United States v. Hansen
599 U. S. ___ (2023) (2023)
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Rule of Law:
8 U.S.C. §1324(a)(1)(A)(iv), which prohibits encouraging or inducing illegal immigration, is not unconstitutionally overbroad under the First Amendment because it forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law.
Facts:
- In 2014, Mana Nailati, a citizen of Fiji, heard about Helaman Hansen's "adult adoption" program, which promised a path to U.S. citizenship.
- Nailati flew to California, where Hansen's wife told him adult adoption was the "quickest and easiest way to get citizenship" and that he could inherit U.S. citizenship from his new parent.
- Nailati paid Hansen's organization $4,500 to participate in the program.
- After months passed with no progress and his visa neared expiration, Hansen advised Nailati to stay, claiming that once in the program, immigration authorities "cannot touch you."
- Nailati believed Hansen's advice and unlawfully remained in the country.
- Hansen peddled his fraudulent scheme to over 450 noncitizens, including a couple who paid $9,000 and another noncitizen who paid from 21 years of savings.
- Through his program, Hansen earned nearly $2 million, despite there being no legitimate path to U.S. citizenship through "adult adoption."
Procedural Posture:
- Helaman Hansen was charged by the United States with violations of 8 U.S.C. §1324(a)(1)(A)(iv) and other crimes in a federal District Court.
- A jury convicted Hansen, including under clause (iv), and found that he acted "for the purpose of private financial gain."
- Hansen moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds in the District Court, but the court rejected his argument and sentenced him.
- Hansen appealed his conviction to the United States Court of Appeals for the Ninth Circuit.
- While Hansen's appeal was pending, the Ninth Circuit, in a separate case (United States v. Sineneng-Smith), held that clause (iv) was unconstitutionally overbroad.
- The Supreme Court vacated the Ninth Circuit's Sineneng-Smith judgment on an abuse-of-discretion ground, but Hansen's appeal provided the Ninth Circuit a second opportunity to address the overbreadth question.
- The Ninth Circuit then reprised its original holding, concluding that clause (iv) was facially unconstitutionally overbroad and reversed Hansen's conviction on that count.
- The Ninth Circuit denied the Government's petition for rehearing en banc.
- The Supreme Court granted certiorari to review the Ninth Circuit's decision.
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Issue:
Does 8 U.S.C. §1324(a)(1)(A)(iv), which criminalizes encouraging or inducing an alien to unlawfully enter or reside in the United States, violate the First Amendment by being unconstitutionally overbroad?
Opinions:
Majority - Justice Barrett
No, 8 U.S.C. §1324(a)(1)(A)(iv) is not unconstitutionally overbroad under the First Amendment. The Court holds that the terms "encourage" and "induce" in clause (iv) are used in their specialized, criminal-law sense, meaning they incorporate common-law liability for solicitation and facilitation. These common-law concepts require an intent to bring about a particular unlawful act. This interpretation is supported by the historical and pervasive use of these terms in criminal law contexts, as well as the statutory history of the provision. Despite Congress's removal of words like "assist" and "solicit" and the explicit "willfully or knowingly" mens rea requirement in previous versions, the Court asserts that Congress merely streamlined the language, and the traditional intent associated with solicitation and facilitation remains implicitly part of the terms "encourage" and "induce." The Court notes that the canon of constitutional avoidance counsels adopting this narrower, "fairly possible" reading. Under this interpretation, the statute's "plainly legitimate sweep" includes extensive nonexpressive conduct (e.g., smuggling) and speech integral to unlawful conduct, such as Hansen's fraud. Since Hansen failed to identify a substantial number of realistic unconstitutional applications relative to this broad legitimate scope, the statute does not prohibit a substantial amount of protected speech and is not overbroad.
Concurring - Justice Thomas
Yes, I join the Court’s opinion, agreeing that Hansen’s fraudulent scheme is not protected by the First Amendment and that the statute is not unconstitutionally overbroad as interpreted. I write separately to emphasize my long-held view that the facial overbreadth doctrine itself lacks any basis in the text or history of the First Amendment, distorts the judicial role, and carries the Judiciary far afield from its constitutional duties. The doctrine allows federal courts to invalidate laws in the abstract by speculating about hypothetical unconstitutional applications, which resembles the rejected New York Council of Revision. This approach forces judges to make society-wide policy determinations, an activity inconsistent with the Founders' vision of the judicial function, which is limited to resolving concrete cases and controversies.
Dissenting - Justice Jackson
Yes, the statute is unconstitutionally overbroad. The majority departs from ordinary principles of statutory interpretation by rewriting the provision's text to include elements (like specific intent for solicitation/facilitation) that Congress once adopted but later explicitly removed. The dissent argues that in ordinary parlance, "encourage" and "induce" encompass a broad range of speech (e.g., abstract advocacy, general advice) that would be protected by the First Amendment. Congress's repeated amendments, including the deletion of "solicit," "assist," and the "willfully or knowingly" mens rea requirement, demonstrate an intent to expand, not narrow, the law's reach. Furthermore, the statute's criminalization of encouraging or inducing civil immigration violations is inconsistent with traditional criminal solicitation and facilitation principles. The dissent criticizes the majority's heavy reliance on the canon of constitutional avoidance in the overbreadth context, arguing that it undermines Congress's incentive to draft narrowly tailored laws and perpetuates a chilling effect on constitutionally protected speech by leaving broad, vague language on the books. The absence of past prosecutions for protected speech does not negate the significant chilling effect, especially given instances of government surveillance and inquiries related to the statute.
Analysis:
This case is significant for its interpretation of statutory language in a way that avoids constitutional conflict and for reinforcing the high bar for facial overbreadth challenges. By defining "encourage or induce" as terms of art signifying purposeful solicitation or facilitation, the Supreme Court provides a template for interpreting potentially broad statutory language in a narrow manner. This approach allows the government to target harmful conduct without unduly infringing on First Amendment rights. Future cases involving statutes with broad verbs that could implicate speech will likely look to this decision for guidance on whether those terms should be given their ordinary or specialized legal meanings. It also reaffirms that for an overbreadth challenge to succeed, the proportion of unconstitutional applications must be substantial and real, not merely hypothetical, relative to the statute's legitimate scope.
