Courthouse Steps Oral Argument: United States v. Hansen

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Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, March 27, 2023, we host a Post-Oral Argument Courthouse Steps on the United States v. Hansen, which was argued earlier today before the Court. My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program, as The Federalist Society takes no position on particular legal or public policy issues.

Now, in the interest of time, I'll keep my introduction of our speaker quite brief, but if you'd like to know more about him, you can access his full impressive bio at fedsoc.org. Today, we are fortunate to have with us Brian Fish. Mr. Fish is a member of The Federalist Society's Criminal Law & Procedure Practice Group Executive Committee and is the President of the Baltimore Lawyers Chapter.

Now, as a last note before I hand it off, throughout the panel, if you have any questions, please submit them via the Question and Answer feature that you can find at the bottom of your Zoom screen. We'll get to questions later in the webinar. With that, thank you all for being with us today. Mr. Fish, the floor is yours.

Brian Fish:  Well, thank you very much, Chayila. Greetings, Federalists nationwide, coast to coast. This is yet another in my world of "crimmigration" cases, and this is part two of what we had from three years ago. And essentially, the issue before the Court is, is this simply a criminal case—the wolf, if you will, wrapped in the sheep's clothing of a First Amendment defense—or is it the other way around? Are we trampling upon the First Amendment free expression rights of people across our fair country by the chill that is embedded in 1324?

Those are the two sides of this case. And what I mean by this is round two is this case, United States v. Hansen, which was argued this morning, cannot in any way be separated from a case that we had almost word for word, except for the names, the same in the United States v. Sinening-Smith, which the Court heard three years ago and kicked back to -- of course, it's the Ninth Circuit, our friends and those who want to be slapped down most, it seems, our friends on the West Coast.

The Sinening-Smith case is almost word for word the same as what we have here, and what I'm hoping the Court does in a couple of months when they release the decision in this case is that they actually make a decision on the overbreadth challenge to 8 United States 1324. Does that statute chill speech?

So before we get too much into the weeds, I'll give you a little procedural history of the two cases and how they are so intertwined. Sinening-Smith, that case came up about four years ago through the district court and the circuit court in the Ninth Circuit to the Supreme Court. The issue that the Court remanded back to the Ninth was, the Ninth Circuit wanted the parties to argue an overbreadth challenge to the statute.

Neither party—certainly not the government and not us, the counsel for Sinening-Smith—made absolutely no reference in either the district court or the initial briefing stage of that appeal because, obviously, Sinening-Smith lost on his multiple counts, including—and especially for today's purposes—his 1324 case. And we'll get to what it all means in a minute, but the procedural history is crucially important to today's case.

So the Ninth Circuit, what they did for oral arguments was, because nobody was talking about overbreadth and they wanted to talk about overbreadth, they asked, on their own, for amici to, obviously, write briefs about why they believe the 1324 statute is overly broad, it chills speech, and therefore it should be found unconstitutional.

Again, the parties were not arguing about that; the Court wanted to argue about that. They then got the briefs that they wanted, had oral arguments, and overturned Sinening-Smith's convictions on multiple counts of 1324. The government appealed to the Supreme Court. Cert was granted. Oral arguments were held.

And, ironically enough, in a nine-month indecision, authored by Justice Ginsburg, one of her last decisions, the case was remanded, having not spoken about overbreadth at all, but simply on the procedural ground that the Ninth Circuit was, even by Ninth Circuit standards, well out of their lane in asking for briefs on something that wasn't being argued.

In other words, the case in controversy was made up by the Ninth Circuit. That whole plan got essentially smacked down and remanded back to the Court. The Court had something in their back pocket: this case. This case, United States v. Hansen, was tried at the same time Sinening was at the Ninth Circuit, so we didn't have a little more robust discussion of these issues during the run-up to the Hansen case.

Hansen, the same thing: 1324 issues. He lost. He appealed. And when Sinening-Smith was granted cert, the Ninth Circuit stopped the appeal, essentially put it on hold, put it in their back pocket, and waited. The Supreme Court, as I just mentioned, slapped their idea of making up the overbreadth argument, slapped that down and remand it.

What irritates me about that whole scenario is, at that point, the Ninth Circuit affirmed the conviction. They didn't really address anything that the Supreme Court was talking about in their remand; they just affirmed it. And that was it because they knew they were going to pull out this case, which is exactly what they did. They reopened the appeal.

Now, everybody, especially Hansen's attorneys, knew that what the Ninth Circuit wanted to hear about was overbreadth. So then we have page after page after page of overbreadth arguments at the Ninth Circuit, which of course, the Ninth Circuit, in a panel decision, affirmed their own take on this, therefore overturning the conviction of Hansen.

What gets interesting, then, is the en banc request by the government is denied. And quite possibly on point, if you will, Judge Bumatay of the Ninth Circuit writes a dissenting opinion on the denial of the en banc, which is essentially the government's petition on cert to the Supreme Court almost word for word. And Judge Bumatay's request to actually have an en banc was joined by eight other justices, so this was not a one-off. Essentially, half the Court wanted to hear the entirety of the case but were denied. So it was a panel decision that goes up to the Supreme Court, and that's what we have today.

So let's get into a little bit more about what the factual history of this case is, and then we'll get to what happened today. Now, nobody in today's oral arguments had any sympathy for Hansen whatsoever. This was strictly a legal discussion. There was no, "Woe is the defendant. He didn't know," etc., etc., approach, certainly from the government, and even by Hansen's own attorneys on his behalf, so to speak.

What Hansen did is he made about two million bucks completely and totally fraudulently. There wasn't a dime that he made out of this scenario that was honestly made. What he did was he got several people -- and two of them were the named victims in the case, and we'll get to that in a little bit. But he got people to stay in the United States illegally, and why he told them to stay here illegally was that he told them he could get them a green card by adult adoption.

What he sold these folks was the idea that, "If you stayed -- And yeah, you're going to stay past the expiration of your visa, or if you came in illegally to begin with, just stay here. I will help you do the paperwork; I will get people essentially to adopt you, even though you are 21, footloose, and fancy-free; and that process will lead you to getting a green card."

Now, of the many problems with that idea, the most basic problem is, it can't happen. It can never happen. It will never happen under the current law. It's one of those -- If adult adoption were possible, then everybody would do it. And what everybody does these days is continue to have marriage fraud, but that's another issue. So you can never get a green card from this adult adoption scenario that Hansen was selling folks to the tune of, in some cases, hundreds, if not thousands of dollars a shot.

Again, he made almost $2 million out of this, so there was not just a one- or two-off victim; there were multiple victims. And so, preparing for today, I thought of the one line from Casablanca when Rick and Ugarte are talking, and Rick goes, "Well, yeah, you can get them for a price, Ugarte," them being exit visas to get out of Casablanca, for a price. Ugarte comes back and says, "But think of the poor devils who can't afford Renault's price. I get it for them for half."

Well, what we have today is Hansen getting entry visas for double what the Department of Homeland Security might charge—probably more—but there is no exit visa, and there is no entry visa in today's case. It's totally fraud, totally made up.

So again, no one had any sympathy for Hansen. The defense's main argument today on this line is, "Well, we have no sympathy for him. We're talking two counts of his multi-count indictment that he got convicted for. He's staying in jail for a long time. So can we move past Mr. Hansen and get to what we really want to talk about—because the Ninth Circuit told us we wanted to talk about it—which is overbreadth?"

And that's my main problem with the procedural history of this case. As lawyers, we certainly want to stylize cases sometimes to get to the Supreme Court. Sometimes, as the actual litigants, we say to ourselves and to anybody who'll listen, "I'm going to argue this case in the Supreme Court." You know what? That's fine. As lawyers or litigants, you want to get your case to the level where you think you can win. And if you don't think you can win the case until you get to the Supreme Court, then have at.

The problem that I have is the courts shouldn't be doing that. The Ninth Circuit should not be stylizing cases—in one sense, the Sinening-Smith case, and another case, holding in their back pocket to see what the Supreme Court does—with their own stylized arguments of whether this statute 1324 is overbroad or not.

So that's the setup. What's the statute say? Title 9 United States Code Section 1324 -- And we'll get down to the little i’s and little iv’s, etc., etc. What we're fighting about is the following: Did the defendant—Hansen or Sinening-Smith or God knows who else—encourage or induce an alien—or as we now say, a noncitizen—to come in, remain, or reside in the United States, knowing or in reckless disregard of the fact that such remaining or entry or residence is in violation of the law?

That's the first half. The second half is, Hansen was convicted not only of that, but of another subsection—or, as you might say, an enhanced subsection—that he, in fact, did that for financial gain; again, the two million bucks, or nearly two million bucks that he got out of this scheme.

Both sides make a lot of hay, especially in briefs—not so much today—about whether those are two distinct crimes, one crime with an enhancement penalty clause to it. They get into the weeds about that. I'm not sure that's necessary or even relevant, but it certainly happens.

So, in briefing, the government's main point is, look, the Constitution gives Congress the power. Nobody else has any power to enact laws that regulate immigration and naturalization. And therefore, on its face, the section I just read, Section 1324 and its little iv, is facially valid because Congress has the authority to write such laws, and the end, if you will.

But, obviously, the government goes on. Because what do lawyers do? They write and talk. So what fascinates me about this particular case, and many others, is this case has literally split my executive committee. We have, on one side, Mark Brnovich, who wrote as the attorney general for Arizona. They wrote a brief in support of the government.

Mark's main point in the brief is the kind of language that I just read to you about 1324 is in literally dozens and dozens of state codes, and Arizona had about half the attorney generals in the country sign off on their brief. We use terms like induce and entice all the time, specifically when they're talking about solicitation for prostitution, those kinds of crimes. They use this terminology literally all the time. Every state in the union has laws that use these terms. They have a particular meaning in criminal law, and that meaning should be applied to this case.

On the other side, and in my group, is Clark Neily. Clark works for Cato, and they, Clark, wrote a brief for the defendant in this particular case. What Clark is essentially saying is, "Look, the First Amendment here is completely and utterly chilled just by the mere thoughts of, could the government go after me for thinking that I should help someone?"

And we'll get to those kinds of issues in a bit. Clark specifically points out, say a YouTuber -- So a YouTuber on his YouTube channel will say something like, "Aliens should come to the United States and stay." The YouTuber would get lots of hits for that, therefore make lots of money. Is that for financial gain, his encouragement for, again, noncitizens to come into the United States or remain in the United States? Is that going to be chilled if the Supreme Court rules in favor of the government and their position on the overbreadth statute?

Well, my point of bringing that up is, look, The Federalist Society has been taking a lot of hits recently. One is for, as you heard at the beginning, we don't take any position on anything, but members certainly have positions on all sorts of issues, and quite frankly, all the issues that come before the society that we live in.

But the great thing about The Federalist Society is we don't agree with each other. And this is a classic case in point where people in the same executive committee are writing amicus briefs to the United States Supreme Court and taking opposite views on the same case. You don't get that anywhere else except for The Federalist Society.

The other side, if you will, rarely, if ever, engages us on these issues. We have more fun fighting amongst ourselves because, essentially, no one else well. So I just throw that out to you as -- It's a classic case of the conservative pro-government, pro-law enforcement take on a particular statute versus a libertarian, if you will, live and let live mindset that Clark and the Cato Institute espouse.

And I think that's great for not only for Society, but the society in general, our country. Our country needs more of those kinds of spirited, intellectual, and polite, if you will, debates. We should ask Judge Duncan what he thinks about that, but again, that's probably another Federalist Society Teleforum.

So let's get to what's going on in the briefs before we get to today's oral arguments. The government's brief essentially comes down to, this statute in various forms goes back 130 140 years. The list of horribles that the defense gives -- We'll get to that in a minute. We've never prosecuted anybody for anything on the list of horribles, so you can take that to the bank.

What we simply have here is your standard issue solicitation crime that, again, has been codified in all 50 states and in multiple forums in the federal code. And what's the big deal? They cite the Lees case of 1893, which talks about the precursor to today's 1324 discussion.

Nowhere in any of these cases that have come before the United States Supreme Court, either under the original, I think it was 1885 when it was first codified, through the 1952 amendments, through the last amendments, which were in 1986, no one has ever talked about First Amendment violations for how this statute is written.

And even in the most recent ones, the 1986 amendments, which took out a couple of words —and that was a major point for the defense—we still have almost 40-some years, and it's never come up before. Why are you bringing it up now?

A little tidbit that I liked is that they used in their brief -- They quoted a book that was written by Justice Scalia called Reading Law. And the government's brief, I thought, was just -- I just chuckled that they used that because, let's face it, they're arguing to a certain group in the United States Supreme Court who probably would appreciate what Justice Scalia says.

So I just thought that was good lawyering, if you will, by government brief writers. Now, turning to Mr. Hansen and his defense team, their position. Well, number one -- And it was eventually agreed upon by the government, but their first argument is the jury instruction. So all the way back at the beginning. After, I think it was about a two-week-long trial for Mr. Hansen, jury instructions came up.

And at that time, because we hadn't had the Sinening-Smith case, the defendant was arguing that the government must prove that he substantially encouraged or induced a noncitizen to reside in the United States. That's what the defendant wanted at that time. The government argued against it.

Today, the defendant's point is, "We've switched sides, and that ain't right," so says Mr. Hansen's attorney. And, to a certain extent, that's certainly true. The government is now arguing that which they were arguing against at the jury instruction stage of the case.

Their next argument goes to the Brandenburg case of many years ago, which essentially gives us the standard that we've been using for the last 40 or 50 or 60 years, that, to criminalize speech, it has to be speech that encourages illegal conduct, unless it's intended and likely to incite illegal conduct.

Let me say that again. The Brandenburg case says you can't criminalize speech unless it's intended and likely to incite illicit conduct. So that sort of frames their version, if you will, of the law. And I thought it was ironic that another Federalist, Eugene Volokh of UCLA Law School wrote another amicus brief for the defendants, and the defendant's own counsel cites his other works in their brief.

And Professor Volokh's main point is more coming from a First Amendment professor approach talking about, the current status of the law is that it is a civil violation to remain in the United States either after you illegally entered or after you legally entered the United States but your visa expired and you didn't go home; you're still here. The remaining is simply a civil offense, and you would be put into civil removal proceedings.

Professor Volokh's point is that nowhere in history can he find, and nobody else, for that matter -- Well, we'll get to that later. He can't find any circumstance where the crime of enticing someone to do something that isn't a crime can be a crime and therefore punishable by something worse, like jail time, than a civil offense. That's Professor Volokh's main point. We've touched upon Clark Neily's points.

So let's get to today's argument. As a guy named Brian, I was cheering a little bit, I'll freely admit, to the government attorney's, also named Brian, but that's where it ends. I'm trying to play neutral arbiter here and give you a down-the-middle assessment of what was going on today. So the government's main position is, "Look, we've had this law for over a century. We've never done anything along the lines of the defendant's worst-case scenarios, and the litany of hypos."

And what I was referring to in that is, throughout briefing and today's arguments, the defense continues to say—and with justification, I will say—"Look, if you don't throw out this law, what we'll have happen is immigration lawyers won't be able to freely talk to their clients because to do so might be viewed as a crime of enticing the noncitizen to stay to fight his asylum case or file for adjustment of status or some other relief in immigration court for removal."

It could also be—again, in the defendant's litany of horrors—if a grandmother, a United States citizen, would say to her grandson, "Grandson, stay in the United States. Help me. I know you're here illegally, but I want you to stay." Could the government go after Grandmama for saying that? Would the government ever go after Grandma for saying that? Two different questions.

And you can envision where the defense is going with this. Charitable organizations might be chilled from either saying or doing their charity work towards the noncitizen clientele. Doctors might not want to tell their patients to stay and get healthcare, etc., etc. You understand. That's the litany of things that the defense is trying to get the Court to understand it is possible to be prosecuted for those kinds of situations under this statute.

The government, their essential response is, "Look, this statute has been on books in various forms," as I said, "for over a century. It hasn't happened. It's not going to happen, period." Then they get a little more subtle. The statute in question needs both an actus and a mens reas. What is going on here is, yeah, you might have the word, but you don't have the action or you might have the action and not the underlying intent to do something illegal or to entice someone to do something illegal.

And skipping on my notes to the end, I thought the rebuttal comment by the government summed up a lot of the hour-long argument today. Several of the justices wanted to make this particular violation, if you will, a violation of 1324.

We talked a lot about whether the terms that were omitted by Congress in the last iteration, 1986 -- Did the omission of the terms aid and abet and just simply leaving in entice or induce change the meaning? The removal of those terms, did that now make this particular statute unconstitutional? And if this is simply an aiding and abetting offense, how can the government go about proving that without the chilling of the speech that the defendant, through counsel, is so upset about?

And I thought the best argument of the day for the government on this particular point is, number one, it's Congress's prerogative under the Constitution to make immigration laws. And so Congress certainly has the authority to make the enticement of a civil offense a crime.

Whether you agree that like that or whether you want that to happen or whether you think that that's not a good policy isn't the point. Congress certainly can do that. And so, therefore, since Congress can do that, it's not a First Amendment issue. Congress can certainly make a crime of enticing someone to commit a civil offense. If they can do that, then there's really not much of a First Amendment issue here.

And since there's no First Amendment issue here, the whole overbreadth issue that we're talking about here, because the Ninth Circuit essentially made us all talk about it, goes out the window, and what we should have here is simply an as-applied standard. 1324, as applied to each and every individual case, does it form the basis of a valid conviction or not and not just simply tossing out the entire baby with the bathwater is essentially what the government is saying?

A few other main points here that I got from oral arguments. I think the biggest -- Well, we'll put it this way. Justice Sotomayor seemed to come across, to me, as the most against the government's position of the justices and their questions, answers on both attorneys. She certainly went after the litany of horrors, as I've been calling it; picked upon the grandmother one, which is why I used it; certainly asked a lot of questions of government's counsel about the aid and abet issue that we have, which was what was removed many years ago from 1324 to get the more broader, if you will, language of induce and entice. Those kinds of issues, we got a lot of back and forth between especially government's counsel and Justice Sotomayor.

Justice Gorsuch seem to be the most, if you will, down the middle, asking a lot of questions about both sides. So if there's going to be something more than a 6-3 vote, I would suspect Justice Gorsuch might be the one to go over to his liberal colleagues, if you will. But I'm not saying he will or that I'm saying that that's what I think might happen, but I wouldn't be totally surprised based on his down-the-middle Q&A of both counsel.

He brought up the old soil argument. And in brief, case law essentially says, "Look, these terms, the induce, the entice, have had meanings for hundreds of years. And the soil, if you will, the jurisprudential language that has been used for those terms, comes with it to today's case." And in the criminal court context, there are specific meanings to these terms.

So to get away from the battle of the dictionaries that we've had throughout the course of these two cases, the Black's Law, if you will, versus the Webster's Dictionary, they're fighting out what does entice and induce mean, the government would point out—and it seemed like Gorsuch came along with them—that you bring all of the hundreds of years in the criminal law context of what these terms mean.

And that gets us to, "Hey, look, if you entice and induce, then, yeah, you might be guilty, but you need to do something more." And again, the something more, I think that might be a crime, but it's a crime of an accessory after the fact and not the crime that we're talking about here.

And why that's important is the arguments that say a charitable organization, they're not going to give food to poor noncitizens; they're not going to help them; they're not going to verbally say that they should stay and we can help you because, if you believe that that could be caught up in a 1324 case by an overzealous prosecutor, the verbiage doesn't apply to this particular statute.

If the overzealous prosecutor was going to go after you, it was going to be for an accessory after the fact and not an aid and abet, the actual crime as it was taking place. And so, therefore, since it's not an aid and abet, but at worst, it's an accessory after the fact, the entirety of the defense argument falls because they're not going after you for violating, again, the litany of horrors.

Let's see here. Alito was focused in on that speech can be regulated, and he brought up a suicide example. Can Congress or a state legislature enact a law that is a crime to encourage someone to commit suicide, even if suicide itself isn't a crime? Yeah, probably. So what's the real problem here? I'm paraphrasing, of course.

Kagan, on several occasions, picked up on the, "Look, this has been on the books for decades. These kinds of horrible possibilities that the defendant brings out just haven't happened. Isn't that a reason why we should not consider this an overbreadth case and just be a one-off and therefore not have to go through this?" So I thought that was interesting, given who it was coming from.

Let's see here. To summarize, I thought the arguments went according to what I was predicting in my own mind. Look, the case is going back. The government conceded that the jury instructions were deficient. The reason the government posits that the instructions were deficient is they were given before the Ninth Circuit, and then the Supreme Court had the Sinening-Smith give and take, if you will.

And so they were simply given the normal way by the normal process, and we didn't have these extra ideas in our mind. So now that we do, the government conceded, "We can send it back for those reasons, but let's at least get a decision on the overbreadth statute done today." And that's where I'll finish up.

Look, this is the second time this exact situation has come up within the last couple of years. The case was kicked back for procedural grounds and basically slapped down to the Ninth Circuit. We've got a new chance, and I'm hoping that the Supreme Court won't just remand it for other reasons without dealing with this overbreadth issue once and for all in a 1324 context. That's the hope. We'll see what happens in a few months. Thank you for listening. Chayila? 

Chayila Kleist:  Thank you. Thank you. I really appreciate that summation of oral argument went as well as laying out some of the background for this case. As a reminder to our audience, if you've got questions, we're now transitioning into a time of Q&A, so please feel free to submit those via the Q&A feature.

But as those start rolling in, I'll began with a couple questions of my own. You helpfully laid out the background of United States v. Sinening-Smith—I'm sure I butchered that slightly—and how it frames the arguments that went on today in Hansen. Diving a little more into that, what, if anything, is the fact that the Court accepted this case after unanimously rejecting a procedure just a couple of years earlier say about this case and what the Court's thinking?

Brian Fish:  Well, again, Chayila that's what bothered me. When the Supreme Court remanded Sinening-Smith back to the Ninth, the Ninth Circuit simply affirmed the conviction. They weren't done with it. And that bothers me, because why would a group of judges—or anybody—do the exact opposite of what they were told to do, or what they told the world that they were believing is that the 1324 statute was overbroad?

Why didn't they give Sinening-Smith that same treatment? They didn't; they just basically kicked that guy to the curb and said, "Man, sorry. We tried for you, and now we're going to try with Hansen." I think that's just wrong. Courts should not be doing that. Do they? Of course. You know, I'm not naive to the fact that judges stylize things in their decisions to see what the appellate courts might do. What I'm saying is they shouldn't, and this case was a blatant example of that fact.

And to have the Supreme Court slap you down 9-0 seemed to be telling the Ninth Circuit, "That was wrong. Don't do it again." What I was liking—or hoping for, I guess I should say—three years ago was that they would give a little more guidance to the Court and say, "Look, we're not interested in overbreadth for this statute. Just do your business on a straight-up appeal." But they didn't; they just let it hang.

And so we're back literally arguing the same thing all over again. And it's frustrating because you wasted three years. You wasted a lot of time and effort to get back to the same thing. That's why I'm hoping that they actually make the decision on this case, and I think they will. I mean, why else would they have taken out a second time if they're not going to make an overbreadth ruling one way or the other? But I'm not going to hold my breath on it.

Chayila Kleist:  Fair enough. So, as you mentioned, this case provides both a conversation on criminal law and procedure as well as free speech. Leaving aside the free speech for a moment, what could the decision in this case affect in the realm of criminal law and procedure, particularly as it regards how cases of this sort are prosecuted?

Brian Fish:  Well, that's the defense's argument is -- They're taking a worst-case scenario is, if the Supreme Court upholds the statute as constitutional, then the government is going to go after Grandma, it's going to go after the immigration lawyers, the immigration charities for saying or doing anything that could possibly be perceived as enticing or inducing someone to stay in United States illegally.

Again, the government's position is, "We haven't done it before." You know, there's nothing in here in today's argument or the hundreds of pages of paper that I download in briefs that would indicate that we would ever do this. Certainly, the Court—I believe it was Justice Jackson, but it might have been Sotomayor—essentially said, "Well, just because you haven't done it before, why should we believe you that you're not going to do that tomorrow?" And that issue went back and forth?

If the government upholds the constitutionality of 1324, I don't see the United States government doing anything differently whatsoever. They're not going after Grandmama for asking the grandkid to stay. These 1324s in this context, certainly with the enhanced penalty clause that we discussed earlier, they're not going to be going after, say, Catholic charities or anybody else for simply helping people, period. They're just not.

And so I don't see the government doing anything differently in these kinds of cases. The defense's argument is—and this comes through a line of questions by Justice Jackson—how do we know that this 1324 statute hasn't chilled people from doing it in the past? And I think the government's reply would be, "Well, look at Hansen. Hansen certainly did this to the tune of almost $2 million. He enticed lots of people to stay. No one is being chilled by this until, of course, it gets used on an individual, as case-by-case basis situation, and but for people like Hansen, we wouldn't be having this discussion," which again, goes back to, nobody felt bad for Mr. Hansen in today's arguments.

Chayila Kleist:  Well, thank you. Going into some of the implications based on the possible decisions that could come out of this, starting with if the Court rules in favor of the government and upholds the ruling of the Ninth Circuit, I know you said you rather this didn't happen so we don't have a Sinening 2.0, but could the Court ruled narrowly on an issue of procedure rather than address the free speech question? And if so, how am I to go about it?

Brian Fish:  Right. Well, the government appealed. So if the Supreme Court essentially agrees with a government that 1324 is not overbroad --

Chayila Kleist:  I'm sorry. Yes. Uphold the Ninth so the government is denied. I conflicted the two.

Brian Fish:  That's understandable because, again, the back and forth ping-pong has been these two cases. What I fear happening is the Supreme Court got the, "Okay, this is low-hanging fruit. The government's conceding that the jury instructions that were given in the Hansen case were deficient. We can kick on that and, again, not address the overbreadth argument in any way whatsoever."

I could see them doing that just to get five justices if there's some sort of smackdown fight in chambers when they go to conference this case. I'm hoping they don't because they just know darn well it just means it'll come back to them. We've already had that. But I can see that it's possible.

So that would be how they would do that is just remand to the Ninth to have further arguments on the jury instruction issue, which might kick it all the way back to the trial court for a retrial because of that. I could see that happening, in which case it would be another three years or more before we get it all the way back up. We'll see.

Chayila Kleist:  Fair enough. Oh, we have a question from the audience. Raul Calandra [sp]—and you've touched on this some, but I'd love if you could flush it out further—mentions that abet always has to be aimed at getting a crime committed. With the omission of the word abet, did Congress intend to make it an offense to cause a civil wrong, or was this an oversight?

Brian Fish:  I don't think it was an oversight. Well, both sides argue this pretty extensively. The government's position is, before the 1986 amendments, there was the long list of things that you could do: aid, abet, induce, entice. There was dozens of them or whatever they were. And so the '86 amendment cleaned it up, if you will. Certainly not cleared it up, but anyways, cleaned it up to just get down to induce and entice.

Government's position is that didn't change the meaning of anything. And that's why I cited that Scalia book. Scalia, in his book Reading Laws, for this purpose, essentially says, "When you get one of those long list of things, you can read it all together. And the government just taking two of those words out was just for simplicity's sake and nothing more than change the substance of the law." That's the government's position.

The defendant's position is, of course, the exact opposite. "Oh, no, no, no, no, no, no, no, no, no. That changed everything, the leaving out of those couple of words, and that made this entire statute a First Amendment violation." Part of the issue is—again, I alluded to that earlier—1324 has various subsections, and then it goes to the penalty phase of the statute, and each of the penalty phases has a different way to get to that number.

So in other words, in this particular case, a regular, if you will, 1324 violation might get you five years, but because Hansen made millions of bucks off of it, it was for financial gain, and therefore, if proven, the enhancement phase, you get ten years. You got two convictions for that among, I think, 15 or 16 other offenses in this one, so you got an extra 20 years.

Even if he wins it, he's still in jail for another 20 years instead of 40 years, so he's not going anywhere anytime soon. But that's the crux of the issue. Did the '86 amendments so fundamentally change the statute that made it overbroad, or is it simply that Congress cleaned up their long litany of things just for simplicity's sake, as the government would have? That's one of the main issues in this case, and hopefully we get a decision.

Chayila Kleist:  So you mentioned—and I would appreciate a little more clarity on this—the way that the "for financial gain" can be used as an enhancement. Depending on how the Court argues, what might this decision mean for speech undertaken that's not in the pursuit of financial gain? So similar speech, but it's not something that's going to benefit the person speaking.

Brian Fish:  Right. Some of my friends in the immigration bar, that's what they're concerned with is how the Supreme Court will view that aspect to this case. When somebody goes into their office and says, essentially, "I'm here illegally. Can you help me stay here legally," if the lawyer then says, well, anything, would that be a violation of this law?

And obviously, the lawyer, unless they're a pro bono lawyer, but if they want to make a buck, they want to say, "Yes, I can help you. You're going to file for -- I'm going to help you file for asylum" or "You've been here for years. I'm going to help you file for what's called cancellation of removal" or any other possibility that this person might be eligible for, "and my fee is whatever it is; 100 bucks an hour."

At that moment, did they go from just committing the base offense, if you will, to, now that they're asking for 100 bucks an hour, is that now subject to penalty enhancements? Again, my friends on the immigration bar are justifiably—from a pie-in-the sky, 30,000, 100,000-foot level, however many feet you want to get up there—afraid that the government will then go after them if the Supreme Court upholds this.

Like I said earlier, I don't see that even -- I don't think the justices see that as a possibility. The defense's argument is, "That doesn't matter. Just because the government has never done that before doesn't mean they won't start now, and that's not the standard. The standard is, is this overly broad and does it chill speech such that it is a First Amendment violation?"

The justices will certainly hash that out between Sotomayor, Kagan, and Jackson on one side. And, like I said, Gorsuch went back and forth with everybody. The issue has been covered. I personally don't think that it'll go there in terms of a decision, assuming we get a decision on the underlying overbreadth issue.

I think what I'm hoping for is we get something along the lines of the following: "This case is going to be remanded because of the jury instruction issue. We decline to hear an overbreadth challenge to 1324, as the as-applied, case-by-case basis is a much better approach to this particular statute." If we get that sentence, then yeah, we're done. If we don't get that sentence, then, like I said, we'll be here again in a few more years.

Chayila Kleist:  Fair enough. Well, thank you. We've touched on what happens if the Court affirms the Ninth Circuit's decision. Now I'll ask the opposite question. What are the possible effects of ruling in favor of Hansen, and what would this change regarding precedent concerning free speech?

Brian Fish:  That's an interesting question. If they say that this is overly broad, well, then you get into a political discussion because what you heard today was, if they didn't take out those two magic words in 1986, then the defense essentially conceded, "Yeah, we wouldn't really be arguing this one anymore, but since they did, we are."

So the political issue is, the reality is, are we going to have any kind of immigration change in the law? And I hate to use the term reform because that goes squirrely. Are we going to get any substantive changes in immigration law, given the current situation? And the answer is no.

So if Hansen wins on this particular issue and 1324 is deemed to be unconstitutional, because it's overbroad, then people like Hansen, I think there'll be more of them because there'll just be more fraudsters because you would essentially be legalizing fraud. The government would have other ways to get at it through general fraud statutes or maybe a wire fraud, those kinds of things.

There are other ways that the government would be going at it, but I think it would just entice people to do these -- And I did use the word entice specifically because that's the one in the statute. I think it would entice people to do the same things that Hansen and Sinening-Smith did, so I think that would be a bad outcome.

Chayila Kleist:  Well, thank you. I appreciate you breaking that up. A question from the audience: Does the rule of lenity apply here? And if so, how would it affect construing the statute?

Brian Fish:  I'm sorry? Say that again. 

Chayila Kleist:  Sorry. How does the rule of lenity apply here, if it does at all?

Brian Fish:  I don't think it does at all. Yeah. It wasn't brought out in, again, the hundreds of pages of briefs. It wasn't brought out at all in argument. I don't think the Court will even touch upon it because they haven't so far. So I don't think anyone involved in this case has even associated lenity with anything to do with it. I think they're simply arguing, again, the civil versus criminal aspects of the case and the litany of horrors, if you will. Those are the two main issues.

Chayila Kleist:  Got it. Well, as we approach the top of the hour, we'll leave it there. On behalf of The Federalist Society. I want to thank you, Mr. Fish, for joining us today and our audience for your valuable time. We really appreciate you all joining us. We welcome listener feedback at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. But with that, thank you all for being with us today. We're adjourned.

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