Last week, the U.S. Supreme Court issued two immigration rulings in its race to finish cases in the final month of its 2022-23 term. The decisions in U.S. v. Hansen and U.S. v. Texas are victories for the Biden administration, which prevailed in both cases.
In U.S. v. Texas, the court upheld the Department of Homeland Security’s immigration enforcement strategy announced by Secretary Alejandro Mayorkas in September 2021. The policy prioritized the apprehension and removal of three specific groups of undocumented immigrants: suspected terrorists, convicted criminals and individuals detained recently at the southwest border. The Biden administration’s goal for the policy was to focus limited departmental resources on individuals with a higher likelihood to negatively affect public safety.
Two states, Texas and Louisiana, sued the federal government in Texas, alleging that the prioritization policy imposed undue costs on the states because it forced states to either incarcerate more undocumented immigrants or provide social services such as health care and education to noncitizens who could have been subject to apprehension and removal proceedings. The U.S. District Court in Texas sided with the states, halting the implementation of the policy nationwide.
The Supreme Court dismissed the case on procedural grounds, ruling that Texas and Louisiana did not have standing to sue the government in the case. To establish standing, a plaintiff must show the defendant caused an injury and that a court can remedy the injury. The court reasoned that the federal government and state governments can exercise prosecutorial discretion, and individuals who are neither prosecuted nor threatened with prosecution have no standing to challenge the policies of the prosecuting authority.
In addition, the court asserted that a lawsuit alleging that the executive branch is making an insufficient number of arrests would interfere with the president’s authority to enforce federal law conferred by Article 2 of the Constitution. The court’s holding allows Homeland Security to implement the prioritization policy at the border and nationwide.
Adult Adoption Scam
The second case, U.S. v. Hansen, arises under a criminal case against Helaman Hansen, a California man convicted of operating an adult adoption scam to defraud undocumented migrants.
The scheme involved internationally soliciting individuals interested in immigrating to the U.S. and charging them a fee in exchange for a pathway to citizenship through adult adoption, which does not exist. Each victim of Hansen’s scam paid him approximately $4,500, totaling about $2 million. Hansen was charged with encouraging or inducing a foreign national to enter the United States while knowing or recklessly disregarding the fact that the foreign national’s entry would be illegal.
Hansen appealed his case, arguing the statute is overbroad and violates the First Amendment. Overbreadth is a common First Amendment challenge that alleges a statute is so broad it has a chilling effect on constitutionally protected speech. Hansen conceded that his conduct violated the law and was not protected by the First Amendment, but that the law itself was so broad that if it applied, it would criminalize protected First Amendment speech. The 9th U.S. Circuit Court of Appeals ruled in Hansen’s favor, holding the clause in the statute was facially overbroad.
The Supreme Court overruled the lower court in a 7-2 vote. In its opinion, the court compared the statute with longstanding federal and state criminal solicitation and facilitation laws. The laws technically criminalize certain speech but are limited to purposeful solicitation or facilitation of specific criminal behavior. Accordingly, the laws are tailored enough not to prohibit a meaningful amount of protected speech and should be upheld.
Justices Sonia Sotomayor and Ketanji Brown Jackson dissented, arguing the statute as it is written is overbroad and the majority should have interpreted the law by its plain text. They argued that ordinary people who read the law would likely believe the statute prohibits protected speech. Further, there have been instances where the federal government has used the law to interfere with the work of journalists and nongovernmental organizations that help undocumented immigrants, showing the need for the law to be examined.
Both cases show the court’s reluctance to disrupt the status quo in the immigration arena. Congress has yet to introduce comprehensive immigration reform legislation this year.
Nicole Ezeh is a legislative specialist in NCSL’s State-Federal Relations Program.