Wednesday, February 26, 2020

Justices Seem Inclined to Find Immigration Criminal Statute to Violate the First Amendment



Mark Joseph Stern for Slate recaps the oral arguments in the Supreme Court yesterday in United States v. Sineneng-Smith.  Here is the transcript.  The question presented in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Stern's conclusion in a nutshell based on the arguments:

"United States v. Sineneng-Smith, which involves a federal law that bars people from encouraging noncitizens to enter or stay in the U.S. illegally. Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy." 

Stern recounts that:

"Chief Justice John Roberts’ first question of the day did not bode well for the government: He asked Deputy Solicitor General Eric Feigin to concede `that there are situations in which this would be unconstitutional as applied.'

`Let’s suppose a grandmother whose granddaughter is in the United States illegally tells the granddaughter, ‘I hope you will stay, I will miss you, things will not get better if you go back, so I encourage you to stay,’ ” Roberts said. The First Amendment plainly protects that speech. Yet it “would be illegal under the statute, right?”

Read the story above for more details.

Nina Totenberg summarizes the arguments for NPR.

UPDATE (Feb. 26, 11;45 PST):  Jack Chin recaps the arguments for SCOTUSBlog.  His bottom line:

"A majority of the justices seemed to be concerned that the statute as written is quite broad. This would imply sympathy for the analysis of the 9th Circuit. But a number of justices may also be reluctant to strike down the statute entirely if there is a reasonably available alternative interpretation. What is not clear is whether a majority of the justices think that the task they face is one of permissible narrow construction or impermissible rewriting."


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