As you probably know, SCOTUS has released numerous decisions this week. I read but generally don't summarize them. I'm making an exception for United States v. Hansen, 599 U.S. ___ (2023), because it specifically overrules Ninth Circuit precedent.
You may recall that, in Hansen, the Ninth held that 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 -- was unconstitutional under the First Amendment.
The Supreme Court reversed, holding: "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.'"
The issue is 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).
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 cluster of ideas that were attached to each borrowed word.”
