Supreme Court Narrows and Upholds Illegal Immigration Encouragement Law

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The U.S. Supreme Court today decided United States v. Hansen, No. 22-179. The first paragraph of Justice Barrett’s opinion for the Court summarizes the decision well:

A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U. S. C. §1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292 (2008). We reverse.

Interpreting laws broadly and then striking them down as overbroad is an old ruse of judicial activists. This tactic creates the odd situation of the defense urging a broad interpretation of a criminal law and the prosecution urging a narrow one, the reverse of the usual situation.

It bears emphasis that even if the Government’s reading were not the best one, the interpretation is at least “ ‘fairly possible’ ”—so the canon of constitutional avoidance would still counsel us to adopt it. Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12). This canon is normally a valuable ally for criminal defendants, who raise the prospect of unconstitutional applications to urge a narrower construction. But Hansen presses the clause toward the most expansive reading possible, effectively asking us to apply a canon of “ ‘constitutional collision.’ ” 40 F. 4th, at 1059 (opinion of Bumatay, J.). This tactic is understandable in light of the odd incentives created by the overbreadth doctrine, but it is also wrong. When legislation and the Constitution brush up against each other, our task is to seek harmony, not to manufacture conflict.3
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3. The canon of constitutional avoidance is a problem for the dissent. Attempting to overcome it, Justice Jackson suggests that the canon has less force in the context of an overbreadth challenge. Post, at 17. Our cases offer no support for that proposition. In this context, as in others, ordinary principles of interpretation apply.

Indeed, I would think that avoidance has more force in an overbreadth challenge, given that the overbreadth doctrine is itself a dubiously legitimate use of awesome power of judicial review.

Constitutional avoidance can itself be overdone, particularly where it is used to avoid a constitutional question rather than to save a statute that would actually be unconstitutional under the broader interpretation. But that is a subject for another day.