The Supreme Court on Friday upheld the federal crime of encouraging illegal immigration as constitutional in a ruling that also clarifies the law’s scope.
In a 7-2 vote, the justices sided with the Justice Department in reversing a lower court’s decision that found the crime unconstitutional on First Amendment grounds for sweeping too far into protected speech.
Writing for the majority, Justice Amy Coney Barrett clarified the law only permits the government to prosecute actual facilitation of illegal immigration, not benign statements, so it did not pose free speech concerns.
“Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts,” Barrett wrote.
Barrett’s opinion was joined by all of her fellow conservative justices and liberal justice Elena Kagan. Liberal justices Ketanji Brown Jackson and Sonia Sotomayor dissented.
The dispute involved the case of Helaman Hansen, who was convicted over a scheme of falsely promising at least 471 noncitizens a path to citizenship through adult adoption, receiving $1.8 million.
On appeal, Hansen successfully tossed his two counts of encouraging illegal immigration for private financial gain by challenging the crime as being unconstitutionally overly broad by sweeping too far into protected speech.
In most contexts, defendants must challenge how the law is applied to them specifically. But in free speech cases, such as Hansen’s, defendants have the ability to challenge laws on their face, even if their own speech at issue was unprotected, out of concern that others’ speech may still be unconstitutionally chilled.
“It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices,” Jackson wrote in the dissent.
“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,” Jackson added.
Conservative Justice Clarence Thomas, who voted with the majority, also wrote separately to stress his opposition to the doctrine, as he has done previously.
“This case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law,” Thomas wrote. “In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.”
They high court sent Hansen’s specific criminal case back to a lower court for further proceedings; Hansen was also convicted on 15 fraud charges that weren’t in question.
The case marks the second time that the court weighed the constitutionality of the crime of encouraging illegal immigration. Three years ago, the court disposed of a near-identical challenge on other grounds that left the First Amendment question untouched.
Updated at 10:29 a.m. EDT.