The U.S. Supreme Court has taken up the case of United States v. Hansen, No 22-179, for full briefing and argument. Here is the Question Presented, as phrased by the Solicitor General:
Whether the federal criminal prohibition against encouraging or inducing unlawful 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 on First Amendment overbreadth grounds.
The answer would seem to be a clear “no,” but the Ninth Circuit held to the contrary.
“Abetting” a crime is a crime in all or nearly all states. It is not within the protection of the First Amendment.
Another question here is the legitimacy of the “overbreadth doctrine” itself. Does the judicial branch really have the authority to refuse to obey a statute in a case where its application is clearly constitutional because the same statute might be unconstitutional as applied in other cases? The theory of judicial review as laid out in Marbury v. Madison would not seem to permit that.
Here is what Hansen did, from the Ninth Circuit opinion:
Between at least October 2012 and September 2016, Hansen operated an organization called Americans Helping America Chamber of Commerce (“AHA”). AHA ran a program that purported to help undocumented immigrants become U.S. citizens through adult adoption (the “Program”). Hansen falsely told victims that many immigrants had become U.S. citizens through the Program. However, Hansen admitted to federal agents that no one had achieved U.S. citizenship through the Program, and it is not possible to become a U.S. citizen through adult adoption. Counts 17 and 18 were based on Hansen twice encouraging or inducing victims to overstay their visas.
In Spring 2017, a jury found Hansen guilty of twelve counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing unlawful immigration for private financial gain. The trial lasted eleven days and thirty-seven witnesses testified; witnesses included victims, former employees, investigators, and Hansen (who testified twice). At least 471 victims participated in the Program and each paid between $550 and $10,000. An FBI analyst testified that Hansen and AHA had more than $1.8 million in revenue.
On November 9, 2017, Hansen moved to dismiss Counts 17 and 18 on constitutional grounds. He argued that § 1324(a)(1)(A)(iv) is facially overbroad, void for vagueness, and unconstitutional as applied to him. The district court denied his motion. The district court sentenced Hansen to 240 months for each of the mail and wire fraud counts, and 120 months for each of the encouraging unlawful immigration for private financial gain counts, all to be served concurrently.