A Unanimous Supreme Court Brushes Back the Legal Resistance

By Dan McLaughlin

Thursday, May 07, 2020

The Supreme Court is often divided on ideological lines on hot-button issues, and tends to write unanimously when dealing with procedural questions where a lower court just went off the rails. So, when the Court takes a unanimous stand in a case involving a controversial political issue and goes out of its way to dress down the lower-court judges, you know they really went overboard. That’s what happened this morning in an immigration case, United States v. Sineneng-Smith. Justice Ginsburg herself delivered the lecture to the Ninth Circuit to knock off the antics and stick to the cases before it.

The Sineneng-Smith case involved an immigration consultant who made $3.3 million from clients (mostly Philippine immigrants) by filing applications for lawful permanent residence when she knew they were not legally entitled to that status. There were two potential victims here: the immigrants, if they paid for something they were never going to receive, or the government, if it approved illegal applications. Sieneneng-Smith tried to make herself more sympathetic by arguing that she was only scamming the immigration system: She “argued that labor-certification applications were often approved despite expiration of the statutory dispensation, and that an approved application, when submitted as part of a petition for adjustment of status, would place her clients in line should Congress reactivate the dispensation.” Neither of these was an argument that her clients had any legal leg to stand on, just hope that they might get away with it.

Sineneng-Smith argued that she had a First Amendment right to file bogus applications, under the Petition and Free Speech Clauses. When her appeal reached the Ninth Circuit, however, it landed before notorious liberal activist judge Stephen Reinhardt (who died after the case was argued, and has since been the subject of other controversies), on a three-judge panel with two Clinton appointees, judges Marsha Berzon and Wallace Tashima. Instead of hearing the arguments Sineneng-Smith made against her conviction, the judges thought up their own argument — that the federal statute against “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” is itself overbroad and should be thrown out in its entirety.

The Ninth Circuit panel brought in three lawyers to make friend-of-the-court arguments against the whole statute, and — after Judge Reinhardt died and was replaced on the panel by an Obama appointee — ruled that it was unconstitutional because Congress cannot criminalize encouraging people to break the law unless the law involved is a criminal statute: “even if certain speech would constitute aiding and abetting when directed toward the commission of a crime, it would be constitutionally protected when aimed at inducing a civil violation of law . . . unauthorized presence in the country is a civil violation rather than a crime.” The Ninth Circuit said that this could chill protected speech such as “an attorney who tells her client that she should remain in the country while contesting removal” — an obviously different situation from knowingly advising abuse of the legal process. (Justice Thomas, in a concurring opinion today, suggested that the overbreadth doctrine relied on by the Ninth Circuit should itself be revisited another day “in an appropriate case,” precisely because it gets courts into the business of deciding hypothetical cases). Sineneng-Smith and some of the amicus briefs even asked the Ninth Circuit to rule that it was discriminatory to criminalize encouraging people to break the law, but not criminalize discouraging them from breaking the law. Only in immigration cases would this kind of thing get argued in court.

For Justice Ginsburg and the rest of the Court, the rogue judicial effort to bring down the entire statute without having been asked by the parties to the case went too far:

In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role . . . Courts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right.  They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties . . . No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others . . . a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale. [Emphasis added; quotations and citations omitted.]

Rather than decide the legal issues, the Court sent the whole thing back to the Ninth Circuit with instructions to hear the appeal over again, this time in a process “bearing a fair resemblance to the case shaped by the parties.” Ouch. Judges tempted to make political statements and rewrite the law, rather than hear and decide the cases in front of them, should take notice.