A majority of Supreme Court justices seemed unwilling on Monday to strike down a federal ban on encouraging immigrants to remain in the U.S. illegally, despite arguments that the law violates the First Amendment. Most of the justices seemed to accept that the statute — which could lead to as many as five years in prison for encouraging or inducing an unlawful immigrant to remain in the U.S. — could be read to intrude on free-speech rights, Politico reports. However, several justices noted that the government has seldom used the law to prosecute people for mere comments or suggestions. The rarity of such prosecutions undercuts claims that the law is unconstitutionally overbroad and could prompt immigration lawyers and other activists to avoid counseling undocumented immigrants about their options, some justices said. “There’s an absence of prosecution,” Justice Amy Coney Barrett said. “There’s also an absence of demonstrated chilling effect.” The court’s liberal justices said the concerns sounded far from hypothetical. Justice Sonia Sotomayor said a child could be charged with encouraging a grandmother in the U.S. to stay while knowing she was not here legally.
The case heard Monday, arising from the conviction of Californian Helaman Hansen in an adult-adoption immigration fraud scheme, is a difficult one for the Biden administration, arising at an awkward time for the White House. The Justice Department’s defense of the law is at odds with immigrant-rights groups, who say they fear prosecution under the statute. The showdown comes amid growing anger by immigrant-rights activists over several recent policy moves. The administration wants to make it harder for migrants to claim asylum at the border and Biden is weighing a return to a policy of large-scale detention of immigrant families who arrive without permission to enter the U.S. Early in the argument, conservative Justices Brett Kavanaugh and Neil Gorsuch seemed to question the law’s scope. Kavanaugh said charitable groups that provide food, water and shelter to immigrants seemed to have “sincere” worries about being prosecuted under a broad reading of the law. Gorsuch initially expressed concern about the Justice Department’s attempt to reinterpret the law’s language. He seemed even more troubled by the notion of allowing Hansen to use his criminal case to raise arguments about how the law could affect others.