26 Jun SCOTUS Upholds Constitutionality of 8 USC 1324
On June 23rd, in United States v. Hansen, the Supreme Court interpreted the terms “encourages” and “induces” in 8 U.S.C. §1324(a)(1)(A)(iv) narrowly and upheld the statute’s constitutionality. While the decision was technically a loss for the position advocated by IMLA, by narrowly interpreting the scope of the statute, many (though not all) of the concerns that local governments had regarding the case are likely mitigated.
At issue in this case was an overbreadth challenge to 8 U.S.C. §1324(a)(1)(A)(iv), which prohibits “encourage[ing] or induc[ing]” illegal immigration. The facts of this case were largely irrelevant to local governments, but because this same statute has been used by ICE to threaten local governments and local government officials with prosecution, the constitutionality of the statute has important First Amendment implications for local governments and their officials. Additionally, in the past, local governments were also forced to certify compliance with the statute (among others) in their Byrne Jag grant applications or forego millions of dollars, which resulted in significant litigation between local governments and the federal government. The concern with this case for local governments was that a broad reading of the statute could implicate health and welfare programs that local governments offer their residents regardless of citizenship status and chill local government speech regarding immigration.
In a 7-2 ruling authored by Justice Barrett, the Supreme Court concluded that the statute “reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law.” The overbreadth challenge therefore failed as it did not “prohibi[t] a substantial amount of protected speech” relative to its “plainly legitimate sweep.”
Hansen argued that the statute punishes so much protected speech, that it must be struck down as unconstitutional, even though he conceded that as applied to him and his behavior, it would not be unconstitutional. As the majority explains, “the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied. We have justified this doctrine on the ground that it provides breathing room for free expression.” Thus, the overbreadth doctrine is a safeguard against chilling too much constitutionally protected speech, even though it may allow an undeserving litigant to escape punishment. However, the Court explained “to justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.”
In order to determine how much speech the law was sweeping in for the overbreadth challenge, the Court first had to determine how to interpret the key statutory terms. Specifically, whether “encourage” and “induce” should be interpreted in their criminal law context to require a mens rea element or whether they should be interpreted in their ordinary usage. Hansen argued in this case that the terms should be interpreted using their ordinary meaning, which would mean the statute would criminalize far more speech, which would have likely made it overbroad and therefore unconstitutional.
The Court rejected Hansen’s interpretation, concluding that the terms “encourage” or “induce” as used in the statute should be interpreted in the criminal code context, which requires intent in order to be prosecuted. The Court looked at the statutory history, context, and the terms’ criminal-law usage, which dates back hundreds or years, to all point to the fact that the terms should be used in their criminal law context. Because the Court interpreted the terms “encourage” and “induce” to refer to the crimes of solicitation and facilitation and there is overwhelming evidence of the United States prosecuting people for those crimes (e.g., smuggling noncitizens into the country and issuing fraudulent Social Security numbers) under the statute and not prosecuting people for protected First Amendment speech, the Court rejected the overbreadth challenge.
The Court grappled with some of the hypotheticals that local governments were concerned with including a “government official who instructs ‘undocumented members of the community to shelter in place during a natural disaster’” and concluded that none of the parade of horribles offered by Hansen were “filtered through the elements of solicitation and facilitation” including most importantly, the mens rea / intention requirement. Because the Court found that the statutory terms had a narrower meaning, the Court concluded that it would not reach the speech Hansen claimed it did. Instead, it would only reach speech that is “integral to unlawful conduct,” which is unprotected.
Because the Court could not grapple with all the hypotheticals posited by Hansen and the amici in this case, the Court did note that should a prosecution ever occur in a grayer area, litigants are free to bring up an as applied challenge to the statute and argue that the statute violates the First Amendment as applied to the particular litigant.
IMLA and NLC joined an amicus brief filed by 30 other cities and counties in this case, which was drafted by Molly Alarcon and Jaime Huling Delaye with the San Francisco City Attorney’s office. While this case presented important issues for local governments, particularly in light of the threatened prosecution with this statute in the past, the Court’s narrow interpretation of the statute should be met with some comfort. Without criminal mens rea, it seems unlikely that a local government could be successfully prosecuted under the statute for refusing to expend local resources to assist federal immigration enforcement efforts, for example. Similarly, another concern local governments had was whether a broad interpretation of the statute might prevent a locality from serving food at a foodbank to anyone, regardless of their immigration status. But this too, would seem to fall short of the criminal mens rea requirement that the Court outlined in this case.
To read the Court’s decision, click here.
To read the amicus brief filed by IMLA and NLC, click here.