On June 23, 2023, the United States Supreme Court decided the case of U.S. v. Helaman Hansen. The principal issue before the Court concerned the constitutionality of a statute concerning the inducement of an alien to unlawfully enter the United States.
Justice Barrett wrote for the 7-2 majority in relevant part: 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 “encouraging or inducing 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 over breadth grounds. The District Court rejected Hansen’s argument, but the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad.
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. 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.
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 as those terms are used in ordinary conversation (thus encompassing a broader swath). Criminal solicitation is the intentional encouragement of an un lawful 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.
Facilitation and solicitation are both addressed by New Jersey’s “Attempt” statute. Purposeful conduct is required to prove a criminal attempt even though a lesser mind state is required for commission of the underlying offense.
