Under the Trump administration, the Supreme Court has been the place where immigrants’ rights go to die. Time and again, the conservative majority has upheld unconstitutional restrictions on immigration and allowed the government to implement legally dubious attacks on noncitizens in the United States. On Tuesday morning, the court continued this trend in a 5–4 decision in Hernández v. Mesa throwing out a lawsuit against a border patrol agent who shot a teenager across the Southern border, relieving the increasingly violent Customs and Border Protection from accountability. As Justice Ruth Bader Ginsburg noted in dissent, the killing was “not an isolated incident” but part of a broader pattern of abuse that CBP refuses to address.
After the court announced its opinion in Hernández, it heard arguments in another immigration-related case: 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.
Evelyn Sineneng-Smith, the defendant in the case, ran a consulting firm that helped undocumented immigrants apply for green cards under a “labor certification” program. But she regularly promoted the program to people who were ineligible for it, then took their money and filed futile applications. In 2010, federal prosecutors charged her with fraud, for obvious reasons. But they also charged her under a law that allows the felony prosecution of anyone who knowingly or recklessly “encourages or induces” a noncitizen “to come to, enter, or reside in the United States” illegally. After a jury found her guilty, Sineneng-Smith appealed her conviction under this statute, arguing that it is overbroad in violation of the First Amendment.
No justice except Samuel Alito seemed to believe that the government can really punish anybody who “encourages” undocumented immigration. If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense. Lawyers who represent undocumented immigrants could be prosecuted; so could family members, charities, and medical providers who urge these immigrants to remain in the country. The Department of Justice insists that nobody should worry about those possiblities, because it can be trusted to wield the law responsibly.
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?”
Feigin claimed that the law covers only criminal conduct or “solicitation” of a crime, not mere advocacy or expression. But the justices were skeptical. Roberts joked that the court would “have to get that [interpretation] passed by the Senate and House and then signed by the president” because it’s basically a new law. Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”
To salvage the law, Feigin fell back on the classic trust us argument: Sure, the statute might cover constitutionally protected speech, but the court can trust federal prosecutors to punish only the real bad guys. “The statute has never been used,” Feigin said, to prosecute pure expression with no direct connection to a crime. Sotomayor jumped in. “But it has been used,” she said, citing an Amnesty International brief that pointed out that the Department of Homeland Security maintains a watchlist of journalists and activists at the Southern border. These individuals “were being watched because they potentially violated this encouragement provision and inducement provision,” Sotomayor said. Border officials then harassed and detained people on the list. And DHS used this law to justify its actions. How, Sotomayor wondered, could Feigin possibly assert that it “has no chilling effect”?
Feigin countered that DHS “was focused on investigating instances of violence against border patrol agents and suspicions that people were being counseled to lie to immigration officials.” In fact, all available evidence indicates that DHS sought to surveil individuals, including journalists and lawyers, connected to migrant caravans. (This is not the first or even second time Donald Trump’s Justice Department has misled the Supreme Court.) But Sotomayor had pretty much dropped the mic. Sure, the government doesn’t often trot out this statute to put people behind bars. But its existence gives DHS a pretext to monitor and penalize people engaged in speech that the government doesn’t like. That fact may be reason enough to strike it down.
There’s another problem with the statute, as Justice Neil Gorsuch pointed out: It’s a “basic First Amendment value” that courts “don’t allow punishment for speech greater than the underlying conduct itself.” For instance, if you egg on a bank robbery, you can’t be sent to prison for longer than the thieves who robbed the bank. But simply residing in the United States without authorization isn’t a felony or even a misdemeanor; it’s a civil offense. How, Gorsuch asked, can the government “criminally punish the speech” when the conduct itself “would be civilly punished?”
Feigin offered a weak response—basically, the government promises to punish only speech intertwined with a serious criminal offense—but that ship had sailed. By the time Mark Fleming, who represented Sineneng-Smith, approached the lectern, only Alito would defend the law. Alito suggested that it might be constitutional because Congress can censor speech intended to incite “imminent lawless action” and likely to succeed. But the rest of the justices had moved on, debating whether they could save the statute by narrowing it. Justices Elena Kagan and Brett Kavanaugh nudged Fleming toward a compromise that would pare back the law to cover really bad stuff and nothing else.
If the court defangs the law, that’ll be a qualified victory for immigration advocates. In the end, though, a majority of justices seem more likely to scrap it and tell Congress to try again. That outcome would be a win for free speech and, in a sense, the court itself. For three years now, the conservative majority has rubber-stamped Trump’s immigration crackdown, to the point that Sotomayor recently accused her colleagues of favoring the Trump administration over every other litigant. And in Hernández, a bare majority gave CBP a free pass to brutalize noncitizens across the border. A ruling for the First Amendment in Sineneng-Smith would prove that, at a bare minimum, the government can’t gag those who’d like to help immigrants in need.