UNITED STATES v. HANSEN

[د.شيماء عطاالله]

(Slip Opinion) OCTOBER TERM, 2022 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. HANSEN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 22–179. Argued March 27, 2023—Decided June 23, 2023
Respondent Helaman Hansen promised hundreds of noncitizens a path
to U. S. citizenship through “adult adoption.” But that was a scam.
Though there is no path to citizenship through “adult adoption,” Hansen earned nearly $2 million from his scheme. The United States
charged Hansen with, inter alia, violating 8 U. S. C. §1324(a)(1)(A)(iv),
which forbids “encourag[ing] or induc[ing] an alien to come to, enter,
or reside in the United States, knowing or in reckless disregard of the
fact that such [activity] is or will be in violation of law.” Hansen was
convicted and moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansen’s argument, but the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad.
Held: Because §1324(a)(1)(A)(iv) forbids only the purposeful solicitation
and facilitation of specific acts known to violate federal law, the clause
is not unconstitutionally overbroad. Pp. 4–20.
(a) Hansen’s First Amendment overbreadth challenge rests on the
claim that clause (iv) punishes so much protected speech that it cannot
be applied to anyone, including him. A court will hold a statute facially
invalid under the overbreadth doctrine if the law “prohibits a substantial amount of protected speech” relative to its “plainly legitimate
sweep.” United States v. Williams, 553 U. S. 285, 292. In such a circumstance, society’s interest in free expression outweighs its interest
in the statute’s lawful applications. Otherwise, courts must handle
unconstitutional applications as they usually do—case-by-case. Pp. 4–
5.
(b) The issue here is whether Congress used “encourage” and “induce” in clause (iv) as terms of art referring to criminal solicitation and
facilitation (thus capturing only a narrow band of speech) or instead
2 UNITED STATES v. HANSEN
Syllabus
as those terms are used in ordinary conversation (thus encompassing
a broader swath). Pp. 5–9.
(1) Criminal solicitation is the intentional encouragement of an
unlawful act, and facilitation—i.e., aiding and abetting—is the provision of assistance to a wrongdoer with the intent to further an offense’s
commission. Neither requires lending physical aid; for both, words
may be enough. And both require an intent to bring about a particular
unlawful act. The terms “encourage” and “induce,” found in clause (iv),
are among the “most common” verbs used to denote solicitation and
facilitation. 2 W. LaFave, Substantive Criminal Law §13.2(a). Their
specialized usage is displayed in the federal criminal code as well as
the criminal laws of every State. If the challenged statute uses those
terms as they are typically understood in the criminal law, an overbreadth challenge would be hard to sustain. Pp. 6–8.
(2) Hansen, like the Ninth Circuit, insists that clause (iv) uses “encourages” and “induces” in their ordinary rather than specialized
sense. In ordinary parlance, “induce” means “[to] lead on; to influence;
to prevail on; to move by persuasion or influence,” Webster’s New International Dictionary 1269, and “encourage” means to “inspire with
courage, spirit, or hope,” Webster’s Third New International Dictionary 747. If clause (iv) conveys these ordinary meanings, it arguably
reaches abstract advocacy or general encouragement, and its applications to protected speech might render it vulnerable to an overbreadth
challenge. P. 9.
(c) The Court holds that clause (iv) uses “encourages or induces” in
its specialized, criminal-law sense—that is, as incorporating commonlaw liability for solicitation and facilitation. Pp. 9–13.
(1) Context indicates that Congress used those words as terms of
art. “Encourage” and “induce” have well-established legal meanings—
and when Congress “borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each borrowed word.” Morissette v. United States, 342 U. S. 246, 263. That
inference is even stronger here, because clause (iv) prohibits “encouraging” and “inducing” a violation of law, which is the object of solicitation and facilitation too. The Ninth Circuit stacked the deck in favor
of ordinary meaning, but it should have given specialized meaning a
fair shake. When words have several plausible definitions, context differentiates among them. Here, the context of these words indicates
that Congress used them as terms of art. Pp. 9–11.
(2) Statutory history is an important part of the relevant context.
When Congress enacted in 1885 what would become the template for
clause (iv), it criminalized “knowingly assisting, encouraging or soliciting” immigration under a contract to perform labor. 23 Stat. 333.
Cite as: 599 U. S. ____ (2023) 3
Syllabus
Then, as now, “encourage” had a specialized meaning that channeled
accomplice liability. And the words “assisting” and “soliciting,” which
appeared alongside “encouraging,” reinforce the narrower criminallaw meaning. When Congress amended that provision in 1917, it
added “induce,” which also carried solicitation and facilitation overtones. 39 Stat. 879. In 1952, Congress enacted the immediate predecessor for clause (iv) and also simplified the language from the 1917
Act, dropping the words “assist” and “solicit,” and making it a crime to
“willfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United
States of . . . any alien . . . not lawfully entitled to enter or reside within
the United States.” 66 Stat. 229. Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweeping—and
constitutionally dubious—message. The better understanding is that
Congress simply streamlined the previous statutory language. Critically, the terms Congress retained (“encourage” and “induce”) substantially overlap in meaning with the terms it omitted (“assist” and “solicit”). Clause (iv) is thus best understood as a continuation of the past.
Pp. 11–13.
(d) Hansen argues that the absence of an express mens rea requirement in clause (iv) means that the statute is not limited to solicitation
and facilitation. But when Congress placed “encourages” and “induces” in clause (iv), the traditional intent associated with solicitation
and facilitation was part of the package. The federal aiding and abetting statute works the same way: It contains no express mens rea requirement but implicitly incorporates the traditional state of mind required for aiding and abetting. Rosemond v. United States, 572 U. S.
65, 70–71. Clause (iv) is situated among other provisions that function
in the same manner. See, e.g., §§1324(a)(1)(A)(v)(I), (II). Since “encourages or induces” draws on the same common-law principles, clause
(iv) also incorporates a mens rea requirement implicitly. Pp. 13–16.
(e) Finally, it bears emphasis that the canon of constitutional avoidance counsels the Court to adopt the Government’s reading if it is at
least “‘fairly possible.’” Jennings v. Rodriguez, 583 U. S. ___, ___. Pp.
16–17.
(f) Section 1324(a)(1)(A)(iv) reaches no further than the purposeful
solicitation and facilitation of specific acts known to violate federal
law. So understood, it does not “prohibi[t] a substantial amount of
protected speech” relative to its “plainly legitimate sweep.” Williams,
553 U. S., at 292. It is undisputed that clause (iv) encompasses a great
deal of nonexpressive conduct, which does not implicate the First
4 UNITED STATES v. HANSEN
Syllabus
Amendment at all, e.g., smuggling noncitizens into the country. Because these types of cases are heartland clause (iv) prosecutions, the
“plainly legitimate sweep” of the provision is extensive. To the extent
clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct, which is unprotected. See, e.g., Giboney v.
Empire Storage & Ice Co., 336 U. S. 490, 502. Hansen, on the other
hand, fails to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted clause (iv)’s immediate
predecessor. Instead, he offers a string of hypotheticals, all premised
on the expansive ordinary meanings of “encourage” and “induce.”
None of these examples are filtered through the traditional elements
of solicitation and facilitation—most importantly, the requirement
that a defendant intend to bring about a specific result. Because clause
(iv) does not have the scope Hansen claims, it does not produce the
horribles he parades. Hansen also resists the idea that Congress can
criminalize speech that solicits or facilitates a civil violation, and some
immigration violations are only civil. But even assuming that clause
(iv) reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawfulto-lawful applications is not lopsided enough to justify facial invalidation for overbreadth. Pp. 17–20.
25 F. 4th 1103, reversed and remanded.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
THOMAS, J., filed a concurring opinion. JACKSON, J., filed a dissenting
opinion, in which SOTOMAYOR, J., joined.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES _________________
No. 22–179
_________________
UNITED STATES, PETITIONER v.
HELAMAN HANSEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2023]
JUSTICE BARRETT delivered the opinion of the Court.
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.
I
In 2014, Mana Nailati, a citizen of Fiji, heard that he
could become a U. S. citizen through an “adult adoption”
program run by Helaman Hansen. Eager for citizenship,
Nailati flew to California to pursue the program. Hansen’s
wife told Nailati that adult adoption was the “quickest and
easiest way to get citizenship here in America.” App. 88.
For $4,500, Hansen’s organization would arrange Nailati’s
adoption, and he could then inherit U. S. citizenship from
2 UNITED STATES v. HANSEN
Opinion of the Court
his new parent. Nailati signed up.
It was too good to be true. There is no path to citizenship
through “adult adoption,” so Nailati waited for months with
nothing to show for it. Faced with the expiration of his visa,
he asked Hansen what to do. Hansen advised him to stay:
“[O]nce you’re in the program,” Hansen explained, “you’re
safe. Immigration cannot touch you.” Id., at 92. Believing
that citizenship was around the corner, Nailati took Hansen’s advice and remained in the country unlawfully.
Hansen peddled his scam to other noncitizens too. After
hearing about the program from their pastor, one husband
and wife met with Hansen and wrote him a check for
$9,000—initially saved for a payment on a house in Mexico—so that they could participate. Another noncitizen paid
Hansen out of savings he had accumulated over 21 years as
a housepainter. Still others borrowed from relatives and
friends. All told, Hansen lured over 450 noncitizens into his
program, and he raked in nearly $2 million as a result.
The United States charged Hansen with (among other
crimes) violations of §1324(a)(1)(A)(iv). That clause forbids
“encourag[ing] or induc[ing] 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.” In addition to convicting him
under clause (iv), the jury found that Hansen had acted “for
the purpose of private financial gain,” triggering a higher
maximum penalty. App. 116; see §1324(a)(1)(B)(i).
After the verdict came in, Hansen saw a potential way
out. Another case involving §1324(a)(1)(A)(iv), United
States v. Sineneng-Smith, was pending before the Ninth
Circuit, which had sua sponte raised the question whether
the clause was an unconstitutionally overbroad restriction
of speech. 910 F. 3d 461, 469 (2018). Taking his cue from
Sineneng-Smith, Hansen moved to dismiss the clause (iv)
charges on First Amendment overbreadth grounds. The
District Court rejected Hansen’s argument and sentenced
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
him.
While Hansen’s appeal was pending, the Ninth Circuit
held in Sineneng-Smith that clause (iv) is unconstitutionally overbroad. Id., at 467–468. That holding was shortlived: We vacated the judgment, explaining that the panel’s
choice to inject the overbreadth issue into the appeal and
appoint amici to argue it “departed so drastically from the
principle of party presentation as to constitute an abuse of
discretion.” 590 U. S. ___, ___ (2020) (slip op., at 3). On
remand, limited to the arguments that Sineneng-Smith had
actually made, the Ninth Circuit affirmed her convictions.
982 F. 3d 766, 770 (2020). But Hansen’s appeal was waiting in the wings, giving the Ninth Circuit a second chance
to address the overbreadth question. It reprised its original
holding in Sineneng-Smith.
As in Sineneng-Smith, the Ninth Circuit focused on
whether clause (iv) is a narrow prohibition covering solicitation and facilitation of illegal conduct, or a sweeping ban
that would pull in “statements or conduct that are likely
repeated countless times across the country every day.” 25
F. 4th 1103, 1110 (2022). It adopted the latter interpretation, asserting that clause (iv) criminalizes speech such as
“encouraging an undocumented immigrant to take shelter
during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist
that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to
undocumented immigrants.” Ibid. Concluding that clause
(iv) covers an “‘alarming’” amount of protected speech relative to its narrow legitimate sweep, the Ninth Circuit held
the provision facially overbroad. Ibid.
The Ninth Circuit denied the Government’s petition for
rehearing en banc over the dissent of nine judges. Judge
Bumatay, who wrote the principal dissent, attributed the
panel’s overbreadth concern to a misreading of the statute.
4 UNITED STATES v. HANSEN
Opinion of the Court
See 40 F. 4th 1049, 1057–1058 (2022). Correctly interpreted, he explained, clause (iv) reaches only criminal solicitation and aiding and abetting. Ibid. On that reading, the
provision raises no overbreadth problem because, “[e]ven if
§1324(a)(1)(A)(iv) somehow reaches protected speech, that
reach is far outweighed by the provision’s broad legitimate
sweep.” Id., at 1072.
We granted certiorari. 598 U. S. ___ (2022).
II
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” Wisely,
Hansen does not claim that the First Amendment protects
the communications for which he was prosecuted. Cf. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538
U. S. 600, 612 (2003) (“[T]he First Amendment does not
shield fraud”). Instead, he raises an overbreadth challenge:
He argues that clause (iv) punishes so much protected
speech that it cannot be applied to anyone, including him.
Brief for Respondent 9–10.
An overbreadth challenge is unusual. For one thing, litigants typically lack standing to assert the constitutional
rights of third parties. See, e.g., Powers v. Ohio, 499 U. S.
400, 410 (1991). For another, litigants mounting a facial
challenge to a statute normally “must establish that no set
of circumstances exists under which the [statute] would be
valid.” United States v. Salerno, 481 U. S. 739, 745 (1987)
(emphasis added). Breaking from both of these rules, the
overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.
We have justified this doctrine on the ground that it provides breathing room for free expression. Overbroad laws
“may deter or ‘chill’ constitutionally protected speech,” and
if would-be speakers remain silent, society will lose their
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
contributions to the “marketplace of ideas.” Virginia v.
Hicks, 539 U. S. 113, 119 (2003). To guard against those
harms, the overbreadth doctrine allows a litigant (even an
undeserving one) to vindicate the rights of the silenced, as
well as society’s broader interest in hearing them speak.
Williams, 553 U. S., at 292. If the challenger demonstrates
that the statute “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep,”
then society’s interest in free expression outweighs its interest in the statute’s lawful applications, and a court will
hold the law facially invalid. Ibid.; see Hicks, 539 U. S., at
118–119.
Because it destroys some good along with the bad,
“[i]nvalidation for overbreadth is ‘“strong medicine”’ that is
not to be ‘casually employed.’” Williams, 553 U. S., at 293.
To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number
must be substantially disproportionate to the statute’s lawful sweep. New York State Club Assn., Inc. v. City of New
York, 487 U. S. 1, 14 (1988); Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800–801
(1984). In the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually do—caseby-case.
III
A
To judge whether a statute is overbroad, we must first
determine what it covers. Recall that §1324(a)(1)(A)(iv)
makes it unlawful to “encourag[e] or induc[e] 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.”1 The issue is
—————— 1Although the statutory terms are not coextensive, we use “alien” and
“noncitizen” as rough equivalents here. See 8 U. S. C. §1101(a)(3); Barton v. Barr, 590 U. S. ___, ___, n. 2 (2020) (slip op., at 3, n. 2).
6 UNITED STATES v. HANSEN
Opinion of the Court
whether Congress used “encourage” and “induce” as terms
of art referring to criminal solicitation and facilitation (thus
capturing only a narrow band of speech) or instead as those
terms are used in everyday conversation (thus encompassing a broader swath). An overbreadth challenge obviously
has better odds on the latter view.
1
We start with some background on solicitation and facilitation. Criminal solicitation is the intentional encouragement of an unlawful act. ALI, Model Penal Code §5.02(1),
p. 364 (1985) (MPC); 2 W. LaFave, Substantive Criminal
Law §11.1 (3d ed. 2022) (LaFave). Facilitation—also called
aiding and abetting—is the provision of assistance to a
wrongdoer with the intent to further an offense’s commission. See, e.g., Twitter, Inc. v. Taamneh, 598 U. S. ___, ___–
___ (2023) (slip op., at 13–14). While the crime of solicitation is complete as soon as the encouragement occurs, see
LaFave §11.1, liability for aiding and abetting requires that
a wrongful act be carried out, see id., §13.2(a). Neither solicitation nor facilitation requires lending physical aid; for
both, words may be enough. Reves v. Ernst & Young, 507
U. S. 170, 178 (1993) (one may aid and abet by providing
“‘assistance rendered by words, acts, encouragement, support, or presence’”); MPC §5.02(2), at 365 (solicitation may
take place through words or conduct); LaFave §11.1(c)
(same). Both require an intent to bring about a particular
unlawful act. See, e.g., Hicks v. United States, 150 U. S.
442, 449 (1893) (“[W]ords of encouragement and abetting
must” be used with “the intention as respects the effect to
be produced”). And both are longstanding criminal theories
targeting those who support the crimes of a principal
wrongdoer. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 181 (1994);
LaFave §11.1(a).
The terms “encourage” and “induce” are among the “most
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
common” verbs used to denote solicitation and facilitation.
Id., §13.2(a); see also 1 J. Ohlin, Wharton’s Criminal Law
§10:1, p. 298 (16th ed. 2021) (Wharton) (“[A]dditional language—such as encourage, counsel, and command—usually
accompanies ‘aid’ or ‘abet’” (emphasis added)). In fact, their
criminal-law usage dates back hundreds of years. See 40
F. 4th, at 1062–1064 (opinion of Bumatay, J.). A prominent
early American legal dictionary, for instance, defines “abet”
as “[t]o encourage or set another on to commit a crime.” 1
J. Bouvier, Law Dictionary 30 (1839) (emphasis added).
Other sources agree. See, e.g., Wharton §10:1, at 298
(“‘abet,’” at common law, meant “to encourage, advise, or
instigate the commission of a crime” (emphasis added));
Black’s Law Dictionary 6 (1st ed. 1891) (to “abet” “[i]n criminal law” was “[t]o encourage, incite, or set another on to
commit a crime” (emphasis added)); cf. id., at 667 (11th ed.
2019) (defining “encourage” with, in part, a cross-reference
to “aid and abet”).
This pattern is on display in the federal criminal code,
which, for over a century, has punished one who “induces”
a crime as a principal. See Act of Mar. 4, 1909, §332, 35
Stat. 1152 (“Whoever . . . aids, abets, counsels, commands,
induces, or procures [the commission of an offense] is a principal” (emphasis added)); 18 U. S. C. §2(a) (listing the same
verbs today). The Government offers other examples as
well: The ban on soliciting a crime of violence penalizes
those who “solici[t], comman[d], induc[e], or otherwise endeavo[r] to persuade” another person “to engage in [the unlawful] conduct.” §373(a) (emphasis added). Federal law
also criminalizes “persuad[ing], induc[ing], entic[ing], or coerc[ing]” one “to engage in prostitution” or other unlawful
***ual activity involving interstate commerce. §§2422(a),
(b) (emphasis added). The Model Penal Code echoes these
formulations, defining solicitation as, in relevant part,
“command[ing], encourag[ing] or request[ing] another person to engage in specific [unlawful] conduct.” MPC §5.02(1),
8 UNITED STATES v. HANSEN
Opinion of the Court
at 364 (emphasis added). And the commentary to the
Model Penal Code notes that similar prohibitions may employ other verbs, such as “induce.” See id., Comment 3, at
372–373, n. 25 (collecting examples).
The use of both verbs to describe solicitation and facilitation is widespread in the States too. Nevada considers
“[e]very person” who “aided, abetted, counseled, encouraged, hired, commanded, induced, or procured” an offense
to be a principal. Nev. Rev. Stat. §195.020 (2021) (emphasis
added). Arizona provides that one who “commands, encourages, requests, or solicits another person to engage in specific conduct” commits the offense of solicitation. Ariz. Rev.
Stat. Ann. §13–1002(A) (2020) (emphasis added). And New
Mexico imposes criminal liability on one who “with the intent” for another to commit a crime “solicits, commands, requests, induces . . . or otherwise attempts to promote or facilitate” the offense. N. M. Stat. Ann. §30–28–3(A) (2018)
(emphasis added). These States are by no means outliers—
“induce” or “encourage” describe similar offenses in the
criminal codes of every State. App. to Brief for State of Montana et al. as Amici Curiae 1–44; see, e.g., Ala. Code §13A–
2–23(1) (2015) (“induces”); Colo. Rev. Stat. §18–1–603
(2022) (“encourages”); Fla. Stat. §777.04(2) (2022) (“encourages”); Haw. Rev. Stat. §705–510(1) (2014) (“encourages”);
Ind. Code §35–41–2–4 (2022) (“induces”); Kan. Stat. Ann.
§21–5303(a) (2020) (“encouraging”); N. D. Cent. Code Ann.
§12.1–06–03(1) (2021) (“induces”); Tex. Penal Code Ann.
§7.02(a)(2) (West 2021) (“encourages”); W. Va. Code Ann.
§61–11–8a(b)(1) (Lexis 2020) (“inducement”); Wyo. Stat.
Ann. §6–1–302(a) (2021) (“encourages”).
In sum, the use of “encourage” and “induce” to describe
solicitation and facilitation is both longstanding and pervasive. And if 8 U. S. C. §1324(a)(1)(A)(iv) refers to solicitation and facilitation as they are typically understood, an
overbreadth challenge would be hard to sustain.
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Opinion of the Court
2
Hansen, like the Ninth Circuit, insists that clause (iv)
uses “encourages” and “induces” in their ordinary rather
than their specialized sense. While he offers definitions
from multiple dictionaries, the terms are so familiar that
two samples suffice. In ordinary parlance, “induce” means
“[t]o lead on; to influence; to prevail on; to move by persuasion or influence.” Webster’s New International Dictionary
1269 (2d ed. 1953). And “encourage” means to “inspire with
courage, spirit, or hope.” Webster’s Third New International Dictionary 747 (1966).
In Hansen’s view, clause (iv)’s use of the bare words “encourages” or “induces” conveys these ordinary meanings.
See Brief for Respondent 14. “[T]hat encouragement can
include aiding and abetting,” he says, “does not mean it is
restricted to aiding and abetting.” Id., at 25. And because
clause (iv) “proscribes encouragement, full stop,” id., at 14,
it prohibits even an “op-ed or public speech criticizing the
immigration system and supporting the rights of long-term
undocumented noncitizens to remain, at least where the author or speaker knows that, or recklessly disregards
whether, any of her readers or listeners are undocumented.” Id., at 17–18. If the statute reaches the many
examples that Hansen posits, its applications to protected
speech might swamp its lawful applications, rendering it
vulnerable to an overbreadth challenge.
B
We hold that clause (iv) uses “encourages or induces” in
its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation. In
truth, the clash between definitions is not much of a contest. “Encourage” and “induce” have well-established legal
meanings—and when Congress “borrows terms of art in
which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the
10 UNITED STATES v. HANSEN
Opinion of the Court
cluster of ideas that were attached to each borrowed word.”
Morissette v. United States, 342 U. S. 246, 263 (1952); see
also, e.g., United States v. Shabani, 513 U. S. 10, 13–14
(1994).
To see how this works, consider the word “attempts,”
which appears in clause (iv)’s next-door neighbors. See
§§1324(a)(1)(A)(i)–(iii). In a criminal prohibition, we would
not understand “attempt” in its ordinary sense of “try.”
Webster’s New Universal Unabridged Dictionary 133 (2d
ed. 2001). We would instead understand it to mean taking
“a substantial step” toward the completion of a crime with
the requisite mens rea. United States v. Resendiz-Ponce,
549 U. S. 102, 107 (2007). “Encourages or induces” likewise
carries a specialized meaning. After all, when a criminallaw term is used in a criminal-law statute, that—in and of
itself—is a good clue that it takes its criminal-law meaning.
And the inference is even stronger here, because clause (iv)
prohibits “encouraging” and “inducing” a violation of law.
See §1324(a)(1)(A)(iv). That is the focus of criminal solicitation and facilitation too.
In concluding otherwise, the Ninth Circuit stacked the
deck in favor of ordinary meaning. See 25 F. 4th, at 1109–
1110; see also United States v. Hernandez-Calvillo, 39
F. 4th 1297, 1304 (CA10 2022) (“Our construction of [the
verbs in clause (iv)] begins with their ordinary meaning, not
their specialized meaning in criminal law”). But it should
have given specialized meaning a fair shake. When words
have several plausible definitions, context differentiates
among them. That is just as true when the choice is between ordinary and specialized meanings, see, e.g., Corning
Glass Works v. Brennan, 417 U. S. 188, 202 (1974) (“While
a layman might well assume that time of day worked reflects one aspect of a job’s ‘working conditions,’ the term has
a different and much more specific meaning in the language
of industrial relations”), as it is when a court must choose
among multiple ordinary meanings, see, e.g., Muscarello v.
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Opinion of the Court
United States, 524 U. S. 125, 127–128 (1998) (choosing between ordinary meanings of “carry”). Here, the context of
these words—the water in which they swim—indicates that
Congress used them as terms of art.
Statutory history is an important part of this context. In
1885, Congress enacted a law that would become the template for clause (iv). That law prohibited “knowingly assisting, encouraging or soliciting” immigration under a contract
to perform labor. Act of Feb. 26, 1885, ch. 164, §3, 23 Stat.
333 (1885 Act) (emphasis added). Then, as now, “encourage” had a specialized meaning that channeled accomplice
liability. See 1 Bouvier, Law Dictionary 30 (“abet” means
“[t]o encourage or set another on to commit a crime”);
Black’s Law Dictionary 6 (1891) (to “abet” is “[t]o encourage,
incite, or set another on to commit a crime”). And the words
“assisting” and “soliciting,” which appeared alongside “encouraging” in the 1885 Act, reinforce that Congress gave the
word “encouraging” its narrower criminal-law meaning.
See Dubin v. United States, 599 U. S. ___, ___ (2023) (slip
op., at 12) (a word capable of many meanings is refined by
its neighbors, which often “ ‘avoid[s] the giving of unintended breadth to the Acts of Congress’”). Unsurprisingly,
then, when this Court upheld the 1885 Act against a constitutional challenge, it explained that Congress “has the
power to punish any who assist” in introducing noncitizens
into the country—without suggesting that the term “encouraging” altered the scope of the prohibition. Lees v.
United States, 150 U. S. 476, 480 (1893) (emphasis added).
In the ensuing decades, Congress both added to and subtracted from the “encouraging” prohibition in the 1885 Act.
Throughout, it continued to place “encouraging” alongside
“assisting” and “soliciting.” See Act of Mar. 3, 1903, §5, 32
Stat. 1214–1215; Act of Feb. 20, 1907, §5, 34 Stat. 900.
Then, in 1917, Congress added “induce” to the string of
verbs. Act of Feb. 5, 1917, §5, 39 Stat. 879 (1917 Act) (mak-
12 UNITED STATES v. HANSEN
Opinion of the Court
ing it a crime “to induce, assist, encourage, or solicit, or attempt to induce, assist, encourage, or solicit the importation
or migration of any contract laborer . . . into the United
States”). Like “encourage,” the word “induce” carried solicitation and facilitation overtones at the time of this enactment. See Black’s Law Dictionary 617 (1891) (defining “inducement” to mean “that which leads or tempts to the
commission of crime”). In fact, Congress had just recently
used the term in a catchall prohibition on criminal facilitation. See Act of Mar. 4, 1909, §332, 35 Stat. 1152 (“Whoever
. . . aids, abets, counsels, commands, induces, or procures
[the commission of an offense], is a principal” (emphasis
added)). And as with “encourage,” the meaning of “induce”
was clarified and narrowed by its statutory neighbors in the
1917 Act—“assist” and “solicit.”
Congress enacted the immediate forerunner of the modern clause (iv) in 1952 and, in doing so, simplified the language from the 1917 Act. Most notably, the 1952 version
dropped the words “assist” and “solicit,” instead making it
a crime to “willfully or knowingly encourag[e] or induc[e],
or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United States of . . . any alien . . .
not lawfully entitled to enter or reside within the United
States.” Immigration and Nationality Act, §274(a)(4), 66
Stat. 229. Three decades later, Congress brought 8 U. S. C.
§1324(a)(1)(A)(iv) into its current form—still without the
words “assist” or “solicit.” Immigration Reform and Control
Act of 1986, §112(a), 100 Stat. 3382 (making it a crime to
“encourag[e] or induc[e] 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”).
On Hansen’s view, these changes dramatically broadened
the scope of clause (iv)’s prohibition on encouragement. Before 1952, he says, the words “assist” and “solicit” may have
cabined “encourage” and “induce,” but eliminating them
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Opinion of the Court
severed any connection the prohibition had to solicitation
and facilitation. Brief for Respondent 25–26. In other
words, Hansen claims, the 1952 and 1986 revisions show
that Congress opted to make “protected speech, not conduct, a crime.” Id., at 27.
We do not agree that the mere removal of the words “assist” and “solicit” turned an ordinary solicitation and facilitation offense into a novel and boundless restriction on
speech. Hansen’s argument would require us to assume
that Congress took a circuitous route to convey a sweeping—and constitutionally dubious—message. The better
understanding is that Congress simply “streamlined” the
pre-1952 statutory language—which, as any nonlawyer
who has picked up the U. S. Code can tell you, is a commendable effort. 40 F. 4th, at 1066 (opinion of Bumatay,
J.). In fact, the streamlined formulation mirrors this
Court’s own description of the 1917 Act, which is further
evidence that Congress was engaged in a cleanup project,
not a renovation. See United States v. Lem Hoy, 330 U. S.
724, 727 (1947) (explaining that the 1917 Act barred “contract laborers, defined as persons induced or encouraged to
come to this country by offers or promises of employment”
(emphasis added)); id., at 731 (describing the 1917 Act as a
“prohibition against employers inducing laborers to enter
the country” (emphasis added)). And critically, the terms
that Congress retained (“encourage” and “induce”) substantially overlap in meaning with the terms it omitted (“assist”
and “solicit”). LaFave §13.2(a). Clause (iv) is best understood as a continuation of the past, not a sharp break from
it.
C
Hansen’s primary counterargument is that clause (iv) is
missing the necessary mens rea for solicitation and facilitation. Brief for Respondent 28–31. Both, as traditionally
understood, require that the defendant specifically intend
14 UNITED STATES v. HANSEN
Opinion of the Court
that a particular act be carried out. Supra, at 6. “Encourages or induces,” however, is not modified by any express
intent requirement. Because the text of clause (iv) lacks
that essential element, Hansen protests, it cannot possibly
be limited to either solicitation or facilitation.
Once again, Hansen ignores the longstanding history of
these words. When Congress transplants a common-law
term, the “‘old soil’” comes with it. Taggart v. Lorenzen,
587 U. S. ___, ___–___ (2019) (slip op., at 5–6). So when
Congress placed “encourages” and “induces” in clause (iv),
the traditional intent associated with solicitation and facilitation was part of the package. That, in fact, is precisely
how the federal aiding-and-abetting statute works. It contains no express mens rea requirement, providing only that
a person who “aids, abets, counsels, commands, induces or
procures” a federal offense is “punishable as a principal.”
18 U. S. C. §2(a). Yet, consistent with “a centuries-old view
of culpability,” we have held that the statute implicitly incorporates the traditional state of mind required for aiding
and abetting. Rosemond v. United States, 572 U. S. 65, 70–
71 (2014).
Clause (iv) is situated among other provisions that work
the same way. Consider those that immediately follow it:
The first makes it a crime to “engag[e] in any conspiracy to
commit any of the preceding acts,” 8 U. S. C.
§1324(a)(1)(A)(v)(I), and the second makes it a crime to
“ai[d] or abe[t] the commission of any of the preceding acts,”
§1324(a)(1)(A)(v)(II). Neither of these clauses explicitly
states an intent requirement. Yet both conspiracy and aiding and abetting are familiar common-law offenses that
contain a particular mens rea. See Rosemond, 572 U. S., at
76 (aiding and abetting); Ocasio v. United States, 578 U. S.
282, 287–288 (2016) (conspiracy). Take an obvious example: If the words “aids or abets” in clause (v)(II) were considered in a vacuum, they could be read to cover a person
who inadvertently helps another commit a §1324(a)(1)(A)
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Opinion of the Court
offense. But a prosecutor who tried to bring such a case
would not succeed. Why? Because aiding and abetting implicitly carries a mens rea requirement—the defendant generally must intend to facilitate the commission of a crime.
LaFave §13.2(b). Since “encourages or induces” in clause
(iv) draws on the same common-law principles, it too incorporates them implicitly.2
Still, Hansen reiterates that if Congress had wanted to
require intent, it could easily have said so—as it did elsewhere in clause (iv). The provision requires that the defendant encourage or induce an unlawful act and that the
defendant “kno[w]” or “reckless[ly] disregard” the fact that
the act encouraged “is or will be in violation of law.”
§1324(a)(1)(A)(iv). Yet while Congress spelled out this requirement, it included no express mens rea element for “encourages or induces.” Indeed, Hansen continues, the statute used to require that the encouragement or inducement
be committed “willfully or knowingly,” but Congress deleted
those words in 1986. Brief for Respondent 30. Taken together, Hansen says, this evidence reflects that Congress
aimed to make a defendant liable for “encouraging or inducing” without respect to her state of mind.
But there is a simple explanation for why “encourages or
induces” is not modified by an express mens rea requirement: There is no need for it. At the risk of sounding like a
broken record, “encourage” and “induce,” as terms of art,
carry the usual attributes of solicitation and facilitation—
including, once again, the traditional mens rea. Congress
—————— 2The Ninth Circuit believed that the Government’s “solicitation and
facilitation” reading of clause (iv) would create impermissible surplusage
with the aiding-and-abetting provision in clause (v)(II). 25 F. 4th 1103,
1108–1109 (2022). Hansen does not press that argument before this
Court—for good reason. Clause (iv) criminalizes the aiding and abetting
of an immigration violation, whereas clause (v)(II) prohibits the aiding
and abetting of “any of the preceding acts.” In other words, clause (v)(II)
applies to aiding and abetting a first-line facilitator. Another difference:
Clause (iv) criminalizes not only facilitation, but solicitation too.
16 UNITED STATES v. HANSEN
Opinion of the Court
might have rightfully seen the express mens rea requirement as unnecessary and cut it in a further effort to streamline clause (iv). And in any event, the omission of the unnecessary modifier is certainly not enough to overcome the
“presumption of scienter” that typically separates wrongful
acts “from ‘otherwise innocent conduct.’” Xiulu Ruan v.
United States, 597 U. S. ___, ___ (2022) (slip op., at 5); see
also Elonis v. United States, 575 U. S. 723, 736–737 (2015).
Nor does the scienter applicable to a distinct element
within clause (iv)—that the defendant “kno[w]” or “reckless[ly] disregard . . . the fact that” the noncitizen’s “coming
to, entry, or residence is or will be in violation of law”—tell
us anything about the mens rea for “encourages or induces.”
Many criminal statutes do not require knowledge of illegality, but rather only “‘factual knowledge as distinguished
from knowledge of the law.’” Bryan v. United States, 524
U. S. 184, 192 (1998). So Congress’s choice to specify a mental state for this element tells us something that we might
not normally infer, whereas the inclusion of a mens rea requirement for “encourages or induces” would add nothing.
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
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
harmony, not to manufacture conflict.3
IV
Section 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific acts known to
violate federal law. So understood, the statute does not
“prohibi[t] a substantial amount of protected speech” relative to its “plainly legitimate sweep.” Williams, 553 U. S.,
at 292.
Start with clause (iv)’s valid reach. Hansen does not dispute that the provision encompasses a great deal of nonexpressive conduct—which does not implicate the First
Amendment at all. Brief for Respondent 22–23. Consider
just a few examples: smuggling noncitizens into the country, see United States v. Okatan, 728 F. 3d 111, 113–114
(CA2 2013); United States v. Yoshida, 303 F. 3d 1145, 1148–
1151 (CA9 2002), providing counterfeit immigration documents, see United States v. Tracy, 456 Fed. Appx. 267, 269–
270 (CA4 2011) (per curiam); United States v. CastilloFelix, 539 F. 2d 9, 11 (CA9 1976), and issuing fraudulent
Social Security numbers to noncitizens, see Edwards v.
Prime, Inc., 602 F. 3d 1276, 1295–1297 (CA11 2010). A
brief survey of the Federal Reporter confirms that these are
heartland clause (iv) prosecutions. See 40 F. 4th, at 1072
(opinion of Bumatay, J.) (listing additional examples, including arranging fraudulent marriages and transporting
noncitizens on boats). So the “plainly legitimate sweep” of
the provision is extensive.
When we turn to the other side of the ledger, we find it
pretty much blank. Hansen fails to identify a single prosecution for ostensibly protected expression in the 70 years
—————— 3The 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.
18 UNITED STATES v. HANSEN
Opinion of the Court
since Congress enacted clause (iv)’s immediate predecessor.
Instead, he offers a string of hypotheticals, all premised on
the expansive ordinary meanings of “encourage” and “induce.” In his view, clause (iv) would punish the author of
an op-ed criticizing the immigration system, “[a] minister
who welcomes undocumented people into the congregation
and expresses the community’s love and support,” and a
government official who instructs “undocumented members
of the community to shelter in place during a natural disaster.” Brief for Respondent 16–19. Yet none of Hansen’s examples are filtered through the elements of solicitation or
facilitation—most importantly, the requirement (which we
again repeat) that a defendant intend to bring about a specific result. See, e.g., Rosemond, 572 U. S., at 76. Clause
(iv) does not have the scope Hansen claims, so it does not
produce the horribles he parades.
To the extent that clause (iv) reaches any speech, it
stretches no further than speech integral to unlawful conduct.4 “[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken,
written, or printed.” Giboney v. Empire Storage & Ice Co.,
336 U. S. 490, 502 (1949). Speech intended to bring about
a particular unlawful act has no social value; therefore, it
is unprotected. Williams, 553 U. S., at 298. We have applied this principle many times, including to the promotion
—————— 4We also note that a number of clause (iv) prosecutions (like Hansen’s)
are predicated on fraudulent representations through speech for personal gain. See, e.g., United States v. Sineneng-Smith, 982 F. 3d 766,
776 (CA9 2020); United States v. Kalu, 791 F. 3d 1194, 1198–1199 (CA10
2015). “[F]alse claims [that] are made to effect a fraud or secure moneys
or other valuable considerations” are not protected by the First Amendment. United States v. Alvarez, 567 U. S. 709, 723 (2012) (plurality opinion). These examples increase the list of lawful applications.
Cite as: 599 U. S. ____ (2023) 19
Opinion of the Court
of a particular piece of contraband, id., at 299, solicitation
of unlawful employment, Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Relations, 413 U. S. 376, 388 (1973),
and picketing with the “sole, unlawful [and] immediate objective” of “induc[ing]” a target to violate the law, Giboney,
336 U. S., at 502. It applies to clause (iv) too.5
Hansen has no quibble with that conclusion to the extent
that clause (iv) criminalizes speech that solicits or facilitates a criminal violation, like crossing the border unlawfully or remaining in the country while subject to a removal
order. See §§1253(a), 1325(a), 1326(a). He agrees that
these applications of §1324(a)(1)(A)(iv) are permissible—in
fact, he concedes that he would lose if clause (iv) covered
only solicitation and facilitation of criminal conduct. Tr. of
Oral Arg. 61–62. But he resists the idea that the First
Amendment permits Congress to criminalize speech that
solicits or facilitates a civil violation—and some immigration violations are only civil. Brief for Respondent 38. For
instance, residing in the United States without lawful status is subject to the hefty penalty of removal, but it generally does not carry a criminal sentence. See Arizona v.
United States, 567 U. S. 387, 407 (2012).
Call this the “mismatch” theory: Congress can impose
criminal penalties on speech that solicits or facilitates a
criminal violation and civil penalties on speech that solicits
or facilitates a civil violation—but it cannot impose criminal
penalties on speech that solicits or facilitates a civil violation. See Tr. of Oral Arg. 62–63; Brief for Eugene Volokh
as Amicus Curiae 5–7. If this theory is sound, then clause
—————— 5Overbreadth doctrine trafficks in hypotheticals, so we do not (and
cannot) hold that all future applications of clause (iv) will be lawful, nor
do we suggest that they will necessarily fall into the speech-integral-toconduct category. That would require a crystal ball. Nothing in our opinion today precludes a litigant from bringing an as-applied challenge to
clause (iv) in the future—whether based on the First Amendment or another constitutional constraint.
20 UNITED STATES v. HANSEN
Opinion of the Court
(iv) reaches some expression that is outside the speech-integral-to-unlawful-conduct exception. Of course, “that
speech is not categorically unprotected does not mean it is
immune from regulation, but only that ordinary First
Amendment scrutiny would apply.” Brief for Respondent
44.
We need not address this novel theory, because even if
Hansen is right, his overbreadth challenge fails. To succeed, he has to show that clause (iv)’s overbreadth is “substantial . . . relative to [its] plainly legitimate sweep.” Williams, 553 U. S., at 292. As we have discussed, the
provision has a wide legitimate reach insofar as it applies
to nonexpressive conduct and speech soliciting or facilitating criminal violations of immigration law. Even assuming
that clause (iv) reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not
lopsided enough to justify the “strong medicine” of facial invalidation for overbreadth. Broadrick v. Oklahoma, 413
U. S. 601, 613 (1973). In other words, Hansen asks us to
throw out too much of the good based on a speculative shot
at the bad. This is not the stuff of overbreadth—as-applied
challenges can take it from here.
* * *
The judgment of the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES _________________
No. 22–179
_________________
UNITED STATES, PETITIONER v.
HELAMAN HANSEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2023]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full. I write separately to
emphasize how far afield the facial overbreadth doctrine
has carried the Judiciary from its constitutional role. The
facial overbreadth doctrine “purports to grant federal
courts the power to invalidate a law” that is constitutional
as applied to the party before it “‘if a substantial number of
its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.’” Americans for
Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021)
(THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2) (quoting United States v. SinenengSmith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring)
(slip op., at 1)). As I have explained, this doctrine “lacks
any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges,” and
distorts the judicial role. Id., at ___ (slip op., at 9).
There is no question that the First Amendment does not
shield respondent’s scheme from prosecution under 8
U. S. C. §1324(a)(1)(A)(iv), which prohibits “encourag[ing]
or induc[ing] 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.” Respondent defrauded nearly 500 aliens by
telling them that they could become U. S. citizens through
2 UNITED STATES v. HANSEN
THOMAS, J., concurring
adult adoption; he charged them up to $10,000 apiece,
knowing full well that his scheme would not lead to citizenship. The Ninth Circuit even acknowledged below that “it
is clear,” both “from previous convictions under the statute
. . . and likely from [respondent’s] conduct here, that
[§1324(a)(1)(A)(iv)] has at least some ‘plainly legitimate
sweep.’” 25 F. 4th 1103, 1106–1107 (2022).
Yet, instead of applying Congress’ duly enacted law to respondent, the Ninth Circuit held the statute unconstitutional under this Court’s facial overbreadth doctrine. Specifically, it took the doctrine as license to “speculate about
imaginary cases and sift through an endless stream of fanciful hypotheticals,” from which it concluded that the statute may be unconstitutional as applied to other (hypothetical) individuals in other (hypothetical) situations. 40
F. 4th 1049, 1071 (2022) (Bumatay, J., dissenting from denial of rehearing en banc) (internal quotation marks omitted). It then tallied up those hypothetical constitutional violations and determined that they were “substantial”
enough to warrant holding the law unconstitutional in toto.
25 F. 4th, at 1109–1111. That line of reasoning starkly
demonstrates that this Court’s facial overbreadth doctrine
offers a license for federal courts to act as “roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–
611 (1973) (majority opinion of White, J.).
Such “roving commissions” are hardly a new idea. When
they met in 1787, the Constitution’s Framers were well
aware of a body that wielded such power: the New York
Council of Revision (Council). Created by the New York
Constitution of 1777, the Council consisted of the Governor,
the Chancellor, and the judges of the New York Supreme
Court. 2 B. Poore, The Federal and State Constitutions,
Colonial Charters, and Other Organic Laws of the United
States 1328, 1332 (2d ed. 1878). Noting that “laws inconsistent with the spirit of this constitution, or with the public
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., concurring
good, may be hastily and unadvisedly passed,” section III of
the New York Constitution required the two Houses of the
New York Legislature to present “all bills which have
passed the senate and assembly” to the “council for their
revisal and consideration.” Ibid. The Council’s power “to
revise legislation” meant that, if it “objected to any measure
of a bill, it would return a detailed list of its objections to
the legislature,” which “could change the bill to conform to
those objections, override” them by a two-thirds vote of both
Houses, “or simply let the bill die.” J. Barry, Comment: The
Council of Revision and the Limits of Judicial Power, 56 U.
Chi. L. Rev. 235, 245 (1989) (Barry) (emphasis deleted).1
The grounds for the Council’s vetoes “ranged from an act
being ‘inconsistent with the spirit of the Constitution’ to an
act being passed without ‘the persons affected thereby having an opportunity of being heard’” to an act being “‘inconsistent with the public good.’” Id., at 245–246 (alteration
and footnote omitted).
At first, the Council was a well-respected institution, and
several prominent delegates to the Philadelphia Convention sought to replicate it in the Federal Constitution. Resolution 8 of the Virginia Plan proposed a federal council of
revision composed of “the Executive and a convenient number of the National Judiciary” that would have “authority
to examine [and veto] every act of the National Legislature
before it shall operate.” 1 Records of the Federal Convention of 1787, §8, p. 21 (M. Farrand ed. 1911) (Farrand). The
Council’s veto would “be final . . . unless the Act of the National Legislature be again passed.” Ibid.; see also J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 30–33 (2010).
The proponents of a council were clear that they sought
—————— 1The term “revise” was understood to mean “[t]o review.” 2 S. Johnson,
A Dictionary of the English Language (4th ed. 1773); N. Bailey, A Universal Etymological English Dictionary (22 ed. 1770) (“to review, to look
over again”).
4 UNITED STATES v. HANSEN
THOMAS, J., concurring
to empower judges to pass upon not only the constitutionality of laws, but also their policy. One of the council’s main
supporters, James Wilson, stated that the council would
share the New York Council’s power of reviewing laws, not
only on constitutional grounds, but also to determine if they
were “unjust,” “unwise,” “dangerous,” or “destructive.” 2
Farrand 73. Such a power was needed, according to Wilson,
because the ordinary judicial power of refusing to apply unconstitutional laws in cases or controversies did not include
the authority to decline to give effect to a law on policy
grounds. Ibid. The other leading proponent of a council,
James Madison, similarly argued that the council would
veto “laws unwise in their principle, or incorrect in their
form.” 1 id., at 139. For Madison, the council was necessary
to remedy the defect caused by the limits of judicial power:
Judges could not prevent the “pursuit of . . . unwise & unjust measures.” 2 id., at 74. In that vein, George Mason
similarly argued that a council was needed to prevent “unjust oppressive or pernicious” laws from taking effect. Id.,
at 78.
Significantly, proponents of a council rejected the premise that judicial power included a power to refuse to apply
a law for policy reasons. In fact, “[n]either side thought
judges would or should be authorized to make policy—
whether couched in the language of justice or rights—
through their exercise of the judicial power. . . . [T]he debate over a council of revision was made necessary . . . because . . . not a single delegate on either side of the debate
proposed or supported having judges perform a policymaking role from the bench.” J. Anderson, Learning From the
Great Council of Revision Debate, 68 Rev. Politics 79, 99–
100 (2006). From that shared premise, the council’s proponents argued that such an institution was needed precisely
because it would be incompatible with judicial duty to take
policy concerns into account in adjudicating cases. See J.
Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933,
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THOMAS, J., concurring
963 (2018).2
Despite the support of respected delegates like Wilson
and Madison, the Convention voted against creating a federal council of revision on four different occasions. P. Hamburger, Law and Judicial Duty 511 (2008). No other proposal was considered and rejected so many times. Ibid.
Like the council’s supporters, opponents of the proposal understood that the judicial power is only the authority to “resolve private disputes between particular parties,” rather
than “matters affecting the general public.” Barry 255.
Working from that shared premise, they reasoned that it
was “‘quite foreign from the nature of [the judicial] office to
make them judges of the policy of public measures,’” as “‘no
maxim was better established’ than that ‘the power of making ought to be kept distinct from that of expounding, the
law.’” Ibid. (quoting 1 Farrand 97–98 (E. Gerry); 2 id., at
75 (C. Strong)); see also 1 id., at 140 (J. Dickinson). Indeed,
opponents observed that “the Judges” were “of all men the
most unfit to” have a veto on laws before their enactment.
2 id., at 80 (J. Rutledge). This was so not only because
judges could not be “presumed to possess any peculiar
knowledge of the mere policy of public measures,” id., at 73
(N. Ghorum), but also because, to preserve judicial integrity, they “ought never to give their opinion on a law till it
comes before them” as an issue for decision in a concrete
case or controversy, id., at 80 (J. Rutledge); see also Perez
v. Mortgage Bankers Assn., 575 U. S. 92, 121 (2015)
(THOMAS, J., concurring in judgment) (“[J]udicial involve-
—————— 2Later statements of the proposed council’s supporters confirm their
understanding that the judicial station is incompatible with making policy judgments. See Moodie v. Ship Phoebe Anne, 3 Dall. 319 (1796) (Elsworth, C. J.) (“Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right”); 8 Writings of
James Madison 387 (G. Hunt ed. 1908) (“[Q]uestions of policy and expediency, are unsusceptible of judicial cognizance and decision”).
6 UNITED STATES v. HANSEN
THOMAS, J., concurring
ment in such a council would foster internal biases”). Opponents thus concluded that to include judges in the policy
decisions inherent in the legislative process would be a
“dangerous innovation,” one that would erode public confidence in their ability to perform their “proper official character.” 2 Farrand 75–76 (L. Martin); see also id., at 77
(“[T]he Supreme Judiciary should have the confidence of
the people. This will soon be lost, if they are employed in
the task of remonstrating ag[ainst] popular measures of the
Legislature”).
The later history of the New York Council of Revision
demonstrates the wisdom of the Framers’ decision. The
Council naturally became politicized through its intrusive
involvement in the legislative process. Over the course of
its existence, it returned 169 bills to the legislature; the legislature, in turn, overrode only 51 of those vetoes and reenacted at least 26 bills with modifications. Barry 245. Moreover, “[t]he Council did not shrink from tough stands on
controversial or politically charged issues.” Id., at 246. For
example, early in its existence, it vetoed a bill barring those
convicted of adultery from remarrying and one that declared Loyalists aliens. Ibid. Decades later, it very nearly
blocked the bill authorizing the Erie Canal’s construction
for policy reasons. P. Bernstein, Wedding of the Waters:
The Erie Canal and the Making of a Great Nation 197–199
(2005). Some members of the Council opposed the bill due
to “concern[s] about committing the state to this huge project before public opinion was more clearly and more emphatically in favor.” Id., at 198. Others were concerned
that the legislation gave the canal commission arbitrary
powers. Ibid. The canal legislation—one of the most important measures in the Nation’s history—survived the
Council’s review only because Chancellor James Kent
changed his deciding vote at the last minute, seemingly on
a whim. Id., at 199.
The Council contributed to its own abolition in 1820,
Cite as: 599 U. S. ____ (2023) 7
THOMAS, J., concurring
when it vetoed a bill passed by the legislature that called
for a convention to revise New York’s Constitution. 1 C.
Lincoln, The Constitutional History of New York 623–626
(1906) (Lincoln). The State Assembly then issued a report
lambasting “the Council for usurping the legislature’s role
as the democratic representative of the people”; the legislature subsequently enacted a new bill that succeeded in calling for a constitutional convention. Barry 247; Lincoln 626–
629. The same sentiment arose at the convention when,
echoing arguments that had also been made in Philadelphia
against a federal council of revision, opponents of the Council argued that it had “‘usurped the power of judging the
expediency as well as the constitutionality of bills passed by
the legislature’” and that it had “ ‘in fact become a third
branch of the legislature.’” Barry 247 (quoting N. Carter &
W. Stone, Reports of the Proceedings and Debates of the
Convention of 1821, pp. 55, 79 (1821)). Unsurprisingly, the
Council was abolished, and New York’s 1821 Constitution
placed the veto power solely in the Governor. Barry 248.
When courts apply the facial overbreadth doctrine, they
function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in
the abstract without the law ever being applied against any
individual in an unconstitutional manner. Along the way,
courts must examine the sum total of the law’s application
to people who are not parties to any proceeding; courts then
weigh the law’s various applications to determine if any unconstitutional applications outweigh the law’s constitutional sweep or might “chill” protected speech. That is nothing short of a society-wide policy determination of the sort
that legislatures perform. Yet, the Court has never even
attempted to ground this doctrine “in the text or history of
the First Amendment.” Sineneng-Smith, 590 U. S., at ___–
___ (concurring opinion) (slip op., at 2–3). Instead, it has
8 UNITED STATES v. HANSEN
THOMAS, J., concurring
justified it “solely by reference to” yet another layer of “policy considerations and value judgments” about “what serves
the public good.” Id., at ___–___ (slip op., at 3–4). As the
debate over the federal council of revision demonstrates,
this approach is fundamentally inconsistent with judicial
duty.
This case demonstrates just how far courts have drifted
from their original station of adjudicating the rights of the
parties before them in accordance with law.3 In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.
—————— 3The facial overbreadth doctrine is but one manifestation of the
Court’s larger drift away from the limited judicial station envisioned by
the Constitution. See J. Malcolm, Whatever the Judges Say It Is? The
Founders and Judicial Review, 26 J. L. & Politics 1, 36–37 (2010). Justices have long noted that doctrines tasking judges with passing upon
the policy of laws in the abstract resemble the council of revision the
Framers rejected. See, e.g., Lewis v. New Orleans, 415 U. S. 130, 136
(1974) (Blackmun, J., joined by Burger, C. J., and Rehnquist, J., dissenting) (overbreadth and vagueness doctrines); see also Trimble v. Gordon,
430 U. S. 762, 778 (1977) (Rehnquist, J., dissenting) (suspect classifications under the Fourteenth Amendment); Griswold v. Connecticut, 381
U. S. 479, 513–515 (1965) (Black, J., joined by Stewart, J., dissenting)
(substantive due process); Goldberg v. Kelly, 397 U. S. 254, 273–274
(1970) (Black, J., dissenting) (due process for welfare benefits); Saia v.
New York, 334 U. S. 558, 571 (1948) (Jackson, J., dissenting) (review of
time, place, and manner speech regulations).
Cite as: 599 U. S. ____ (2023) 1
JACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 22–179
_________________
UNITED STATES, PETITIONER v.
HELAMAN HANSEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 2023]
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins,
dissenting.
At bottom, this case is about how to interpret a statute
that prohibits “encourag[ing] or induc[ing]” a noncitizen “to
come to, enter, or reside in the United States” unlawfully.
8 U. S. C. §1324(a)(1)(A)(iv). The Court reads that broad
language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute
under our well-established First Amendment overbreadth
doctrine. But the majority departs from ordinary principles
of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements
that Congress once adopted but later removed as part of its
incremental expansion of this particular criminal law over
the last century.
It is neither our job nor our prerogative to retrofit federal
statutes in a manner patently inconsistent with Congress’s
choices. Moreover, by acquiescing to the Government’s
newly minted pitch to narrow this statute in order to save
it,1 the majority undermines the goal of the overbreadth
doctrine, which aims to keep overly broad statutes off the
—————— 1Previously, even the Government rejected the majority’s view of the
statute’s scope at trial, when it was seeking to convict the defendant. See
Part III, infra.
2 UNITED STATES v. HANSEN
JACKSON, J., dissenting
books in order to avoid chilling constitutionally protected
speech. See Dombrowski v. Pfister, 380 U. S. 479, 486–487
(1965). Because the majority’s interpretation of
§1324(a)(1)(A)(iv) diverges from the text and history of the
provision, and simultaneously subverts the speech-protective
goals of the constitutional doctrine plainly implicated here,
I respectfully dissent.
I
Section 1324(a)(1)(A)(iv) makes it a federal crime to “encourag[e] or induc[e]” a noncitizen “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.” For ease of reference, I will refer to
this as the “encouragement provision.”
Respondent Hansen argues that the encouragement provision is unconstitutional under our First Amendment overbreadth doctrine, and the Ninth Circuit below agreed. Neither the Government nor the majority disputes that
conclusion if the statute is read according to its plain terms.
And, indeed, when read literally, the encouragement provision prohibits so much protected speech that it appears to
qualify as overbroad under our precedents.
A
A statute is overbroad—and thus facially invalid—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) (internal
quotation marks omitted). The overbreadth inquiry thus
generally requires comparing the First Amendmentprotected expression that a statute impermissibly punishes, on the one hand (let’s call that “category one”), with
the unprotected speech and conduct that the statute validly
prohibits, on the other (“category two”).
Starting with category one: With respect to the sweep of
Cite as: 599 U. S. ____ (2023) 3
JACKSON, J., dissenting
the plain text of the encouragement provision, there is no
dispute that, “[i]n ordinary parlance, ‘induce’ means ‘[to]
lead on; to influence; to prevail on; to move by persuasion
or influence,’” and “‘encourage’ means to ‘inspire with courage, spirit, or hope.’” Ante, at 9. Thus, on its face, the encouragement provision’s use of the terms “encourage” and
“induce” seems to encompass any and all speech that
merely persuades, influences, or inspires a noncitizen to
come to, enter, or reside in this country in violation of law.
If speech of this nature is, in fact, sufficient to trigger potential prosecution under this statute, the provision would
put all manner of protected speech in the Government’s
prosecutorial crosshairs. It would reach, for example, the
grandmother who says she misses her noncitizen grandchild, leading the grandchild to move illegally to the United
States. It would also apply to the doctor who informs a
noncitizen patient that a necessary medical treatment is
more readily available in the United States, influencing the
patient to stay beyond the expiration of his visa to await
treatment. The college counselor who advises an undocumented student that she can obtain a private scholarship to
attend college in the United States, inspiring the student to
reside here, would also fall within the scope of the statute.
The encouragement provision, on this broad reading,
would also punish abstract advocacy of illegal conduct, even
though such speech is plainly permissible under the First
Amendment. For instance, the plain text of the statute appears to prohibit a person from saying to a noncitizen who
has no authorization to reside here, “I encourage you to live
in the United States.” But that speech is plainly protected.
See United States v. Williams, 553 U. S. 285, 298–300
(2008). In Williams, this Court explained that “abstract advocacy” of child pornography—including the phrase “I encourage you to obtain child pornography”—qualifies as protected speech, even though the “recommendation of a
4 UNITED STATES v. HANSEN
JACKSON, J., dissenting
particular piece of purported child pornography with the intent of initiating a transfer” is properly proscribed by federal statute. Ibid. (internal quotation marks omitted); see
also, e.g., Ashcroft v. Free Speech Coalition, 535 U. S. 234,
253 (2002) (“The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it”).
B
The Government does not dispute that the encouragement provision is unconstitutional as overbroad if it is read
according to its plain text, thereby reaching these various
fact patterns. This point is worth repeating: Under the
broad interpretation of the statute, the Government does
not even attempt to argue that the unconstitutional applications in category one are not “substantial,” Stevens, 559
U. S., at 473, in relation to the constitutional applications
that fall in category two.2 Rather, the Government argues
that the statute can be saved from falling victim to today’s
overbreadth challenge by construing the broad terms of the
encouragement provision narrowly—and, in particular,
reading them as authorizing prosecution only for solicitation or facilitation.
Citing this Court’s general duty “to seek harmony, not to
manufacture conflict,” when “legislation and the Constitution brush up against each other,” ante, at 16–17, the majority obliges. But this Court also has a duty to refrain from
taking the legislative reins and revising the text of a statute. It is well established that “[w]e will not rewrite a law
to conform it to constitutional requirements.” Stevens, 559
U. S., at 481 (emphasis added; alterations and internal quotation marks omitted). Accordingly, and in the overbreadth
—————— 2There is accordingly no need to dwell on the contents of category two
here. The majority discusses several examples, like “issuing fraudulent
Social Security numbers to noncitizens.” Ante, at 17 (citing Edwards v.
Prime, Inc., 602 F. 3d 1276, 1295–1297 (CA11 2010)).
Cite as: 599 U. S. ____ (2023) 5
JACKSON, J., dissenting
context in particular, the Court “may impose a limiting construction on a statute only if it is ‘readily susceptible’ to
such a construction.” Ibid. (some internal quotation marks
omitted).
Application of our ordinary principles of statutory interpretation here reveals that the encouragement provision is
not susceptible to the narrow solicitation or facilitation construction that the majority adopts, as explained below.
Thus, this statute is overbroad and facially invalid under
the First Amendment.
II
The majority contends that the encouragement provision
uses “‘encourage’” and “‘induce’” in a “specialized,
criminal-law sense,” under which those words are essentially synonymous with solicitation and facilitation and
carry certain narrowing features of those crimes. Ante, at
9. But that construction of the statute is untenable for the
reasons that follow.
A
The majority starts its interpretation of the encouragement provision “with some background on solicitation and
facilitation,” ante, at 6, instead of addressing any of the
terms in the encouragement provision itself. This is the
first clue that the majority’s statutory analysis is unusual.
Ordinarily, we start with the text of the statute being interpreted. Yet the words “solicitation” and “facilitation” appear nowhere in the encouragement provision. (As the majority notes, facilitation is “also called aiding and abetting,”
ibid.—another term that is absent from the encouragement
provision.)
The majority goes on to explain that the terms that do
appear in the encouragement provision—“encourage” and
“induce”—are also often used (with other words) to define
“solicitation” and “facilitation.” Ante, at 6–8. For example,
6 UNITED STATES v. HANSEN
JACKSON, J., dissenting
the majority notes that one legal dictionary “defines ‘abet’
as ‘[t]o encourage or set another on to commit a crime,’” and
it cites other legal dictionaries that also use “encourage” to
define “abet.” Ante, at 7. Similarly, the majority observes
that the federal “ban on soliciting a crime of violence . . .
penalizes those who ‘solici[t], comman[d], induc[e], or otherwise endeavo[r] to persuade’ another person ‘to engage in
[the unlawful] conduct.’” Ibid. Because the terms “encourage” and “induce” are used to define the crimes of solicitation and facilitation, the majority concludes that the statutory terms “‘[e]ncourage’ and ‘induce’ have well-established
legal meanings” that “incorporat[e] common-law liability
for solicitation or facilitation.” Ante, at 9.
This contention—that, because the broad terms that Congress actually used are sometimes spotted in the definition
of other, narrower words, the statute’s broad terms are limited by the meaning of those narrower words and those
words’ characteristics—is puzzling. The majority cites no
precedent for this novel approach to interpreting words in
a statute. And its logic falls apart in light of the English
lexicon and how dictionary definitions tend to work.
Broad words are often used to define narrower ones. So
the fact that a word is used to help define another word does
not necessarily mean that the former is synonymous with
the latter or incorporates all of its connotations. For instance, the word “furniture” might be used in the definition
of a “chair,” but not all pieces of furniture are chairs, nor do
all pieces of furniture have four legs or other common chairlike characteristics. Similarly, “to move” is used to define
“to walk,” “to run,” and “to fly.” But that does not make
these four terms interchangeable.
So, too, here. The phrase “encourages or induces” is not
synonymous with “solicits” or “facilitates” (or “aids and
abets”). For example, among the other characteristics of solicitation and facilitation (discussed further in Part II–C,
infra) is the fact that they require “an intent to bring about
Cite as: 599 U. S. ____ (2023) 7
JACKSON, J., dissenting
a particular unlawful act,” ante, at 6 (emphasis added). But
the encouragement provision hints at no such thing. It
simply prohibits “encourag[ing] or induc[ing]” a noncitizen
“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.”
§1324(a)(1)(A)(iv). Nor does the ordinary meaning of “encourages or induces” carry the intent requirement that solicitation and facilitation do: By describing the attractions
of my hometown, for instance, I might end up inducing a
listener to move there, even if that was not my intent.
It is also telling that the very next subdivision of
§1324(a)(1)(A) expressly prohibits “aid[ing] or abet[ting]
the commission of any of the preceding acts.”
§1324(a)(1)(A)(v)(II). That provision indicates that Congress knows how to create an aiding-and-abetting prohibition when it wants to—and that it did not do so in
§1324(a)(1)(A)(iv).3
The majority’s mere observation that the encouragement
provision’s terms are used to define solicitation and facilitation is thus insufficient to establish that the terms mean
the same thing or incorporate the same features.
B
The majority next turns to “[s]tatutory history” to support its transformation of the broad encouragement provision that Congress wrote into a narrow solicitation or
aiding-and-abetting prohibition. Ante, at 11. I agree that
the history of a statute can reveal Congress’s intent to use
terms in a narrower or specialized manner. But, here
—————— 3This is not a surplusage argument. Cf. ante, at 15, n. 2. I agree with
the majority that clause (iv) and clause (v)(II) have different aims. My
point, instead, is that Congress’s failure to use the classic “aids or abets”
language in clause (iv), which it deploys just next door in clause (v)(II),
should give us pause before concluding that we can read clause (iv) as if
it included the same terms.
8 UNITED STATES v. HANSEN
JACKSON, J., dissenting
again, the particulars matter. And the history of this particular statute only underscores that it cannot be read as
the majority wishes. At every turn, Congress has sought to
expand the reach of this criminal law, including by deleting
the terms and mens rea requirement that the majority attempts to read back into the statute.
1
The history of the encouragement provision is a tale of
expansion. Up first was an 1885 law focused specifically on
contract labor. Ch. 164, 23 Stat. 332. It made “knowingly
assisting, encouraging or soliciting the migration or importation of” a noncitizen into the United States “to perform
labor or service of any kind under contract or agreement”
unlawful. §3, id., at 333. Congress revised this prohibition
in 1917, to add “induce.” §5, 39 Stat. 879. Thus, as of the
early 20th century, it was a misdemeanor “to induce, assist,
encourage, or solicit . . . the importation or migration of any
contract laborer,” or to attempt to do the same. Ibid.
Significantly for present purposes, in 1952, Congress deleted the statute’s references to solicitation and assistance—leaving “encourages” and “induces” to stand alone.
66 Stat. 229. What is more, Congress expanded the prohibition to all unlawful entry, not merely contract labor. Ibid.
And it also ratcheted up the punishment. Ibid. So
amended, the statute made it a felony to “willfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or
induce, either directly or indirectly, the entry into the
United States” of any noncitizen who had not been “duly
admitted” or who was not “lawfully entitled to enter or reside within the United States.” Ibid.
Congress enacted the current version of the encouragement provision in 1986. It removed the mens rea requirement relating to the encouragement or inducement element—excising from the statute that a violator must
“willfully or knowingly” encourage or induce a noncitizen to
Cite as: 599 U. S. ____ (2023) 9
JACKSON, J., dissenting
violate the immigration laws—while inserting a mens rea
requirement for knowledge or reckless disregard of the
noncitizen’s immigration status. See Immigration Reform
and Control Act of 1986, §112(a), 100 Stat. 3381–3382. Simultaneously, and for the first time, Congress made it a crime
to encourage or induce an unauthorized noncitizen not
merely to enter the United States, but also to encourage or
induce such a person to “reside” here unlawfully. Ibid.
Finally, in 1996, Congress crafted a separate penalty enhancement for certain kinds of violations. It raised the
maximum punishment from 5 years to 10 years of imprisonment if the offender violates the encouragement provision “for the purpose of commercial advantage or private
financial gain.” §1324(a)(1)(B)(i); see Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, §203(a),
110 Stat. 3009–565.
As these developments illustrate, Congress has repeatedly revisited the scope of the encouragement provision.
And, in so doing, it has consistently expanded the reach and
severity of this criminal law from its modest 1885 origins.
Most notably, the particular amendments that Congress
has made to the encouragement provision demonstrate its
intent to specifically reject the pillars of the majority’s holding.
To reiterate: The terms “solicit” and “assist” appeared in
the text of the statute between 1885 and 1952, at which
point Congress removed them. Likewise, between 1952 and
1986, violating this statute required that the speaker “willfully or knowingly” encourage or induce a noncitizen to
transgress the immigration laws. But in 1986, Congress
deleted this primary mens rea requirement.
2
The majority’s efforts to spin the encouragement provision’s enlightening enactment history in favor of the majority’s narrow interpretation are unavailing.
10 UNITED STATES v. HANSEN
JACKSON, J., dissenting
The majority first points out that the 1885 version of the
encouragement provision criminalized “knowingly assisting, encouraging or soliciting” certain immigration. §3, 23
Stat. 333 (emphasis added); see ante, at 11. Because the
term “encouraging” was placed alongside “assisting” and
“soliciting” in this precursor provision, the majority maintains that the term “encouraging” is narrowed by the canon
of noscitur a sociis, “which counsels that a word is given
more precise content by the neighboring words with which
it is associated.” Williams, 553 U. S., at 294; see ante, at
11. In Williams, the Court (in an opinion by Justice Scalia)
reasoned that, “[w]hen taken in isolation,” the broad term
“‘promotes’” is “susceptible of multiple and wideranging meanings,” but that, “in a list that includes ‘solicits,’ ‘distributes,’ and ‘advertises,’ [it] is most sensibly read
to mean the act of recommending purported child pornography to another person for his acquisition.” 553 U. S., at
294–295.
But, as the majority here ultimately goes on to
acknowledge, ante, at 12, the statutory word “encouraging”
was not actually accompanied by the narrower terms “soliciting” and “assisting” throughout the course of this statute’s
history. And for the history to be meaningfully referenced,
the state of the statute must be considered over time, not
just at particular points in which words that seem to support a particular reading might have appeared. The delta
between the purportedly narrow version of the statute that
the majority points to, and what later happened to the statutory text, is important—and there is no dispute that Congress later removed the terms “soliciting” and “assisting”
from the encouragement provision, leaving “encouraging”
and “inducing” to stand “in isolation,” 553 U. S., at 294. See
ante, at 13. Tracing the history over time clearly establishes that Congress deleted the very narrowing terms that
Cite as: 599 U. S. ____ (2023) 11
JACKSON, J., dissenting
the majority now reads back into the statute.4
The majority brushes off Congress’s revision by speculating that Congress was merely “engaged in a cleanup project” and was just “streamlin[ing]” the statutory language.
Ibid. This contention, however, gets our ordinary presumption in statutory interpretation cases precisely backwards. We “usually presume differences in language . . .
convey differences in meaning,” absent some indication
from Congress to the contrary. BNSF R. Co. v. Loos, 586
U. S. ___, ___ (2019) (slip op., at 10) (internal quotation
marks omitted). Thus, we have found the presumption
overcome where, for example, Congress has expressly
“billed” the changes as “effect[ing] only ‘[t]echnical [a]mendments.’” Id., at ___ (slip op., at 9).
Here, the majority points to no signal from Congress that
it sought to change the encouragement provision’s language
without changing its meaning. It seems that the only support the majority can muster for its “cleanup project” theory
is a 1947 Supreme Court case that at several points refers
to the statute as a prohibition on “encourag[ing]” or “induc[ing]” certain unlawful immigration. Ante, at 13 (citing
United States v. Lem Hoy, 330 U. S. 724 (1947)). From this,
the majority infers that, when Congress amended the encouragement provision five years later to remove the words
“solicit” and “assist,” it must have been adopting Lem Hoy’s
shorthand characterization of the statute. But the majority
—————— 4This revealing revision also sets apart the encouragement provision’s
unadorned use of “encourages” and “induces” from the majority’s long list
of state solicitation and facilitation laws. Ante, at 8. The majority includes that list in its effort to demonstrate that “encourages” and “induces” in the encouragement provision actually mean “solicits” or “aids
and abets.” But in the vast majority of the cited statutes, classic narrowing terms—like “aided,” “abetted,” “solicits,” “commands,” “hires,” “coerces,” or “compels”—appear alongside “encourages” or “induces.” Ibid.;
see App. to Brief for State of Montana et al. as Amici Curiae 1–44. Thus,
unlike the one before us, such statutes might well be susceptible of a
narrower reading.
12 UNITED STATES v. HANSEN
JACKSON, J., dissenting
fails to support this connection—tenuous on its face—with
any evidence that Congress actually consulted our 1947 decision when it drafted the 1952 amendments, or anything
else that might establish the primary significance that the
majority ascribes to our decision’s phrasing.
The majority similarly characterizes Congress’s decision
to remove the intent requirement from the statute in 1986
as “a further effort to streamline” the encouragement provision. Ante, at 16. In other words, the Court today holds
that Congress’s removal of “willfully or knowingly” in the
1986 amendments did not change the mens rea required to
violate this statute. But the majority offers no support at
all for its view that Congress didn’t really mean for the
amendment to effect any substantive change. Instead, it
conjures up its own “simple explanation”: There was “no
need” for an explicit mens rea because “encourage” and “induce” carry the mens rea associated with solicitation and
facilitation. Ante, at 15; see also ante, at 14 (reasoning that
Congress’s use of “encourages” and “induces” brought along
the “old soil” of “the traditional intent associated with solicitation and facilitation” (internal quotation marks omitted)). Of course, this argument merely assumes that Congress intended for “encourage” and “induce” as they appear
in the encouragement provision to mean “solicit” and “facilitate”; it is a repackaging of the majority’s unwarranted
conflation of those terms. See Part II–A, supra.
The majority also invokes the presumption that a criminal law contains an intent requirement even where Congress does not explicitly include one. Ante, at 15–16. But,
here, the statutory history undermines that presumption.
Congress most certainly focused on the mens rea question
because it not only decided to remove “willfully or knowingly” from the statute, it did so while inserting a separate
mens rea requirement for the knowledge of the noncitizen’s
immigration status. The confluence of these choices implies
Cite as: 599 U. S. ____ (2023) 13
JACKSON, J., dissenting
that Congress’s removal of the primary mens rea requirement was deliberate. And, when this deliberate choice is
considered alongside the history of the provision’s significant expansions, there is ample cause to think that Congress intended a substantive change in meaning.
C
Other features of the encouragement provision (beyond
its plain text and historical development) also suggest that
Congress did not mean for the statute to be construed in
accordance with established characteristics of solicitation
or aiding and abetting. These features further highlight
the poor fit between this statute and the narrow solicitation/aiding-and-abetting box into which the majority tries
to squeeze Congress’s broad language.
Recall that, in 1986, Congress made it a crime to encourage or induce a noncitizen not just to “come to” or “enter”
the United States, but also to “reside” in this country. 100
Stat. 3382; supra, at 8–9.5 As the majority notes, while it
is a crime for a noncitizen to enter the United States illegally, it is generally not a crime—just a civil violation—to
remain in the United States without lawful status, such as
when a noncitizen overstays a visitor or student visa. See
Arizona v. United States, 567 U. S. 387, 407 (2012); see
ante, at 19. Thus, the encouragement provision on its face
—————— 5As a side note: Congress’s addition of “reside” might seem to sweep in
speakers who encouraged or induced noncitizens “who were already unlawfully present in the U. S. to continue that unlawful presence.” 40
F. 4th 1049, 1073, n. 1 (CA9 2022) (Collins, J., dissenting from denial of
reh’g en banc). But as Judge Collins explained, the provision is “most
naturally read” to reach only “those who encourage or induce particular
[noncitizens] to acquire an unlawful presence or residence that they do
not already have.” Ibid. After all, “[o]ne does not normally speak of ‘inducing’ another to do what he or she is already doing.” Ibid. And the
principle of noscitur a sociis counsels in favor of such an understanding,
given that “the first two listed verbs (‘come to’ and ‘enter’) plainly refer
to such an acquisition.” Ibid.
14 UNITED STATES v. HANSEN
JACKSON, J., dissenting
appears to criminally punish someone who merely encourages or induces a civil violation.6
That feature of the provision does not sit easily with its
categorization as a solicitation or facilitation statute, because, ordinarily, a person may only be held criminally liable for aiding and abetting or solicitation when the underlying offense is itself a crime. Aiding-and-abetting liability
is “a centuries-old view of culpability: that a person may be
responsible for a crime he has not personally carried out if
he helps another to complete its commission.” Rosemond v.
United States, 572 U. S. 65, 70 (2014) (citing J. Hawley &
M. McGregor, Criminal Law 81 (1899)); see also 18 U. S. C.
§2(a) (the general federal aiding-and-abetting statute,
providing that someone who “aids, abets, counsels, commands, induces or procures” the commission of a federal
crime “is punishable as a principal”). As for solicitation, at
common law, the solicited offense had to be a felony or a
serious misdemeanor; otherwise, “the solicitor [was] guilty
of no offense.” 1 J. Ohlin, Wharton’s Criminal Law §9:2
(16th ed. 2021) (Wharton’s). Today, “in some jurisdictions,
the offense solicited may be a felony or a misdemeanor; but
in others, it can only be a felony”—either way, though, the
underlying offense must be criminal. Ibid. (footnotes omitted); see also 18 U. S. C. §373 (the general federal solicitation statute, which is limited to the solicitation of violent
felonies).
Here, by contrast, the encouragement provision on its
face appears to permit a person to be punished as a felon
for merely encouraging a civil violation. Thus, the statute
—————— 6Hansen takes issue with this feature of the statute, arguing that the
“‘speech integral to criminal conduct’ exception” to the First Amendment’s protection of free speech “does not permit the criminal punishment of speech encouraging only a civil law violation.” Brief for Respondent 39. The majority declines to address this argument, leaving it
available in future as-applied challenges to this and other statutes. Ante,
at 19, n. 5, 20.
Cite as: 599 U. S. ____ (2023) 15
JACKSON, J., dissenting
is not an easy fit for the solicitation and facilitation role in
which the majority has cast it.
This statute is fundamentally different from aiding-andabetting liability and solicitation in other ways as well. As
noted, aiding-and-abetting liability is a form of vicarious liability—i.e., a way in which a person becomes liable for the
crimes of the principal. Likewise, for solicitation, “the punishment . . . is usually geared to . . . the punishment provided for the offense solicited.” Wharton’s §9:11; see, e.g.,
18 U. S. C. §373(a) (providing, for example, punishment of
“not more than one-half the maximum term of imprisonment . . . of the crime solicited”). But, notably, a person who
violates the encouragement provision is not punished as if
he were a principal of the underlying offense, nor does the
prescribed punishment depend on the penalty for the underlying offense. So, for example, even if the underlying
immigration offense is a civil violation, the person who encourages or induces that infraction could be punished by up
to 10 years’ imprisonment for violating the encouragement
provision. Unlike solicitation and facilitation, then, punishment for violation of the encouragement provision is not
tied in any way to the punishment prescribed for the underlying offense.
It is also telling that aiding-and-abetting liability (but not
solicitation) requires that the principal actually commit the
underlying offense. 2 W. LaFave, Substantive Criminal
Law §13.3(c) (3d ed. 2018) (“[T]he guilt of the principal must
be established at the trial of the accomplice as a part of the
proof on the charge against the accomplice”). Yet, the encouragement provision on its face does not require that a
noncitizen actually enter or reside in the United States.
* * *
For these reasons, none of the traditional tools of statutory interpretation makes the encouragement provision
16 UNITED STATES v. HANSEN
JACKSON, J., dissenting
readily susceptible to the majority’s narrowing construction.
III
The majority nevertheless revises the statute, leaning on
the canon of constitutional avoidance. Ante, at 16–17.7 But
that canon “comes into play only when, after the application
of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12) (internal quotation marks omitted). It does not give the Court license “to
rewrite a statute as it pleases.” Id., at ___ (slip op., at 14).
And, here, for the reasons explained above, it is clear that
the majority has mounted “a serious invasion of the legislative domain.” Stevens, 559 U. S., at 481 (internal quotation
marks omitted). The majority’s rescue mission is especially
problematic because it is taking place in the context of a
First Amendment challenge to a statute on overbreadth
grounds, as explained below.
A
Overbreadth challenges are an “exception to the usual
rules governing standing,” a variation the Court has long
permitted in recognition of the “danger of tolerating, in the
area of First Amendment freedoms, the existence of a penal
statute susceptible of sweeping and improper application.”
Dombrowski, 380 U. S., at 486–487 (internal quotation
marks omitted). Absent overbreadth doctrine, “the contours of regulation[s]” that impinge on the freedom of
speech “would have to be hammered out case by case—and
—————— 7The majority implies that constitutional avoidance is a backup argument. Ante, at 16 (suggesting that its reading of the statute is the “best
one”). But, in my view, the text and history of the encouragement provision make it hard to get even close to the majority’s narrow reading without substantial reliance on the constitutional-avoidance principle.
Cite as: 599 U. S. ____ (2023) 17
JACKSON, J., dissenting
tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Id., at
487. We thus allow defendants whose speech is constitutionally proscribed by a statute (like Hansen) to argue that
the statute is nevertheless facially invalid under the First
Amendment on the grounds that “a substantial number of
its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.” Stevens, 559 U. S.,
at 473 (internal quotation marks omitted). By permitting
this kind of challenge, the Court has “avoided making vindication of freedom of expression await the outcome of protracted litigation.” Dombrowski, 380 U. S., at 487.
If this Court is willing to redline Congress’s work to save
it from unconstitutionality, it “sharply diminish[es] Congress’s incentive to draft a narrowly tailored law in the first
place,” Stevens, 559 U. S., at 481 (internal quotation marks
omitted), which runs directly counter to overbreadth’s goal
of limiting criminal laws that chill constitutionally protected speech. Thus, in the particular context of an overbreadth challenge, countervailing constitutional concerns—namely, that constitutionally protected speech will
be chilled—must be considered alongside the values that
underpin our ordinary canon of constitutional avoidance.
Heavy reliance on constitutional avoidance where statutes would otherwise be facially overbroad also means that
the broad language in the particular statute remains on the
books—as compared to the alternative world, in which the
Court holds the statute unconstitutional as facially overbroad and thereby prompts the enactment of a narrower replacement. Ordinary people confronted with the encouragement provision, for instance, will see only its broad,
speech-chilling language. Even if they do consult this
Court’s decision, and do recognize that it substantially narrows the statute’s scope, the Court’s decision leaves many
things about future potential prosecutions up in the air.
18 UNITED STATES v. HANSEN
JACKSON, J., dissenting
For example, one does not know from today’s determination whether a noncitizen must actually complete the underlying offense of coming to, entering, or residing in the
United States (à la aiding and abetting) or whether completion is not a prerequisite for prosecution (à la solicitation).
This sort of uncertainty—the clarification of which, by the
way, should be Congress’s policy prerogative—may itself
dissuade people from engaging in protected speech.8 Thus,
regardless of whether a potential speaker has the ability,
means, and time to track down and interpret this decision
(or hire a lawyer to do so) to understand what the law requires, the known unknowns of the majority’s course portend further chill.
B
The majority attempts to downplay the encouragement
provision’s threat to free expression by highlighting that
Hansen “fails to identify a single prosecution for ostensibly
protected expression in the 70 years since Congress enacted
clause (iv)’s immediate predecessor.” Ante, at 17–18. But
the purported lack of past prosecutions provides no comfort
for several reasons.
The first is that we have already said as much—this
Court squarely rejected that kind of argument when the
Government raised it in a prior overbreadth challenge. In
Stevens, the Government vigorously asserted that it had
never brought a prosecution implicating the kind of protected expression that the plain text of the statute in question swept in, and that it did not intend to do so. 559 U. S.,
at 480. The Government “hi[t] this theme hard, invoking
—————— 8The Government also struggled at oral argument before this Court to
articulate what scenarios the statute would (and would not) reach under
its theory. But it notably represented that it did not believe it could validly prosecute a son who reassures his noncitizen mother (who lives unlawfully in the United States with him and his family) that she is not a
burden on them and that his children love having their grandmother
around. See Tr. of Oral Arg. 35.
Cite as: 599 U. S. ____ (2023) 19
JACKSON, J., dissenting
its prosecutorial discretion several times.” Ibid. But we
were not moved: Such a prosecution was permitted by the
statute, we noted, and that was enough to make it a serious
threat. “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse
oblige.” Ibid.
Second, just as in Stevens, “[t]his prosecution is itself evidence of the danger in putting faith in Government representations of prosecutorial restraint.” Ibid. At trial in this
very case, the Government objected to Hansen’s proposed
jury instructions, which would have required, among other
things, that the Government prove that Hansen intended
the noncitizen in question to reside in the United States illegally. The Government’s objection was telling. It was
based on the argument that the proposed instructions
added elements not found in the text of the statute itself.
And the District Court was persuaded; it sided with the
Government in that regard.9 But now that the statute’s validity hangs in the balance, the Government has reversed
course entirely—it now implores us to read into the statute
the very element that it earlier opposed as atextual. See
Brief for United States 23–28.
This debacle exemplifies the real and ever-present risk of
continuing to have facially overbroad criminal statutes on
the books. In its role as prosecutor, the Government often
stakes out a maximalist position, only later to concede limits when the statute upon which it relies might be struck
down entirely and the Government finds itself on its back
foot.10 I am not suggesting bad faith on anyone’s part; these
—————— 9As the Government conceded during oral argument before this Court,
given that its elements argument prevailed below, the instructions that
the District Court gave to the jury in this case were legally erroneous.
See Tr. of Oral Arg. 11; see also id., at 39–40 (acknowledging that the
Court “should send the case back to the Ninth Circuit and let the Ninth
Circuit decide what’s appropriate in light of” the flawed instructions). 10The Court has seen similar moves in multiple cases just this Term.
20 UNITED STATES v. HANSEN
JACKSON, J., dissenting
kinds of turnabouts might well be chalked up to institutional incentives and coordination challenges in a massive
prosecutorial system. But given these dynamics, the answer to whether the Government has, as of today, prosecuted Hansen’s hypothetical scenarios may understandably
provide cold comfort to those living and working with immigrants.
In any event, it makes little sense for the number of unconstitutional prosecutions to be the litmus test for whether
speech is being chilled by a facially overbroad statute. The
number of people who have not exercised their right to
speak out of fear of prosecution is, quite frankly, unknowable.
Moreover, criminal prosecutions are not the only method
by which statutes can be wielded to chill free speech. Hansen’s amici detail how Customs and Border Protection
(CBP) relied on the encouragement provision to justify its
creation of a “watchlist” of potential speakers that CBP had
compiled in connection with its monitoring of a large group
of migrants—a list that included journalists simply reporting factual information about the group’s progress. Brief
for Reporters Committee for Freedom of the Press as Amicus Curiae 5–6. CBP allegedly compiled dossiers on those
reporters and singled them out as targets for special screenings. Ibid. There can be no doubt that this kind of Government surveillance—targeted at journalists reporting on an
important topic of public concern, no less—tends to chill
speech, even though it falls short of an actual prosecution.
Hansen’s amici also describe how a group of Members of
Congress recently sent a letter to three religious organizations that help undocumented immigrants, directing the or-
——————
See Ciminelli v. United States, 598 U. S. 306, 316–317 (2023); Percoco v.
United States, 598 U. S. 319, 332–333 (2023); Dubin v. United States, 599
U. S. ___, ___–___ (2023) (slip op., at 2–3).
Cite as: 599 U. S. ____ (2023) 21
JACKSON, J., dissenting
ganizations to preserve documents and communications related to their work in advance of a potential congressional
investigation into whether such organizations are “‘harbor[ing], transport[ing], and encourag[ing]’” noncitizens to
settle unlawfully in this country. Brief for Religious Organizations as Amici Curiae 34 (emphasis added). Again, this
kind of letter invoking the language of the encouragement
provision can plainly chill speech, even though it is not a
prosecution (and, for that matter, even if a formal investigation never materializes).
The majority nevertheless derides the fears of Hansen
and his amici as an overimaginative “parad[e]” of “horribles.” Ante, at 18. But what may seem “fanciful” to this
Court at great remove, ante, at 5, might well prove to be a
significant obstacle for those on the ground who operate
daily in the shadow of the law. The “gravity” of the encouragement provision’s chilling effect is “underscored by the
filings of . . . amici curiae in support of” Hansen—including
briefs from lawyers, immigration advocacy organizations,
religious and other charitable organizations, journalists, local governments, and nonprofit policy institutions from
across the ideological spectrum. Americans for Prosperity
Foundation v. Bonta, 594 U. S. ___, ___ (2021) (slip op., at
17).
The substantial concerns that amici from such diverse
walks of life raise illustrate that the “deterrent effect feared
by” Hansen and his amici “is real and pervasive.” Id., at
___ (slip op., at 18). Moreover, at the end of the day, those
fears reflect a determination to view enacted statutes as serious business, and, essentially, to take Congress at its
word. This Court should have done the same.
As written, the encouragement provision is overbroad.
Therefore, it should have been deemed facially unconstitutional and invalid under the First Amendment, as the
Ninth Circuit held.