USCA9 Gets Quill-Lashing From Unanimous SCOTUS

The U.S. Supreme Court severely admonished the Court of Appeals for the Ninth Circuit today for reaching out to recast a case to present issues not raised by the parties. The opinion was unanimous, written by Justice Ginsburg. The Ninth Circuit panel, at the time of the recasting, consisted of Judges Reinhardt, Tashima, and Berzon.

In United States v. Sineneng-Smith, No. 19-67, the high court disposed of the case saying,  “we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.” In judicial-speak, that is a stern rebuke.

The Case

The defendant, Evelyn Sineneng-Smith, is not going to win any applause from either side of the immigration debate aisle. As an immigration consultant, she took $6,800 from each of her clients, mostly Filipino home health care workers, to assist them with applications to adjust status to permanent residency under a particular program, knowing full well that they did not qualify but not telling them that. “For her services in this regard, she collected more than $3.3 million from her unwitting clients.”

Federal prosecutors understandably wanted to throw the book at her. She pleaded guilty to filing false tax returns and was convicted at trial of mail fraud and violating 8 U.S.C. §1324. That section provides, in part:

(a) Criminal penalties (1) (A) Any person who … (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ….

If committed for financial gain, this crime is punishable by up to 10 years in prison. See §1324(a)(1)(B)(i).

Sineneng-Smith was sentenced to 18 months on each of two counts of violating §1324, concurrent, and supervised release on the other counts. If I had been the judge, I would have thrown the book at her on the fraud charges.

[Memo to Congress: It should be a federal crime for an immigration consultant to defraud her clients without having to resort to the mail fiction. Federal control over immigration justifies federal jurisdiction over these crimes as “necessary and proper” whether the communications go by mail, courier, or carrier pigeon. People who defraud vulnerable and usually modestly paid immigrants with hefty fees for worthless services deserve substantial prison time.]

The Ninth Circuit affirmed the mail fraud convictions in an unpublished memorandum.

The Defendant’s Argument

On the §1324 charge, Sineneng-Smith’s lawyers argued that her conduct did not actually violate that statute. That is actually a pretty good argument. The clients were already in the United States. They did not intend to leave. They sought assistance in staying. Does telling them they qualified for adjustment while knowing they did not amount to encouraging illegal residence? That is a stretch. It is outrageous fraud against the client, but that is the other charge, not this one.

A related argument by the defense is that if the statute does cover that conduct then it is unconstitutionally vague as applied to the particular conduct. Also not a bad argument, given how much of stretch is needed. “She further asserted that she has a right safeguarded to her by the Petition and Free Speech Clauses of the First Amendment to file applications on her clients’ behalf.” Speaking of stretching.

Importantly for this case, though, the defense did not argue that the statute was completely void so that a person whose conduct was within the core of the prohibition would get off. They did not argue that in the District Court or in their initial round of briefing on appeal. “Nowhere did she so much as hint that the statute is infirm, not because her own conduct is protected, but because it trenches on the First Amendment sheltered expression of others,” Justice Ginsburg’s opinion for the Court notes.

The Recasting

In the Ninth Circuit, the case was assigned to a panel of the most activist judges of a generally activist court: the notorious Judge Stephen Reinhardt, along with Judges Tashima and Berzon. The case was initially briefed and argued on the same theories presented to the District Court. From today’s opinion:

With the appeal poised for decision based upon the parties’ presentations, the appeals panel intervened. It ordered further briefing, … but not from the parties. Instead, it named three organizations—“the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild”—and invited them to file amicus briefs on three issues:

“1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?

“2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?

“3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?”

After this briefing and argument, Judge Reinhardt died. Judge Andrew Hurwitz was drawn to replace him. The court proceeded to strike down the statute on its face as overbroad, wiping it off the books completely, not just as applied in this case.

The Supreme Court Decision

There are times when courts, including the Supreme Court and the Ninth Circuit, appoint an amicus curiae to brief an issue that a party is not arguing. I have filled that niche myself. Most typically, these involve (1) protecting pro se litigants, (2) issues the court is obligated to consider whether parties raise them or not, such as jurisdiction, or (3) defending the decision of the lower court if a party no longer supports or never supported the basis of the decision. An addendum to the opinion lists a number of examples of proper amicus appointments.

This is different. The Supreme Court characterized this action as a “radical transformation of this case [that] goes well beyond the pale.” Quoting Judge Arnold of the Eighth Circuit, courts “ ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.’ ”

The essence of judicial activism is looking at law as merely politics by other means and cases as merely vehicles for giving the people what is good for them (in the opinion of the judge) whether they like it or not. Seeing this anti-sally-forth language in a unanimous opinion of the Supreme Court is encouraging indeed.

Justice Thomas’s Concurrence

Justice Thomas wrote a concurring opinion regarding the merits of the case. He has become increasing doubtful about the “overbreadth doctrine.” In most cases, a defendant must challenge the constitutionality of a statute as applied to his case, and how it may apply to others is largely irrelevant. However, since the Warren Court years, the Supreme Court has applied a different rule for First Amendment cases, claiming the power to strike down a statute in its entirety: “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” United States v. Stevens, 559 U. S. 460, 473 (2010).

Justice Thomas notes that “this Court has not attempted to ground its void-for-overbreadth rule in the text or history of the First Amendment.” He notes the inconsistency between the overbreadth doctrine and rules of facial challenges and standing.

But it goes even deeper than that, in my view. Nothing in the Constitution empowers a court to declare a duly enacted statute to be void. The theory of judicial review is that courts must decide cases according to the law, and there is a hierarchy of laws. Where laws at different levels point to different results, the court must decide in accordance with the higher law. Federal law prevails over state law in deciding a case, the Constitution says in black and white. (Article VI, 2d para.) Similarly, the Supreme Court said in Marbury v. Madison, the Constitution prevails over an Act of Congress. But that’s it. The judicial power extends no further.

We will see whether Justice Thomas’s view on overbreadth attracts more support or remains an individual view. Stay tuned.