the First Amendment anytime it seeks to impose more severe punishment for encouraging an act than for the underlying act itself.
She also noted that some immigrants who are currently in the U.S. illegally are pursuing pathways Congress has created for them to obtain legal status, so it would be illogical to punish those who encourage such individuals to remain.
Hansen’s case is the second time in the past few years that the Supreme Court has considered possible First Amendment problems with the federal law against encouraging or inducing immigrants to stay in the U.S. illegally.
In 2020, the justices heard arguments in another case from California where the 9th Circuit Court of Appeals ruled that the same law violated free-speech rights. However, the Supreme Court ultimately punted on the central issue, instead faulting the appeals court for raising the First Amendment question without it being raised by either the government or the defense.
The maximum penalty for violating the law can reach 10 years in prison if a defendant intended to benefit financially from an immigrant staying in the U.S. illegally.
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