United States v. Hansen HTML PDF
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Syllabus
UNITED STATES v. HANSEN
25 F. 4th 1103, reversed and remanded.
NOTE:âWhere it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. HANSEN
certiorari to the united states court of appeals for the ninth circuit
Respondent Helaman Hansen promised hundreds of noncitizens a path to U. S. citizenship through âadult adoption.â But that was a scam. Though there is no path to citizenship through âadult adoption,â 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 âencourag[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 [activity] is or will be in violation of law.â Hansen was convicted and moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansenâs argument, but the Ninth Circuit concluded that clause (iv) was unconstitutionally overbroad.
Held: 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. Pp. 4â20.
ââ(a) Hansenâs 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 âprohibits a substantial amount of protected speechâ relative to its âplainly legitimate sweep.â United States v. Williams, 553 U. S. 285, 292. In such a circumstance, societyâs interest in free expression outweighs its interest in the statuteâs lawful applications. Otherwise, courts must handle unconstitutional applications as they usually doâcase-by-case. Pp. 4â5.
â(b) The issue here is whether Congress used âencourageâ and âinduceâ 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). Pp. 5â9.
ââ(1) Criminal solicitation is the intentional encouragement of an unlawful act, and facilitationâi.e., aiding and abettingâis the provision of assistance to a wrongdoer with the intent to further an offenseâs commission. Neither requires lending physical aid; for both, words may be enough. And both require an intent to bring about a particular unlawful act. The terms âencourageâ and âinduce,â found in clause (iv), are among the âmost commonâ verbs used to denote solicitation and facilitation. 2 W. LaFave, Substantive Criminal Law §13.2(a). Their specialized usage is displayed in the federal criminal code as well as the criminal laws of every State. If the challenged statute uses those terms as they are typically understood in the criminal law, an overbreadth challenge would be hard to sustain. Pp. 6â8.
ââ(2)Â Hansen, like the Ninth Circuit, insists that clause (iv) uses âencouragesâ and âinducesâ in their ordinary rather than specialized sense. In ordinary parlance, âinduceâ means â[to] lead on; to influence; to prevail on; to move by persuasion or influence,â Websterâs New International Dictionary 1269, and âencourageâ means to âinspire with courage, spirit, or hope,â Websterâs Third New International Dictionary 747. If clause (iv) conveys these ordinary meanings, it arguably reaches abstract advocacy or general encouragement, and its applications to protected speech might render it vulnerable to an overbreadth challenge. P. 9.
â(c) The Court holds that clause (iv) uses âencourages or inducesâ in its specialized, criminal-law senseâthat is, as incorporating common-law liability for solicitation and facilitation. Pp. 9â13.
ââ(1) Context indicates that Congress used those words as terms of art. âEncourageâ and âinduceâ have well-established legal meaningsâand when Congress âborrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.â Morissette v. United States, 342 U. S. 246, 263. That inference is even stronger here, because clause (iv) prohibits âencouragingâ and âinducingâ a violation of law, which is the object of solicitation and facilitation too. The Ninth Circuit stacked the deck in favor of ordinary meaning, but it should have given specialized meaning a fair shake. When words have several plausible definitions, context differentiates among them. Here, the context of these words indicates that Congress used them as terms of art. Pp. 9â11.
ââ(2) Statutory history is an important part of the relevant context. When Congress enacted in 1885 what would become the template for clause (iv), it criminalized âknowingly assisting, encouraging or solicitingâ immigration under a contract to perform labor. 23 Stat. 333.  Then, as now, âencourageâ had a specialized meaning that channeled accomplice liability. And the words âassistingâ and âsoliciting,â which appeared alongside âencouraging,â reinforce the narrower criminal-law meaning. When Congress amended that provision in 1917, it added âinduce,â which also carried solicitation and facilitation overtones. 39 Stat. 879. In 1952, Congress enacted the immediate predecessor for clause (iv) and also simplified the language from the 1917 Act, dropping the words âassistâ and âsolicit,â and making it a crime to âwillfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United States of . . . any alien . . . not lawfully entitled to enter or reside within the United States.â 66 Stat. 229. Hansen believes these changes dramatically broadened the scope of clause (iv)âs prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweepingâand constitutionally dubiousâmessage. The better understanding is that Congress simply streamlined the previous statutory language. Critically, the terms Congress retained (âencourageâ and âinduceâ) substantially overlap in meaning with the terms it omitted (âassistâ and âsolicitâ). Clause (iv) is thus best understood as a continuation of the past. Pp. 11â13.
â(d) Hansen argues that the absence of an express mens rea requirement in clause (iv) means that the statute is not limited to solicitation and facilitation. But when Congress placed âencouragesâ and âinducesâ in clause (iv), the traditional intent associated with solicitation and facilitation was part of the package. The federal aiding and abetting statute works the same way: It contains no express mens rea requirement but implicitly incorporates the traditional state of mind required for aiding and abetting. Rosemond v. United States, 572 U. S. 65, 70â71. Clause (iv) is situated among other provisions that function in the same manner. See, e.g., §§1324(a)(1)(A)(v)(I), (II). Since âencourages or inducesâ draws on the same common-law principles, clause (iv) also incorporates a mens rea requirement implicitly. Pp. 13â16.
â(e) Finally, it bears emphasis that the canon of constitutional avoidance counsels the Court to adopt the Governmentâs reading if it is at least â âfairly possible.â â Jennings v. Rodriguez, 583 U. S. ___, ___. Pp. 16â17.
â(f) Section 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law. So understood, it does not âprohibi[t] a substantial amount of protected speechâ relative to its âplainly legitimate sweep.â Williams, 553 U. S., at 292. It is undisputed that clause (iv) encompasses a great deal of nonexpressive conduct, which does not implicate the First  Amendment at all, e.g., smuggling noncitizens into the country. Because these types of cases are heartland clause (iv) prosecutions, the âplainly legitimate sweepâ of the provision is extensive. To the extent clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct, which is unprotected. See, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502. Hansen, on the other hand, fails to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted clause (iv)âs immediate predecessor. Instead, he offers a string of hypotheticals, all premised on the expansive ordinary meanings of âencourageâ and âinduce.â None of these examples are filtered through the traditional elements of solicitation and facilitationâmost importantly, the requirement that a defendant intend to bring about a specific result. Because clause (iv) does not have the scope Hansen claims, it does not produce the horribles he parades. Hansen also resists the idea that Congress can criminalize speech that solicits or facilitates a civil violation, and some immigration violations are only civil. But even assuming that clause (iv) reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not lopsided enough to justify facial invalidation for overbreadth. Pp. 17â20.
25 F. 4th 1103, reversed and remanded.
âBarrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Jackson, J., filed a dissenting opinion, in which Sotomayor, J., joined.
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Opinion
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22â179
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UNITED STATES, PETITIONER v. HELAMAN HANSEN
on writ of certiorari to the united states court of appeals for the ninth circuit
âJustice Barrett delivered the opinion of the Court.
âA federal law prohibits âencourag[ing] or induc[ing]â illegal immigration. 8 U. S. C. §1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not âprohibi[t] a substantial amount of protected speechââlet alone enough to justify throwing out the lawâs âplainly legitimate sweep.â United States v. Williams, 553 U. S. 285, 292 (2008). We reverse.
I
âIn 2014, Mana Nailati, a citizen of Fiji, heard that he could become a U. S. citizen through an âadult adoptionâ program run by Helaman Hansen. Eager for citizenship, Nailati flew to California to pursue the program. Hansenâs wife told Nailati that adult adoption was the âquickest and easiest way to get citizenship here in America.â App. 88. For $4,500, Hansenâs organization would arrange Nailatiâs adoption, and he could then inherit U. S. citizenship from  his new parent. Nailati signed up.
âIt was too good to be true. There is no path to citizenship through âadult adoption,â so Nailati waited for months with nothing to show for it. Faced with the expiration of his visa, he asked Hansen what to do. Hansen advised him to stay: â[O]nce youâre in the program,â Hansen explained, âyouâre safe. Immigration cannot touch you.â Id., at 92. Believing that citizenship was around the corner, Nailati took Hansenâs advice and remained in the country unlawfully.
âHansen peddled his scam to other noncitizens too. After hearing about the program from their pastor, one husband and wife met with Hansen and wrote him a check for $9,000âinitially saved for a payment on a house in Mexicoâso that they could participate. Another noncitizen paid Hansen out of savings he had accumulated over 21 years as a housepainter. Still others borrowed from relatives and friends. All told, Hansen lured over 450 noncitizens into his program, and he raked in nearly $2 million as a result.
âThe United States charged Hansen with (among other crimes) violations of §1324(a)(1)(A)(iv). That clause forbids âencourag[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.â In addition to convicting him under clause (iv), the jury found that Hansen had acted âfor the purpose of private financial gain,â triggering a higher maximum penalty. App. 116; see §1324(a)(1)(B)(i).
âAfter the verdict came in, Hansen saw a potential way out. Another case involving §1324(a)(1)(A)(iv), United States v. Sineneng-Smith, was pending before the Ninth Circuit, which had sua sponte raised the question whether the clause was an unconstitutionally overbroad restriction of speech. 910 F. 3d 461, 469 (2018). Taking his cue from Sineneng-Smith, Hansen moved to dismiss the clause (iv) charges on First Amendment overbreadth grounds. The District Court rejected Hansenâs argument and sentenced  him.
âWhile Hansenâs appeal was pending, the Ninth Circuit held in Sineneng-Smith that clause (iv) is unconstitutionally overbroad. Id., at 467â468. That holding was short-lived: We vacated the judgment, explaining that the panelâs choice to inject the overbreadth issue into the appeal and appoint amici to argue it âdeparted so drastically from the principle of party presentation as to constitute an abuse of discretion.â 590 U. S. ___, ___ (2020) (slip op., at 3). On remand, limited to the arguments that Sineneng-Smith had actually made, the Ninth Circuit affirmed her convictions. 982 F. 3d 766, 770 (2020). But Hansenâs appeal was waiting in the wings, giving the Ninth Circuit a second chance to address the overbreadth question. It reprised its original holding in Sineneng-Smith.
âAs in Sineneng-Smith, the Ninth Circuit focused on whether clause (iv) is a narrow prohibition covering solicitation and facilitation of illegal conduct, or a sweeping ban that would pull in âstatements or conduct that are likely repeated countless times across the country every day.â 25 F. 4th 1103, 1110 (2022). It adopted the latter interpretation, asserting that clause (iv) criminalizes speech such as âencouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.â Ibid. Concluding that clause (iv) covers an â âalarmingâ â amount of protected speech relative to its narrow legitimate sweep, the Ninth Circuit held the provision facially overbroad. Ibid.
âThe Ninth Circuit denied the Governmentâs petition for rehearing en banc over the dissent of nine judges. Judge Bumatay, who wrote the principal dissent, attributed the panelâs overbreadth concern to a misreading of the statute.  See 40 F. 4th 1049, 1057â1058 (2022). Correctly interpreted, he explained, clause (iv) reaches only criminal solicitation and aiding and abetting. Ibid. On that reading, the provision raises no overbreadth problem because, â[e]ven if §1324(a)(1)(A)(iv) somehow reaches protected speech, that reach is far outweighed by the provisionâs broad legitimate sweep.â Id., at 1072.
âWe granted certiorari. 598 U. S. ___ (2022).
II
âThe First Amendment provides that âCongress shall make no law . . . abridging the freedom of speech.â Wisely, Hansen does not claim that the First Amendment protects the communications for which he was prosecuted. Cf. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 612 (2003) (â[T]he First Amendment does not shield fraudâ). Instead, he raises an overbreadth challenge: He argues that clause (iv) punishes so much protected speech that it cannot be applied to anyone, including him. Brief for Respondent 9â10.
âAn overbreadth challenge is unusual. For one thing, litigants typically lack standing to assert the constitutional rights of third parties. See, e.g., Powers v. Ohio, 499 U. S. 400, 410 (1991). For another, litigants mounting a facial challenge to a statute normally âmust establish that no set of circumstances exists under which the [statute] would be valid.â United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added). Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.
âWe have justified this doctrine on the ground that it provides breathing room for free expression. Overbroad laws âmay deter or âchillâ constitutionally protected speech,â and if would-be speakers remain silent, society will lose their  contributions to the âmarketplace of ideas.â Virginia v. Hicks, 539 U. S. 113, 119 (2003). To guard against those harms, the overbreadth doctrine allows a litigant (even an undeserving one) to vindicate the rights of the silenced, as well as societyâs broader interest in hearing them speak. Williams, 553 U. S., at 292. If the challenger demonstrates that the statute âprohibits a substantial amount of protected speechâ relative to its âplainly legitimate sweep,â then societyâs interest in free expression outweighs its interest in the statuteâs lawful applications, and a court will hold the law facially invalid. Ibid.; see Hicks, 539 U. S., at 118â119.
âBecause it destroys some good along with the bad, â[i]nvalidation for overbreadth is â âstrong medicineâ â that is not to be âcasually employed.â â Williams, 553 U. S., at 293. To justify facial invalidation, a lawâs unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statuteâs lawful sweep. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800â801 (1984). In the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually doâcase-by-case.
III
A
âTo judge whether a statute is overbroad, we must first determine what it covers. Recall that §1324(a)(1)(A)(iv) makes it unlawful to âencourag[e] or induc[e] 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.â1 The issue is  whether Congress used âencourageâ and âinduceâ 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 everyday conversation (thus encompassing a broader swath). An overbreadth challenge obviously has better odds on the latter view.
1
âWe start with some background on solicitation and facilitation. Criminal solicitation is the intentional encouragement of an unlawful act. ALI, Model Penal Code §5.02(1), p. 364 (1985) (MPC); 2 W. LaFave, Substantive Criminal Law §11.1 (3d ed. 2022) (LaFave). Facilitationâalso called aiding and abettingâis the provision of assistance to a wrongdoer with the intent to further an offenseâs commission. See, e.g., Twitter, Inc. v. Taamneh, 598 U. S. ___, ___â___ (2023) (slip op., at 13â14). While the crime of solicitation is complete as soon as the encouragement occurs, see LaFave §11.1, liability for aiding and abetting requires that a wrongful act be carried out, see id., §13.2(a). Neither solicitation nor facilitation requires lending physical aid; for both, words may be enough. Reves v. Ernst & Young, 507 U. S. 170, 178 (1993) (one may aid and abet by providing â âassistance rendered by words, acts, encouragement, support, or presenceâ â); MPC §5.02(2), at 365 (solicitation may take place through words or conduct); LaFave §11.1(c) (same). Both require an intent to bring about a particular unlawful act. See, e.g., Hicks v. United States, 150 U. S. 442, 449 (1893) (â[W]ords of encouragement and abetting mustâ be used with âthe intention as respects the effect to be producedâ). And both are longstanding criminal theories targeting those who support the crimes of a principal wrongdoer. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 181 (1994); LaFave §11.1(a).
âThe terms âencourageâ and âinduceâ are among the âmost  commonâ verbs used to denote solicitation and facilitation. Id., §13.2(a); see also 1 J. Ohlin, Whartonâs Criminal Law §10:1, p. 298 (16th ed. 2021) (Wharton) (â[A]dditional languageâsuch as encourage, counsel, and commandâusually accompanies âaidâ or âabetâ â (emphasis added)). In fact, their criminal-law usage dates back hundreds of years. See 40 F. 4th, at 1062â1064 (opinion of Bumatay, J.). A prominent early American legal dictionary, for instance, defines âabetâ as â[t]o encourage or set another on to commit a crime.â 1 J. Bouvier, Law Dictionary 30 (1839) (emphasis added). Other sources agree. See, e.g., Wharton §10:1, at 298 (â âabet,â â at common law, meant âto encourage, advise, or instigate the commission of a crimeâ (emphasis added)); Blackâs Law Dictionary 6 (1st ed. 1891) (to âabetâ â[i]n criminal lawâ was â[t]o encourage, incite, or set another on to commit a crimeâ (emphasis added)); cf. id., at 667 (11th ed. 2019) (defining âencourageâ with, in part, a cross-reference to âaid and abetâ).
âThis pattern is on display in the federal criminal code, which, for over a century, has punished one who âinducesâ a crime as a principal. See Act of Mar. 4, 1909, §332, 35 Stat. 1152 (âWhoever . . . aids, abets, counsels, commands, induces, or procures [the commission of an offense] is a principalâ (emphasis added)); 18 U. S. C. §2(a) (listing the same verbs today). The Government offers other examples as well: The ban on soliciting a crime of violence penalizes those who âsolici[t], comman[d], induc[e], or otherwise endeavo[r] to persuadeâ another person âto engage in [the unlawful] conduct.â §373(a) (emphasis added). Federal law also criminalizes âpersuad[ing], induc[ing], entic[ing], or coerc[ing]â one âto engage in prostitutionâ or other unlawful sexual activity involving interstate commerce. §§2422(a), (b) (emphasis added). The Model Penal Code echoes these formulations, defining solicitation as, in relevant part, âcommand[ing], encourag[ing] or request[ing] another person to engage in specific [unlawful] conduct.â MPC §5.02(1),  at 364 (emphasis added). And the commentary to the Model Penal Code notes that similar prohibitions may employ other verbs, such as âinduce.â See id., Comment 3, at 372â373, n. 25 (collecting examples).
âThe use of both verbs to describe solicitation and facilitation is widespread in the States too. Nevada considers â[e]very personâ who âaided, abetted, counseled, encouraged, hired, commanded, induced, or procuredâ an offense to be a principal. Nev. Rev. Stat. §195.020 (2021) (emphasis added). Arizona provides that one who âcommands, encourages, requests, or solicits another person to engage in specific conductâ commits the offense of solicitation. Ariz. Rev. Stat. Ann. §13â1002(A) (2020) (emphasis added). And New Mexico imposes criminal liability on one who âwith the intentâ for another to commit a crime âsolicits, commands, requests, induces . . . or otherwise attempts to promote or facilitateâ the offense. N. M. Stat. Ann. §30â28â3(A) (2018) (emphasis added). These States are by no means outliersââinduceâ or âencourageâ describe similar offenses in the criminal codes of every State. App. to Brief for State of Montana et al. as Amici Curiae 1â44; see, e.g., Ala. Code §13Aâ2â23(1) (2015) (âinducesâ); Colo. Rev. Stat. §18â1â603 (2022) (âencouragesâ); Fla. Stat. §777.04(2) (2022) (âencouragesâ); Haw. Rev. Stat. §705â510(1) (2014) (âencouragesâ); Ind. Code §35â41â2â4 (2022) (âinducesâ); Kan. Stat. Ann. §21â5303(a) (2020) (âencouragingâ); N. D. Cent. Code Ann. §12.1â06â03(1) (2021) (âinducesâ); Tex. Penal Code Ann. §7.02(a)(2) (West 2021) (âencouragesâ); W. Va. Code Ann. §61â11â8a(b)(1) (Lexis 2020) (âinducementâ); Wyo. Stat. Ann. §6â1â302(a) (2021) (âencouragesâ).
âIn sum, the use of âencourageâ and âinduceâ to describe solicitation and facilitation is both longstanding and pervasive. And if 8 U. S. C. §1324(a)(1)(A)(iv) refers to solicitation and facilitation as they are typically understood, an overbreadth challenge would be hard to sustain.
 2
âHansen, like the Ninth Circuit, insists that clause (iv) uses âencouragesâ and âinducesâ in their ordinary rather than their specialized sense. While he offers definitions from multiple dictionaries, the terms are so familiar that two samples suffice. In ordinary parlance, âinduceâ means â[t]o lead on; to influence; to prevail on; to move by persuasion or influence.â Websterâs New International Dictionary 1269 (2d ed. 1953). And âencourageâ means to âinspire with courage, spirit, or hope.â Websterâs Third New International Dictionary 747 (1966).
âIn Hansenâs view, clause (iv)âs use of the bare words âencouragesâ or âinducesâ conveys these ordinary meanings. See Brief for Respondent 14. â[T]hat encouragement can include aiding and abetting,â he says, âdoes not mean it is restricted to aiding and abetting.â Id., at 25. And because clause (iv) âproscribes encouragement, full stop,â id., at 14, it prohibits even an âop-ed or public speech criticizing the immigration system and supporting the rights of long-term undocumented noncitizens to remain, at least where the author or speaker knows that, or recklessly disregards whether, any of her readers or listeners are undocumented.â Id., at 17â18. If the statute reaches the many examples that Hansen posits, its applications to protected speech might swamp its lawful applications, rendering it vulnerable to an overbreadth challenge.
B
âWe hold that clause (iv) uses âencourages or inducesâ in its specialized, criminal-law senseâthat is, as incorporating common-law liability for solicitation and facilitation. In truth, the clash between definitions is not much of a contest. âEncourageâ and âinduceâ have well-established legal meaningsâand when Congress âborrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the  cluster of ideas that were attached to each borrowed word.â Morissette v. United States, 342 U. S. 246, 263 (1952); see also, e.g., United States v. Shabani, 513 U. S. 10, 13â14 (1994).
âTo see how this works, consider the word âattempts,â which appears in clause (iv)âs next-door neighbors. See §§1324(a)(1)(A)(i)â(iii). In a criminal prohibition, we would not understand âattemptâ in its ordinary sense of âtry.â Websterâs New Universal Unabridged Dictionary 133 (2d ed. 2001). We would instead understand it to mean taking âa substantial stepâ toward the completion of a crime with the requisite mens rea. United States v. Resendiz-Ponce, 549 U. S. 102, 107 (2007). âEncourages or inducesâ likewise carries a specialized meaning. After all, when a criminal-law term is used in a criminal-law statute, thatâin and of itselfâis a good clue that it takes its criminal-law meaning. And the inference is even stronger here, because clause (iv) prohibits âencouragingâ and âinducingâ a violation of law. See §1324(a)(1)(A)(iv). That is the focus of criminal solicitation and facilitation too.
âIn concluding otherwise, the Ninth Circuit stacked the deck in favor of ordinary meaning. See 25 F. 4th, at 1109â1110; see also United States v. Hernandez-Calvillo, 39 F. 4th 1297, 1304 (CA10 2022) (âOur construction of [the verbs in clause (iv)] begins with their ordinary meaning, not their specialized meaning in criminal lawâ). But it should have given specialized meaning a fair shake. When words have several plausible definitions, context differentiates among them. That is just as true when the choice is between ordinary and specialized meanings, see, e.g., Corning Glass Works v. Brennan, 417 U. S. 188, 202 (1974) (âWhile a layman might well assume that time of day worked reflects one aspect of a jobâs âworking conditions,â the term has a different and much more specific meaning in the language of industrial relationsâ), as it is when a court must choose among multiple ordinary meanings, see, e.g., Muscarello v. United States, 524 U. S. 125, 127â128 (1998) (choosing between ordinary meanings of âcarryâ). Here, the context of these wordsâthe water in which they swimâindicates that Congress used them as terms of art.
âStatutory history is an important part of this context. In 1885, Congress enacted a law that would become the template for clause (iv). That law prohibited âknowingly assisting, encouraging or solicitingâ immigration under a contract to perform labor. Act of Feb. 26, 1885, ch. 164, §3, 23 Stat. 333 (1885 Act) (emphasis added). Then, as now, âencourageâ had a specialized meaning that channeled accomplice liability. See 1 Bouvier, Law Dictionary 30 (âabetâ means â[t]o encourage or set another on to commit a crimeâ); Blackâs Law Dictionary 6 (1891) (to âabetâ is â[t]o encourage, incite, or set another on to commit a crimeâ). And the words âassistingâ and âsoliciting,â which appeared alongside âencouragingâ in the 1885 Act, reinforce that Congress gave the word âencouragingâ its narrower criminal-law meaning. See Dubin v. United States, 599 U. S. ___, ___ (2023) (slip op., at 12) (a word capable of many meanings is refined by its neighbors, which often â âavoid[s] the giving of unintended breadth to the Acts of Congressâ â). Unsurprisingly, then, when this Court upheld the 1885 Act against a constitutional challenge, it explained that Congress âhas the power to punish any who assistâ in introducing noncitizens into the countryâwithout suggesting that the term âencouragingâ altered the scope of the prohibition. Lees v. United States, 150 U. S. 476, 480 (1893) (emphasis added).
âIn the ensuing decades, Congress both added to and subtracted from the âencouragingâ prohibition in the 1885 Act. Throughout, it continued to place âencouragingâ alongside âassistingâ and âsoliciting.â See Act of Mar. 3, 1903, §5, 32 Stat. 1214â1215; Act of Feb. 20, 1907, §5, 34 Stat. 900. Then, in 1917, Congress added âinduceâ to the string of verbs. Act of Feb. 5, 1917, §5, 39 Stat. 879 (1917 Act) (mak ing it a crime âto induce, assist, encourage, or solicit, or attempt to induce, assist, encourage, or solicit the importation or migration of any contract laborer . . . into the United Statesâ). Like âencourage,â the word âinduceâ carried solicitation and facilitation overtones at the time of this enactment. See Blackâs Law Dictionary 617 (1891) (defining âinducementâ to mean âthat which leads or tempts to the commission of crimeâ). In fact, Congress had just recently used the term in a catchall prohibition on criminal facilitation. See Act of Mar. 4, 1909, §332, 35 Stat. 1152 (âWhoever . . . aids, abets, counsels, commands, induces, or procures [the commission of an offense], is a principalâ (emphasis added)). And as with âencourage,â the meaning of âinduceâ was clarified and narrowed by its statutory neighbors in the 1917 Actââassistâ and âsolicit.â
âCongress enacted the immediate forerunner of the modern clause (iv) in 1952 and, in doing so, simplified the language from the 1917 Act. Most notably, the 1952 version dropped the words âassistâ and âsolicit,â instead making it a crime to âwillfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United States of . . . any alien . . . not lawfully entitled to enter or reside within the United States.â Immigration and Nationality Act, §274(a)(4), 66 Stat. 229. Three decades later, Congress brought 8 U. S. C. §1324(a)(1)(A)(iv) into its current formâstill without the words âassistâ or âsolicit.â Immigration Reform and Control Act of 1986, §112(a), 100 Stat. 3382 (making it a crime to âencourag[e] or induc[e] 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 lawâ).
âOn Hansenâs view, these changes dramatically broadened the scope of clause (iv)âs prohibition on encouragement. Before 1952, he says, the words âassistâ and âsolicitâ may have cabined âencourageâ and âinduce,â but eliminating them  severed any connection the prohibition had to solicitation and facilitation. Brief for Respondent 25â26. In other words, Hansen claims, the 1952 and 1986 revisions show that Congress opted to make âprotected speech, not conduct, a crime.â Id., at 27.
âWe do not agree that the mere removal of the words âassistâ and âsolicitâ turned an ordinary solicitation and facilitation offense into a novel and boundless restriction on speech. Hansenâs argument would require us to assume that Congress took a circuitous route to convey a sweepingâand constitutionally dubiousâmessage. The better understanding is that Congress simply âstreamlinedâ the pre-1952 statutory languageâwhich, as any nonlawyer who has picked up the U. S. Code can tell you, is a commendable effort. 40 F. 4th, at 1066 (opinion of Bumatay, J.). In fact, the streamlined formulation mirrors this Courtâs own description of the 1917 Act, which is further evidence that Congress was engaged in a cleanup project, not a renovation. See United States v. Lem Hoy, 330 U. S. 724, 727 (1947) (explaining that the 1917 Act barred âcontract laborers, defined as persons induced or encouraged to come to this country by offers or promises of employmentâ (emphasis added)); id., at 731 (describing the 1917 Act as a âprohibition against employers inducing laborers to enter the countryâ (emphasis added)). And critically, the terms that Congress retained (âencourageâ and âinduceâ) substantially overlap in meaning with the terms it omitted (âassistâ and âsolicitâ). LaFave §13.2(a). Clause (iv) is best understood as a continuation of the past, not a sharp break from it.
C
âHansenâs primary counterargument is that clause (iv) is missing the necessary mens rea for solicitation and facilitation. Brief for Respondent 28â31. Both, as traditionally understood, require that the defendant specifically intend  that a particular act be carried out. Supra, at 6. âEncourages or induces,â however, is not modified by any express intent requirement. Because the text of clause (iv) lacks that essential element, Hansen protests, it cannot possibly be limited to either solicitation or facilitation.
âOnce again, Hansen ignores the longstanding history of these words. When Congress transplants a common-law term, the â âold soilâ â comes with it. Taggart v. Lorenzen, 587 U. S. ___, ___â___ (2019) (slip op., at 5â6). So when Congress placed âencouragesâ and âinducesâ in clause (iv), the traditional intent associated with solicitation and facilitation was part of the package. That, in fact, is precisely how the federal aiding-and-abetting statute works. It contains no express mens rea requirement, providing only that a person who âaids, abets, counsels, commands, induces or procuresâ a federal offense is âpunishable as a principal.â 18 U. S. C. §2(a). Yet, consistent with âa centuries-old view of culpability,â we have held that the statute implicitly incorporates the traditional state of mind required for aiding and abetting. Rosemond v. United States, 572 U. S. 65, 70â71 (2014).
âClause (iv) is situated among other provisions that work the same way. Consider those that immediately follow it: The first makes it a crime to âengag[e] in any conspiracy to commit any of the preceding acts,â 8 U. S. C. §1324(a)(1)(A)(v)(I), and the second makes it a crime to âai[d] or abe[t] the commission of any of the preceding acts,â §1324(a)(1)(A)(v)(II). Neither of these clauses explicitly states an intent requirement. Yet both conspiracy and aiding and abetting are familiar common-law offenses that contain a particular mens rea. See Rosemond, 572 U. S., at 76 (aiding and abetting); Ocasio v. United States, 578 U. S. 282, 287â288 (2016) (conspiracy). Take an obvious example: If the words âaids or abetsâ in clause (v)(II) were considered in a vacuum, they could be read to cover a person who inadvertently helps another commit a §1324(a)(1)(A)  offense. But a prosecutor who tried to bring such a case would not succeed. Why? Because aiding and abetting implicitly carries a mens rea requirementâthe defendant generally must intend to facilitate the commission of a crime. LaFave §13.2(b). Since âencourages or inducesâ in clause (iv) draws on the same common-law principles, it too incorporates them implicitly.2
âStill, Hansen reiterates that if Congress had wanted to require intent, it could easily have said soâas it did elsewhere in clause (iv). The provision requires that the defendant encourage or induce an unlawful act and that the defendant âkno[w]â or âreckless[ly] disregardâ the fact that the act encouraged âis or will be in violation of law.â §1324(a)(1)(A)(iv). Yet while Congress spelled out this requirement, it included no express mens rea element for âencourages or induces.â Indeed, Hansen continues, the statute used to require that the encouragement or inducement be committed âwillfully or knowingly,â but Congress deleted those words in 1986. Brief for Respondent 30. Taken together, Hansen says, this evidence reflects that Congress aimed to make a defendant liable for âencouraging or inducingâ without respect to her state of mind.
âBut there is a simple explanation for why âencourages or inducesâ is not modified by an express mens rea requirement: There is no need for it. At the risk of sounding like a broken record, âencourageâ and âinduce,â as terms of art, carry the usual attributes of solicitation and facilitationâincluding, once again, the traditional mens rea. Congress  might have rightfully seen the express mens rea requirement as unnecessary and cut it in a further effort to streamline clause (iv). And in any event, the omission of the unnecessary modifier is certainly not enough to overcome the âpresumption of scienterâ that typically separates wrongful acts âfrom âotherwise innocent conduct.â â Xiulu Ruan v. United States, 597 U. S. ___, ___ (2022) (slip op., at 5); see also Elonis v. United States, 575 U. S. 723, 736â737 (2015).
âNor does the scienter applicable to a distinct element within clause (iv)âthat the defendant âkno[w]â or âreckless[ly] disregard . . . the fact thatâ the noncitizenâs âcoming to, entry, or residence is or will be in violation of lawââtell us anything about the mens rea for âencourages or induces.â Many criminal statutes do not require knowledge of illegality, but rather only â âfactual knowledge as distinguished from knowledge of the law.â â Bryan v. United States, 524 U. S. 184, 192 (1998). So Congressâs choice to specify a mental state for this element tells us something that we might not normally infer, whereas the inclusion of a mens rea requirement for âencourages or inducesâ would add nothing.
âIt bears emphasis that even if the Governmentâs reading were not the best one, the interpretation is at least â âfairly possibleâ ââso the canon of constitutional avoidance would still counsel us to adopt it. Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12). This canon is normally a valuable ally for criminal defendants, who raise the prospect of unconstitutional applications to urge a narrower construction. But Hansen presses the clause toward the most expansive reading possible, effectively asking us to apply a canon of â âconstitutional collision.â â 40 F. 4th, at 1059 (opinion of Bumatay, J.). This tactic is understandable in light of the odd incentives created by the overbreadth doctrine, but it is also wrong. When legislation and the Constitution brush up against each other, our task is to seek  harmony, not to manufacture conflict.3
IV
âSection 1324(a)(1)(A)(iv) reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law. So understood, the statute does not âprohibi[t] a substantial amount of protected speechâ relative to its âplainly legitimate sweep.â Williams, 553 U. S., at 292.
âStart with clause (iv)âs valid reach. Hansen does not dispute that the provision encompasses a great deal of nonexpressive conductâwhich does not implicate the First Amendment at all. Brief for Respondent 22â23. Consider just a few examples: smuggling noncitizens into the country, see United States v. Okatan, 728 F. 3d 111, 113â114 (CA2 2013); United States v. Yoshida, 303 F. 3d 1145, 1148â1151 (CA9 2002), providing counterfeit immigration documents, see United States v. Tracy, 456 Fed. Appx. 267, 269â270 (CA4 2011) (per curiam); United States v. Castillo-Felix, 539 F. 2d 9, 11 (CA9 1976), and issuing fraudulent Social Security numbers to noncitizens, see Edwards v. Prime, Inc., 602 F. 3d 1276, 1295â1297 (CA11 2010). A brief survey of the Federal Reporter confirms that these are heartland clause (iv) prosecutions. See 40 F. 4th, at 1072 (opinion of Bumatay, J.) (listing additional examples, including arranging fraudulent marriages and transporting noncitizens on boats). So the âplainly legitimate sweepâ of the provision is extensive.
âWhen we turn to the other side of the ledger, we find it pretty much blank. Hansen fails to identify a single prosecution for ostensibly protected expression in the 70 years  since Congress enacted clause (iv)âs immediate predecessor. Instead, he offers a string of hypotheticals, all premised on the expansive ordinary meanings of âencourageâ and âinduce.â In his view, clause (iv) would punish the author of an op-ed criticizing the immigration system, â[a] minister who welcomes undocumented people into the congregation and expresses the communityâs love and support,â and a government official who instructs âundocumented members of the community to shelter in place during a natural disaster.â Brief for Respondent 16â19. Yet none of Hansenâs examples are filtered through the elements of solicitation or facilitationâmost importantly, the requirement (which we again repeat) that a defendant intend to bring about a specific result. See, e.g., Rosemond, 572 U. S., at 76. Clause (iv) does not have the scope Hansen claims, so it does not produce the horribles he parades.
âTo the extent that clause (iv) reaches any speech, it stretches no further than speech integral to unlawful conduct.4 â[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.â Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected. Williams, 553 U. S., at 298. We have applied this principle many times, including to the promotion  Â
 of a particular piece of contraband, id., at 299, solicitation of unlawful employment, Pittsburgh Press Co. v. Pittsburgh Commân on Human Relations, 413 U. S. 376, 388 (1973), and picketing with the âsole, unlawful [and] immediate objectiveâ of âinduc[ing]â a target to violate the law, Giboney, 336 U. S., at 502. It applies to clause (iv) too.5
âHansen has no quibble with that conclusion to the extent that clause (iv) criminalizes speech that solicits or facilitates a criminal violation, like crossing the border unlawfully or remaining in the country while subject to a removal order. See §§1253(a), 1325(a), 1326(a). He agrees that these applications of §1324(a)(1)(A)(iv) are permissibleâin fact, he concedes that he would lose if clause (iv) covered only solicitation and facilitation of criminal conduct. Tr. of Oral Arg. 61â62. But he resists the idea that the First Amendment permits Congress to criminalize speech that solicits or facilitates a civil violationâand some immigration violations are only civil. Brief for Respondent 38. For instance, residing in the United States without lawful status is subject to the hefty penalty of removal, but it generally does not carry a criminal sentence. See Arizona v. United States, 567 U. S. 387, 407 (2012).
âCall this the âmismatchâ theory: Congress can impose criminal penalties on speech that solicits or facilitates a criminal violation and civil penalties on speech that solicits or facilitates a civil violationâbut it cannot impose criminal penalties on speech that solicits or facilitates a civil violation. See Tr. of Oral Arg. 62â63; Brief for Eugene Volokh as Amicus Curiae 5â7. If this theory is sound, then clause  (iv) reaches some expression that is outside the speech-integral-to-unlawful-conduct exception. Of course, âthat speech is not categorically unprotected does not mean it is immune from regulation, but only that ordinary First Amendment scrutiny would apply.â Brief for Respondent 44.
âWe need not address this novel theory, because even if Hansen is right, his overbreadth challenge fails. To succeed, he has to show that clause (iv)âs overbreadth is âsubstantial . . . relative to [its] plainly legitimate sweep.â Williams, 553 U. S., at 292. As we have discussed, the provision has a wide legitimate reach insofar as it applies to nonexpressive conduct and speech soliciting or facilitating criminal violations of immigration law. Even assuming that clause (iv) reaches some protected speech, and even assuming that its application to all of that speech is unconstitutional, the ratio of unlawful-to-lawful applications is not lopsided enough to justify the âstrong medicineâ of facial invalidation for overbreadth. Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). In other words, Hansen asks us to throw out too much of the good based on a speculative shot at the bad. This is not the stuff of overbreadthâas-applied challenges can take it from here.
*ââ*ââ*
âThe judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
1  Although the statutory terms are not coextensive, we use âalienâ and ânoncitizenâ as rough equivalents here. See 8 U. S. C. §1101(a)(3); Barton v. Barr, 590 U. S. ___, ___, n. 2 (2020) (slip op., at 3, n. 2).
2  The Ninth Circuit believed that the Governmentâs âsolicitation and facilitationâ reading of clause (iv) would create impermissible surplusage with the aiding-and-abetting provision in clause (v)(II). 25 F. 4th 1103, 1108â1109 (2022). Hansen does not press that argument before this Courtâfor good reason. Clause (iv) criminalizes the aiding and abetting of an immigration violation, whereas clause (v)(II) prohibits the aiding and abetting of âany of the preceding acts.â In other words, clause (v)(II) applies to aiding and abetting a first-line facilitator. Another difference: Clause (iv) criminalizes not only facilitation, but solicitation too.
3 Â The canon of constitutional avoidance is a problem for the dissent. Attempting to overcome it, Justice Jackson suggests that the canon has less force in the context of an overbreadth challenge. Post, at 17. Our cases offer no support for that proposition. In this context, as in others, ordinary principles of interpretation apply.
4  We also note that a number of clause (iv) prosecutions (like Hansenâs) are predicated on fraudulent representations through speech for personal gain. See, e.g., United States v. Sineneng-Smith, 982 F. 3d 766, 776 (CA9 2020); United States v. Kalu, 791 F. 3d 1194, 1198â1199 (CA10 2015). â[F]alse claims [that] are made to effect a fraud or secure moneys or other valuable considerationsâ are not protected by the First Amendment. United States v. Alvarez, 567 U. S. 709, 723 (2012) (plurality opinion). These examples increase the list of lawful applications.
5 Â Overbreadth doctrine trafficks in hypotheticals, so we do not (and cannot) hold that all future applications of clause (iv) will be lawful, nor do we suggest that they will necessarily fall into the speech-integral-to-conduct category. That would require a crystal ball. Nothing in our opinion today precludes a litigant from bringing an as-applied challenge to clause (iv) in the futureâwhether based on the First Amendment or another constitutional constraint.
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Concurrence
SUPREME COURT OF THE UNITED STATES
_________________
No. 22â179
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UNITED STATES, PETITIONER v. HELAMAN HANSEN
on writ of certiorari to the united states court of appeals for the ninth circuit
âJustice Thomas, concurring.
âI join the Courtâs opinion in full. I write separately to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role. The facial overbreadth doctrine âpurports to grant federal courts the power to invalidate a lawâ that is constitutional as applied to the party before it â âif a substantial number of its applications are unconstitutional, judged in relation to the statuteâs plainly legitimate sweep.â â Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 2) (quoting United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (Thomas, J., concurring) (slip op., at 1)). As I have explained, this doctrine âlacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges,â and distorts the judicial role. Id., at ___ (slip op., at 9).
âThere is no question that the First Amendment does not shield respondentâs scheme from prosecution under 8 U. S. C. §1324(a)(1)(A)(iv), which prohibits âencourag[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.â Respondent defrauded nearly 500 aliens by telling them that they could become U. S. citizens through  adult adoption; he charged them up to $10,000 apiece, knowing full well that his scheme would not lead to citizenship. The Ninth Circuit even acknowledged below that âit is clear,â both âfrom previous convictions under the statute . . . and likely from [respondentâs] conduct here, that [§1324(a)(1)(A)(iv)] has at least some âplainly legitimate sweep.â â 25 F. 4th 1103, 1106â1107 (2022).
âYet, instead of applying Congressâ duly enacted law to respondent, the Ninth Circuit held the statute unconstitutional under this Courtâs facial overbreadth doctrine. Specifically, it took the doctrine as license to âspeculate about imaginary cases and sift through an endless stream of fanciful hypotheticals,â from which it concluded that the statute may be unconstitutional as applied to other (hypothetical) individuals in other (hypothetical) situations. 40 F. 4th 1049, 1071 (2022) (Bumatay, J., dissenting from denial of rehearing en banc) (internal quotation marks omitted). It then tallied up those hypothetical constitutional violations and determined that they were âsubstantialâ enough to warrant holding the law unconstitutional in toto. 25 F. 4th, at 1109â1111. That line of reasoning starkly demonstrates that this Courtâs facial overbreadth doctrine offers a license for federal courts to act as âroving commissions assigned to pass judgment on the validity of the Nationâs laws.â Broadrick v. Oklahoma, 413 U. S. 601, 610â611 (1973) (majority opinion of White, J.).
âSuch âroving commissionsâ are hardly a new idea. When they met in 1787, the Constitutionâs Framers were well aware of a body that wielded such power: the New York Council of Revision (Council). Created by the New York Constitution of 1777, the Council consisted of the Governor, the Chancellor, and the judges of the New York Supreme Court. 2 B. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1328, 1332 (2d ed. 1878). Noting that âlaws inconsistent with the spirit of this constitution, or with the public  good, may be hastily and unadvisedly passed,â section III of the New York Constitution required the two Houses of the New York Legislature to present âall bills which have passed the senate and assemblyâ to the âcouncil for their revisal and consideration.â Ibid. The Councilâs power âto revise legislationâ meant that, if it âobjected to any measure of a bill, it would return a detailed list of its objections to the legislature,â which âcould change the bill to conform to those objections, overrideâ them by a two-thirds vote of both Houses, âor simply let the bill die.â J. Barry, Comment: The Council of Revision and the Limits of Judicial Power, 56 U. Chi. L. Rev. 235, 245 (1989) (Barry) (emphasis deleted).1 The grounds for the Councilâs vetoes âranged from an act being âinconsistent with the spirit of the Constitutionâ to an act being passed without âthe persons affected thereby having an opportunity of being heardâ â to an act being â âinconsistent with the public good.â â Id., at 245â246 (alteration and footnote omitted).
âAt first, the Council was a well-respected institution, and several prominent delegates to the Philadelphia Convention sought to replicate it in the Federal Constitution. Resolution 8 of the Virginia Plan proposed a federal council of revision composed of âthe Executive and a convenient number of the National Judiciaryâ that would have âauthority to examine [and veto] every act of the National Legislature before it shall operate.â 1 Records of the Federal Convention of 1787, §8, p. 21 (M. Farrand ed. 1911) (Farrand). The Councilâs veto would âbe final . . . unless the Act of the National Legislature be again passed.â Ibid.; see also J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 30â33 (2010).
âThe proponents of a council were clear that they sought  to empower judges to pass upon not only the constitutionality of laws, but also their policy. One of the councilâs main supporters, James Wilson, stated that the council would share the New York Councilâs power of reviewing laws, not only on constitutional grounds, but also to determine if they were âunjust,â âunwise,â âdangerous,â or âdestructive.â 2 Farrand 73. Such a power was needed, according to Wilson, because the ordinary judicial power of refusing to apply unconstitutional laws in cases or controversies did not include the authority to decline to give effect to a law on policy grounds. Ibid. The other leading proponent of a council, James Madison, similarly argued that the council would veto âlaws unwise in their principle, or incorrect in their form.â 1 id., at 139. For Madison, the council was necessary to remedy the defect caused by the limits of judicial power: Judges could not prevent the âpursuit of . . . unwise & unjust measures.â 2 id., at 74. In that vein, George Mason similarly argued that a council was needed to prevent âunjust oppressive or perniciousâ laws from taking effect. Id., at 78.
âSignificantly, proponents of a council rejected the premise that judicial power included a power to refuse to apply a law for policy reasons. In fact, â[n]either side thought judges would or should be authorized to make policyâwhether couched in the language of justice or rightsâthrough their exercise of the judicial power. . . . [T]he debate over a council of revision was made necessary . . . because . . . not a single delegate on either side of the debate proposed or supported having judges perform a policymaking role from the bench.â J. Anderson, Learning From the Great Council of Revision Debate, 68 Rev. Politics 79, 99â100 (2006). From that shared premise, the councilâs proponents argued that such an institution was needed precisely because it would be incompatible with judicial duty to take policy concerns into account in adjudicating cases. See J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933,  963 (2018).2
âDespite the support of respected delegates like Wilson and Madison, the Convention voted against creating a federal council of revision on four different occasions. P. Hamburger, Law and Judicial Duty 511 (2008). No other proposal was considered and rejected so many times. Ibid. Like the councilâs supporters, opponents of the proposal understood that the judicial power is only the authority to âresolve private disputes between particular parties,â rather than âmatters affecting the general public.â Barry 255. Working from that shared premise, they reasoned that it was â âquite foreign from the nature of [the judicial] office to make them judges of the policy of public measures,â â as â âno maxim was better establishedâ than that âthe power of making ought to be kept distinct from that of expounding, the law.â â Ibid. (quoting 1 Farrand 97â98 (E. Gerry); 2 id., at 75 (C. Strong)); see also 1 id., at 140 (J. Dickinson). Indeed, opponents observed that âthe Judgesâ were âof all men the most unfit toâ have a veto on laws before their enactment. 2 id., at 80 (J. Rutledge). This was so not only because judges could not be âpresumed to possess any peculiar knowledge of the mere policy of public measures,â id., at 73 (N. Ghorum), but also because, to preserve judicial integrity, they âought never to give their opinion on a law till it comes before themâ as an issue for decision in a concrete case or controversy, id., at 80 (J. Rutledge); see also Perez v. Mortgage Bankers Assn., 575 U. S. 92, 121 (2015) (Thomas, J., concurring in judgment) (â[J]udicial involve ment in such a council would foster internal biasesâ). Opponents thus concluded that to include judges in the policy decisions inherent in the legislative process would be a âdangerous innovation,â one that would erode public confidence in their ability to perform their âproper official character.â 2 Farrand 75â76 (L. Martin); see also id., at 77 (â[T]he Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag[ainst] popular measures of the Legislatureâ).
âThe later history of the New York Council of Revision demonstrates the wisdom of the Framersâ decision. The Council naturally became politicized through its intrusive involvement in the legislative process. Over the course of its existence, it returned 169 bills to the legislature; the legislature, in turn, overrode only 51 of those vetoes and reenacted at least 26 bills with modifications. Barry 245. Moreover, â[t]he Council did not shrink from tough stands on controversial or politically charged issues.â Id., at 246. For example, early in its existence, it vetoed a bill barring those convicted of adultery from remarrying and one that declared Loyalists aliens. Ibid. Decades later, it very nearly blocked the bill authorizing the Erie Canalâs construction for policy reasons. P. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation 197â199 (2005). Some members of the Council opposed the bill due to âconcern[s] about committing the state to this huge project before public opinion was more clearly and more emphatically in favor.â Id., at 198. Others were concerned that the legislation gave the canal commission arbitrary powers. Ibid. The canal legislationâone of the most important measures in the Nationâs historyâsurvived the Councilâs review only because Chancellor James Kent changed his deciding vote at the last minute, seemingly on a whim. Id., at 199.
âThe Council contributed to its own abolition in 1820,  when it vetoed a bill passed by the legislature that called for a convention to revise New Yorkâs Constitution. 1 C. Lincoln, The Constitutional History of New York 623â626 (1906) (Lincoln). The State Assembly then issued a report lambasting âthe Council for usurping the legislatureâs role as the democratic representative of the peopleâ; the legislature subsequently enacted a new bill that succeeded in calling for a constitutional convention. Barry 247; Lincoln 626â629. The same sentiment arose at the convention when, echoing arguments that had also been made in Philadelphia against a federal council of revision, opponents of the Council argued that it had â âusurped the power of judging the expediency as well as the constitutionality of bills passed by the legislatureâ â and that it had â âin fact become a third branch of the legislature.â â Barry 247 (quoting N. Carter & W. Stone, Reports of the Proceedings and Debates of the Convention of 1821, pp. 55, 79 (1821)). Unsurprisingly, the Council was abolished, and New Yorkâs 1821 Constitution placed the veto power solely in the Governor. Barry 248.
âWhen courts apply the facial overbreadth doctrine, they function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner. Along the way, courts must examine the sum total of the lawâs application to people who are not parties to any proceeding; courts then weigh the lawâs various applications to determine if any unconstitutional applications outweigh the lawâs constitutional sweep or might âchillâ protected speech. That is nothing short of a society-wide policy determination of the sort that legislatures perform. Yet, the Court has never even attempted to ground this doctrine âin the text or history of the First Amendment.â Sineneng-Smith, 590 U. S., at ___â___ (concurring opinion) (slip op., at 2â3). Instead, it has  justified it âsolely by reference toâ yet another layer of âpolicy considerations and value judgmentsâ about âwhat serves the public good.â Id., at ___â___ (slip op., at 3â4). As the debate over the federal council of revision demonstrates, this approach is fundamentally inconsistent with judicial duty.
âThis case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law.3 In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.
Notes
1 Â The term âreviseâ was understood to mean â[t]o review.â 2 S. Johnson, A Dictionary of the English Language (4th ed. 1773); N. Bailey, A Universal Etymological English Dictionary (22 ed. 1770) (âto review, to look over againâ).
2  Later statements of the proposed councilâs supporters confirm their understanding that the judicial station is incompatible with making policy judgments. See Moodie v. Ship Phoebe Anne, 3 Dall. 319 (1796) (Elsworth, C. J.) (âSuggestions of policy and conveniency cannot be considered in the judicial determination of a question of rightâ); 8 Writings of James Madison 387 (G. Hunt ed. 1908) (â[Q]uestions of policy and expediency, are unsusceptible of judicial cognizance and decisionâ).
3  The facial overbreadth doctrine is but one manifestation of the Courtâs larger drift away from the limited judicial station envisioned by the Constitution. See J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 36â37 (2010). Justices have long noted that doctrines tasking judges with passing upon the policy of laws in the abstract resemble the council of revision the Framers rejected. See, e.g., Lewis v. New Orleans, 415 U. S. 130, 136 (1974) (Blackmun, J., joined by Burger, C. J., and Rehnquist, J., dissenting) (overbreadth and vagueness doctrines); see also Trimble v. Gordon, 430 U. S. 762, 778 (1977) (Rehnquist, J., dissenting) (suspect classifications under the Fourteenth Amendment); Griswold v. Connecticut, 381 U. S. 479, 513â515 (1965) (Black, J., joined by Stewart, J., dissenting) (substantive due process); Goldberg v. Kelly, 397 U. S. 254, 273â274 (1970) (Black, J., dissenting) (due process for welfare benefits); Saia v. New York, 334 U. S. 558, 571 (1948) (Jackson, J., dissenting) (review of time, place, and manner speech regulations).
TOP
Dissent
SUPREME COURT OF THE UNITED STATES
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No. 22â179
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UNITED STATES, PETITIONER v. HELAMAN HANSEN
on writ of certiorari to the united states court of appeals for the ninth circuit
âJustice Jackson, with whom Justice Sotomayor joins, dissenting.
âAt bottom, this case is about how to interpret a statute that prohibits âencourag[ing] or induc[ing]â a noncitizen âto come to, enter, or reside in the United Statesâ unlawfully. 8 U. S. C. §1324(a)(1)(A)(iv). The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigrationâand it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provisionâs text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century.
âIt is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congressâs choices. Moreover, by acquiescing to the Governmentâs newly minted pitch to narrow this statute in order to save it,1 the majority undermines the goal of the overbreadth doctrine, which aims to keep overly broad statutes off the  books in order to avoid chilling constitutionally protected speech. See Dombrowski v. Pfister, 380 U. S. 479, 486â487 (1965). Because the majorityâs interpretation of §1324(a)(1)(A)(iv) diverges from the text and history of the provision, and simultaneously subverts the speech-protective goals of the constitutional doctrine plainly implicated here, I respectfully dissent.
I
âSection 1324(a)(1)(A)(iv) makes it a federal crime to âencourag[e] or induc[e]â a noncitizen âto 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.â For ease of reference, I will refer to this as the âencouragement provision.â
âRespondent Hansen argues that the encouragement provision is unconstitutional under our First Amendment overbreadth doctrine, and the Ninth Circuit below agreed. Neither the Government nor the majority disputes that conclusion if the statute is read according to its plain terms. And, indeed, when read literally, the encouragement provision prohibits so much protected speech that it appears to qualify as overbroad under our precedents.
A
âA statute is overbroadâand thus facially invalidâif âa substantial number of its applications are unconstitutional, judged in relation to the statuteâs plainly legitimate sweep.â United States v. Stevens, 559 U. S. 460, 473 (2010) (internal quotation marks omitted). The overbreadth inquiry thus generally requires comparing the First Amendment- protected expression that a statute impermissibly punishes, on the one hand (letâs call that âcategory oneâ), with the unprotected speech and conduct that the statute validly prohibits, on the other (âcategory twoâ).
âStarting with category one: With respect to the sweep of  the plain text of the encouragement provision, there is no dispute that, â[i]n ordinary parlance, âinduceâ means â[to] lead on; to influence; to prevail on; to move by persuasion or influence,â â and â âencourageâ means to âinspire with courage, spirit, or hope.â â Ante, at 9. Thus, on its face, the encouragement provisionâs use of the terms âencourageâ and âinduceâ seems to encompass any and all speech that merely persuades, influences, or inspires a noncitizen to come to, enter, or reside in this country in violation of law.
âIf speech of this nature is, in fact, sufficient to trigger potential prosecution under this statute, the provision would put all manner of protected speech in the Governmentâs prosecutorial crosshairs. It would reach, for example, the grandmother who says she misses her noncitizen grandchild, leading the grandchild to move illegally to the United States. It would also apply to the doctor who informs a noncitizen patient that a necessary medical treatment is more readily available in the United States, influencing the patient to stay beyond the expiration of his visa to await treatment. The college counselor who advises an undocumented student that she can obtain a private scholarship to attend college in the United States, inspiring the student to reside here, would also fall within the scope of the statute.
âThe encouragement provision, on this broad reading, would also punish abstract advocacy of illegal conduct, even though such speech is plainly permissible under the First Amendment. For instance, the plain text of the statute appears to prohibit a person from saying to a noncitizen who has no authorization to reside here, âI encourage you to live in the United States.â But that speech is plainly protected. See United States v. Williams, 553 U. S. 285, 298â300 (2008). In Williams, this Court explained that âabstract advocacyâ of child pornographyâincluding the phrase âI encourage you to obtain child pornographyââqualifies as protected speech, even though the ârecommendation of a  particular piece of purported child pornography with the intent of initiating a transferâ is properly proscribed by federal statute. Ibid. (internal quotation marks omitted); see also, e.g., Ashcroft v. Free Speech Coalition, 535 U. S. 234, 253 (2002) (âThe mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning itâ).
B
âThe Government does not dispute that the encouragement provision is unconstitutional as overbroad if it is read according to its plain text, thereby reaching these various fact patterns. This point is worth repeating: Under the broad interpretation of the statute, the Government does not even attempt to argue that the unconstitutional applications in category one are not âsubstantial,â Stevens, 559 U. S., at 473, in relation to the constitutional applications that fall in category two.2 Rather, the Government argues that the statute can be saved from falling victim to todayâs overbreadth challenge by construing the broad terms of the encouragement provision narrowlyâand, in particular, reading them as authorizing prosecution only for solicitation or facilitation.
âCiting this Courtâs general duty âto seek harmony, not to manufacture conflict,â when âlegislation and the Constitution brush up against each other,â ante, at 16â17, the majority obliges. But this Court also has a duty to refrain from taking the legislative reins and revising the text of a statute. It is well established that â[w]e will not rewrite a law to conform it to constitutional requirements.â Stevens, 559 U. S., at 481 (emphasis added; alterations and internal quotation marks omitted). Accordingly, and in the overbreadth  context in particular, the Court âmay impose a limiting construction on a statute only if it is âreadily susceptibleâ to such a construction.â Ibid. (some internal quotation marks omitted).
âApplication of our ordinary principles of statutory interpretation here reveals that the encouragement provision is not susceptible to the narrow solicitation or facilitation construction that the majority adopts, as explained below. Thus, this statute is overbroad and facially invalid under the First Amendment.
II
âThe majority contends that the encouragement provision uses â âencourageâ â and â âinduceâ â in a âspecialized,  criminal-law sense,â under which those words are essentially synonymous with solicitation and facilitation and carry certain narrowing features of those crimes. Ante, at 9. But that construction of the statute is untenable for the reasons that follow.
A
âThe majority starts its interpretation of the encouragement provision âwith some background on solicitation and facilitation,â ante, at 6, instead of addressing any of the terms in the encouragement provision itself. This is the first clue that the majorityâs statutory analysis is unusual. Ordinarily, we start with the text of the statute being interpreted. Yet the words âsolicitationâ and âfacilitationâ appear nowhere in the encouragement provision. (As the majority notes, facilitation is âalso called aiding and abetting,â ibid.âanother term that is absent from the encouragement provision.)
âThe majority goes on to explain that the terms that do appear in the encouragement provisionââencourageâ and âinduceââare also often used (with other words) to define âsolicitationâ and âfacilitation.â Ante, at 6â8. For example,  the majority notes that one legal dictionary âdefines âabetâ as â[t]o encourage or set another on to commit a crime,â â and it cites other legal dictionaries that also use âencourageâ to define âabet.â Ante, at 7. Similarly, the majority observes that the federal âban on soliciting a crime of violence . . . penalizes those who âsolici[t], comman[d], induc[e], or otherwise endeavo[r] to persuadeâ another person âto engage in [the unlawful] conduct.â â Ibid. Because the terms âencourageâ and âinduceâ are used to define the crimes of solicitation and facilitation, the majority concludes that the statutory terms â â[e]ncourageâ and âinduceâ have well-established legal meaningsâ that âincorporat[e] common-law liability for solicitation or facilitation.â Ante, at 9.
âThis contentionâthat, because the broad terms that Congress actually used are sometimes spotted in the definition of other, narrower words, the statuteâs broad terms are limited by the meaning of those narrower words and those wordsâ characteristicsâis puzzling. The majority cites no precedent for this novel approach to interpreting words in a statute. And its logic falls apart in light of the English lexicon and how dictionary definitions tend to work.
âBroad words are often used to define narrower ones. So the fact that a word is used to help define another word does not necessarily mean that the former is synonymous with the latter or incorporates all of its connotations. For instance, the word âfurnitureâ might be used in the definition of a âchair,â but not all pieces of furniture are chairs, nor do all pieces of furniture have four legs or other common chair-like characteristics. Similarly, âto moveâ is used to define âto walk,â âto run,â and âto fly.â But that does not make these four terms interchangeable.
âSo, too, here. The phrase âencourages or inducesâ is not synonymous with âsolicitsâ or âfacilitatesâ (or âaids and abetsâ). For example, among the other characteristics of solicitation and facilitation (discussed further in Part IIâC, infra) is the fact that they require âan intent to bring about  a particular unlawful act,â ante, at 6 (emphasis added). But the encouragement provision hints at no such thing. It simply prohibits âencourag[ing] or induc[ing]â a noncitizen âto 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.â §1324(a)(1)(A)(iv). Nor does the ordinary meaning of âencourages or inducesâ carry the intent requirement that solicitation and facilitation do: By describing the attractions of my hometown, for instance, I might end up inducing a listener to move there, even if that was not my intent.
âIt is also telling that the very next subdivision of §1324(a)(1)(A) expressly prohibits âaid[ing] or abet[ting] the commission of any of the preceding acts.â §1324(a)(1)(A)(v)(II). That provision indicates that Congress knows how to create an aiding-and-abetting prohibition when it wants toâand that it did not do so in §1324(a)(1)(A)(iv).3
âThe majorityâs mere observation that the encouragement provisionâs terms are used to define solicitation and facilitation is thus insufficient to establish that the terms mean the same thing or incorporate the same features.
B
âThe majority next turns to â[s]tatutory historyâ to support its transformation of the broad encouragement provision that Congress wrote into a narrow solicitation or  aiding-and-abetting prohibition. Ante, at 11. I agree that the history of a statute can reveal Congressâs intent to use terms in a narrower or specialized manner. But, here  again, the particulars matter. And the history of this particular statute only underscores that it cannot be read as the majority wishes. At every turn, Congress has sought to expand the reach of this criminal law, including by deleting the terms and mens rea requirement that the majority attempts to read back into the statute.
1
âThe history of the encouragement provision is a tale of expansion. Up first was an 1885 law focused specifically on contract labor. Ch. 164, 23 Stat. 332. It made âknowingly assisting, encouraging or soliciting the migration or importation of â a noncitizen into the United States âto perform labor or service of any kind under contract or agreementâ unlawful. §3, id., at 333. Congress revised this prohibition in 1917, to add âinduce.â §5, 39 Stat. 879. Thus, as of the early 20th century, it was a misdemeanor âto induce, assist, encourage, or solicit . . . the importation or migration of any contract laborer,â or to attempt to do the same. Ibid.
âSignificantly for present purposes, in 1952, Congress deleted the statuteâs references to solicitation and assistanceâleaving âencouragesâ and âinducesâ to stand alone. 66 Stat. 229. What is more, Congress expanded the prohibition to all unlawful entry, not merely contract labor. Ibid. And it also ratcheted up the punishment. Ibid. So amended, the statute made it a felony to âwillfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United Statesâ of any noncitizen who had not been âduly admittedâ or who was not âlawfully entitled to enter or reside within the United States.â Ibid.
âCongress enacted the current version of the encouragement provision in 1986. It removed the mens rea requirement relating to the encouragement or inducement elementâexcising from the statute that a violator must âwillfully or knowinglyâ encourage or induce a noncitizen to  violate the immigration lawsâwhile inserting a mens rea requirement for knowledge or reckless disregard of the noncitizenâs immigration status. See Immigration Reform and Control Act of 1986, §112(a), 100 Stat. 3381â3382. Simultaneously, and for the first time, Congress made it a crime to encourage or induce an unauthorized noncitizen not merely to enter the United States, but also to encourage or induce such a person to âresideâ here unlawfully. Ibid.
âFinally, in 1996, Congress crafted a separate penalty enhancement for certain kinds of violations. It raised the maximum punishment from 5 years to 10 years of imprisonment if the offender violates the encouragement provision âfor the purpose of commercial advantage or private financial gain.â §1324(a)(1)(B)(i); see Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §203(a), 110 Stat. 3009â565.
âAs these developments illustrate, Congress has repeatedly revisited the scope of the encouragement provision. And, in so doing, it has consistently expanded the reach and severity of this criminal law from its modest 1885 origins. Most notably, the particular amendments that Congress has made to the encouragement provision demonstrate its intent to specifically reject the pillars of the majorityâs holding.
âTo reiterate: The terms âsolicitâ and âassistâ appeared in the text of the statute between 1885 and 1952, at which point Congress removed them. Likewise, between 1952 and 1986, violating this statute required that the speaker âwillfully or knowinglyâ encourage or induce a noncitizen to transgress the immigration laws. But in 1986, Congress deleted this primary mens rea requirement.
2
âThe majorityâs efforts to spin the encouragement provisionâs enlightening enactment history in favor of the majorityâs narrow interpretation are unavailing.
 âThe majority first points out that the 1885 version of the encouragement provision criminalized âknowingly assisting, encouraging or solicitingâ certain immigration. §3, 23 Stat. 333 (emphasis added); see ante, at 11. Because the term âencouragingâ was placed alongside âassistingâ and âsolicitingâ in this precursor provision, the majority maintains that the term âencouragingâ is narrowed by the canon of noscitur a sociis, âwhich counsels that a word is given more precise content by the neighboring words with which it is associated.â Williams, 553 U. S., at 294; see ante, at 11. In Williams, the Court (in an opinion by Justice Scalia) reasoned that, â[w]hen taken in isolation,â the broad term â âpromotesâ â is âsusceptible of multiple and wide- ranging meanings,â but that, âin a list that includes âsolicits,â âdistributes,â and âadvertises,â [it] is most sensibly read to mean the act of recommending purported child pornography to another person for his acquisition.â 553 U. S., at 294â295.
âBut, as the majority here ultimately goes on to acknowledge, ante, at 12, the statutory word âencouragingâ was not actually accompanied by the narrower terms âsolicitingâ and âassistingâ throughout the course of this statuteâs history. And for the history to be meaningfully referenced, the state of the statute must be considered over time, not just at particular points in which words that seem to support a particular reading might have appeared. The delta between the purportedly narrow version of the statute that the majority points to, and what later happened to the statutory text, is importantâand there is no dispute that Congress later removed the terms âsolicitingâ and âassistingâ from the encouragement provision, leaving âencouragingâ and âinducingâ to stand âin isolation,â 553 U. S., at 294. See ante, at 13. Tracing the history over time clearly establishes that Congress deleted the very narrowing terms that  the majority now reads back into the statute.4
âThe majority brushes off Congressâs revision by speculating that Congress was merely âengaged in a cleanup projectâ and was just âstreamlin[ing]â the statutory language. Ibid. This contention, however, gets our ordinary presumption in statutory interpretation cases precisely backwards. We âusually presume differences in language . . . convey differences in meaning,â absent some indication from Congress to the contrary. BNSF R. Co. v. Loos, 586 U. S. ___, ___ (2019) (slip op., at 10) (internal quotation marks omitted). Thus, we have found the presumption overcome where, for example, Congress has expressly âbilledâ the changes as âeffect[ing] only â[t]echnical [a]mendments.â â Id., at ___ (slip op., at 9).
âHere, the majority points to no signal from Congress that it sought to change the encouragement provisionâs language without changing its meaning. It seems that the only support the majority can muster for its âcleanup projectâ theory is a 1947 Supreme Court case that at several points refers to the statute as a prohibition on âencourag[ing]â or âinduc[ing]â certain unlawful immigration. Ante, at 13 (citing United States v. Lem Hoy, 330 U. S. 724 (1947)). From this, the majority infers that, when Congress amended the encouragement provision five years later to remove the words âsolicitâ and âassist,â it must have been adopting Lem Hoyâs shorthand characterization of the statute. But the majority  fails to support this connectionâtenuous on its faceâwith any evidence that Congress actually consulted our 1947 decision when it drafted the 1952 amendments, or anything else that might establish the primary significance that the majority ascribes to our decisionâs phrasing.
âThe majority similarly characterizes Congressâs decision to remove the intent requirement from the statute in 1986 as âa further effort to streamlineâ the encouragement provision. Ante, at 16. In other words, the Court today holds that Congressâs removal of âwillfully or knowinglyâ in the 1986 amendments did not change the mens rea required to violate this statute. But the majority offers no support at all for its view that Congress didnât really mean for the amendment to effect any substantive change. Instead, it conjures up its own âsimple explanationâ: There was âno needâ for an explicit mens rea because âencourageâ and âinduceâ carry the mens rea associated with solicitation and facilitation. Ante, at 15; see also ante, at 14 (reasoning that Congressâs use of âencouragesâ and âinducesâ brought along the âold soilâ of âthe traditional intent associated with solicitation and facilitationâ (internal quotation marks omitted)). Of course, this argument merely assumes that Congress intended for âencourageâ and âinduceâ as they appear in the encouragement provision to mean âsolicitâ and âfacilitateâ; it is a repackaging of the majorityâs unwarranted conflation of those terms. See Part IIâA, supra.
âThe majority also invokes the presumption that a criminal law contains an intent requirement even where Congress does not explicitly include one. Ante, at 15â16. But, here, the statutory history undermines that presumption. Congress most certainly focused on the mens rea question because it not only decided to remove âwillfully or knowinglyâ from the statute, it did so while inserting a separate mens rea requirement for the knowledge of the noncitizenâs immigration status. The confluence of these choices implies  that Congressâs removal of the primary mens rea requirement was deliberate. And, when this deliberate choice is considered alongside the history of the provisionâs significant expansions, there is ample cause to think that Congress intended a substantive change in meaning.
C
âOther features of the encouragement provision (beyond its plain text and historical development) also suggest that Congress did not mean for the statute to be construed in accordance with established characteristics of solicitation or aiding and abetting. These features further highlight the poor fit between this statute and the narrow solicitation/aiding-and-abetting box into which the majority tries to squeeze Congressâs broad language.
âRecall that, in 1986, Congress made it a crime to encourage or induce a noncitizen not just to âcome toâ or âenterâ the United States, but also to âresideâ in this country. 100 Stat. 3382; supra, at 8â9.5 As the majority notes, while it is a crime for a noncitizen to enter the United States illegally, it is generally not a crimeâjust a civil violationâto remain in the United States without lawful status, such as when a noncitizen overstays a visitor or student visa. See Arizona v. United States, 567 U. S. 387, 407 (2012); see ante, at 19. Thus, the encouragement provision on its face  appears to criminally punish someone who merely encourages or induces a civil violation.6
âThat feature of the provision does not sit easily with its categorization as a solicitation or facilitation statute, because, ordinarily, a person may only be held criminally liable for aiding and abetting or solicitation when the underlying offense is itself a crime. Aiding-and-abetting liability is âa centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.â Rosemond v. United States, 572 U. S. 65, 70 (2014) (citing J. Hawley & M. McGregor, Criminal Law 81 (1899)); see also 18 U. S. C. §2(a) (the general federal aiding-and-abetting statute, providing that someone who âaids, abets, counsels, commands, induces or procuresâ the commission of a federal crime âis punishable as a principalâ). As for solicitation, at common law, the solicited offense had to be a felony or a serious misdemeanor; otherwise, âthe solicitor [was] guilty of no offense.â 1 J. Ohlin, Whartonâs Criminal Law §9:2 (16th ed. 2021) (Whartonâs). Today, âin some jurisdictions, the offense solicited may be a felony or a misdemeanor; but in others, it can only be a felonyââeither way, though, the underlying offense must be criminal. Ibid. (footnotes omitted); see also 18 U. S. C. §373 (the general federal solicitation statute, which is limited to the solicitation of violent felonies).
âHere, by contrast, the encouragement provision on its face appears to permit a person to be punished as a felon for merely encouraging a civil violation. Thus, the statute  is not an easy fit for the solicitation and facilitation role in which the majority has cast it.
âThis statute is fundamentally different from aiding-and-abetting liability and solicitation in other ways as well. As noted, aiding-and-abetting liability is a form of vicarious liabilityâi.e., a way in which a person becomes liable for the crimes of the principal. Likewise, for solicitation, âthe punishment . . . is usually geared to . . . the punishment provided for the offense solicited.â Whartonâs §9:11; see, e.g., 18 U. S. C. §373(a) (providing, for example, punishment of ânot more than one-half the maximum term of imprisonment . . . of the crime solicitedâ). But, notably, a person who violates the encouragement provision is not punished as if he were a principal of the underlying offense, nor does the prescribed punishment depend on the penalty for the underlying offense. So, for example, even if the underlying immigration offense is a civil violation, the person who encourages or induces that infraction could be punished by up to 10 yearsâ imprisonment for violating the encouragement provision. Unlike solicitation and facilitation, then, punishment for violation of the encouragement provision is not tied in any way to the punishment prescribed for the underlying offense.
âIt is also telling that aiding-and-abetting liability (but not solicitation) requires that the principal actually commit the underlying offense. 2 W. LaFave, Substantive Criminal Law §13.3(c) (3d ed. 2018) (â[T]he guilt of the principal must be established at the trial of the accomplice as a part of the proof on the charge against the accompliceâ). Yet, the encouragement provision on its face does not require that a noncitizen actually enter or reside in the United States.
*ââ*ââ*
âFor these reasons, none of the traditional tools of statutory interpretation makes the encouragement provision  readily susceptible to the majorityâs narrowing construction.
III
âThe majority nevertheless revises the statute, leaning on the canon of constitutional avoidance. Ante, at 16â17.7 But that canon âcomes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.â Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 12) (internal quotation marks omitted). It does not give the Court license âto rewrite a statute as it pleases.â Id., at ___ (slip op., at 14). And, here, for the reasons explained above, it is clear that the majority has mounted âa serious invasion of the legislative domain.â Stevens, 559 U. S., at 481 (internal quotation marks omitted). The majorityâs rescue mission is especially problematic because it is taking place in the context of a First Amendment challenge to a statute on overbreadth grounds, as explained below.
A
âOverbreadth challenges are an âexception to the usual rules governing standing,â a variation the Court has long permitted in recognition of the âdanger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.â Dombrowski, 380 U. S., at 486â487 (internal quotation marks omitted). Absent overbreadth doctrine, âthe contours of regulation[s]â that impinge on the freedom of speech âwould have to be hammered out case by caseâand  tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.â Id., at 487. We thus allow defendants whose speech is constitutionally proscribed by a statute (like Hansen) to argue that the statute is nevertheless facially invalid under the First Amendment on the grounds that âa substantial number of its applications are unconstitutional, judged in relation to the statuteâs plainly legitimate sweep.â Stevens, 559 U. S., at 473 (internal quotation marks omitted). By permitting this kind of challenge, the Court has âavoided making vindication of freedom of expression await the outcome of protracted litigation.â Dombrowski, 380 U. S., at 487.
âIf this Court is willing to redline Congressâs work to save it from unconstitutionality, it âsharply diminish[es] Congressâs incentive to draft a narrowly tailored law in the first place,â Stevens, 559 U. S., at 481 (internal quotation marks omitted), which runs directly counter to overbreadthâs goal of limiting criminal laws that chill constitutionally protected speech. Thus, in the particular context of an overbreadth challenge, countervailing constitutional concernsânamely, that constitutionally protected speech will be chilledâmust be considered alongside the values that underpin our ordinary canon of constitutional avoidance.
âHeavy reliance on constitutional avoidance where statutes would otherwise be facially overbroad also means that the broad language in the particular statute remains on the booksâas compared to the alternative world, in which the Court holds the statute unconstitutional as facially overbroad and thereby prompts the enactment of a narrower replacement. Ordinary people confronted with the encouragement provision, for instance, will see only its broad, speech-chilling language. Even if they do consult this Courtâs decision, and do recognize that it substantially narrows the statuteâs scope, the Courtâs decision leaves many things about future potential prosecutions up in the air.
 âFor example, one does not know from todayâs determination whether a noncitizen must actually complete the underlying offense of coming to, entering, or residing in the United States (Ă la aiding and abetting) or whether completion is not a prerequisite for prosecution (Ă la solicitation). This sort of uncertaintyâthe clarification of which, by the way, should be Congressâs policy prerogativeâmay itself dissuade people from engaging in protected speech.8 Thus, regardless of whether a potential speaker has the ability, means, and time to track down and interpret this decision (or hire a lawyer to do so) to understand what the law requires, the known unknowns of the majorityâs course portend further chill.
B
âThe majority attempts to downplay the encouragement provisionâs threat to free expression by highlighting that Hansen âfails to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted clause (iv)âs immediate predecessor.â Ante, at 17â18. But the purported lack of past prosecutions provides no comfort for several reasons.
âThe first is that we have already said as muchâthis Court squarely rejected that kind of argument when the Government raised it in a prior overbreadth challenge. In Stevens, the Government vigorously asserted that it had never brought a prosecution implicating the kind of protected expression that the plain text of the statute in question swept in, and that it did not intend to do so. 559 U. S., at 480. The Government âhi[t] this theme hard, invoking  its prosecutorial discretion several times.â Ibid. But we were not moved: Such a prosecution was permitted by the statute, we noted, and that was enough to make it a serious threat. â[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.â Ibid.
âSecond, just as in Stevens, â[t]his prosecution is itself evidence of the danger in putting faith in Government representations of prosecutorial restraint.â Ibid. At trial in this very case, the Government objected to Hansenâs proposed jury instructions, which would have required, among other things, that the Government prove that Hansen intended the noncitizen in question to reside in the United States illegally. The Governmentâs objection was telling. It was based on the argument that the proposed instructions added elements not found in the text of the statute itself. And the District Court was persuaded; it sided with the Government in that regard.9 But now that the statuteâs validity hangs in the balance, the Government has reversed course entirelyâit now implores us to read into the statute the very element that it earlier opposed as atextual. See Brief for United States 23â28.
âThis debacle exemplifies the real and ever-present risk of continuing to have facially overbroad criminal statutes on the books. In its role as prosecutor, the Government often stakes out a maximalist position, only later to concede limits when the statute upon which it relies might be struck down entirely and the Government finds itself on its back foot.10 I am not suggesting bad faith on anyoneâs part; these  kinds of turnabouts might well be chalked up to institutional incentives and coordination challenges in a massive prosecutorial system. But given these dynamics, the answer to whether the Government has, as of today, prosecuted Hansenâs hypothetical scenarios may understandably provide cold comfort to those living and working with immigrants.
âIn any event, it makes little sense for the number of unconstitutional prosecutions to be the litmus test for whether speech is being chilled by a facially overbroad statute. The number of people who have not exercised their right to speak out of fear of prosecution is, quite frankly, unknowable.
âMoreover, criminal prosecutions are not the only method by which statutes can be wielded to chill free speech. Hansenâs amici detail how Customs and Border Protection (CBP) relied on the encouragement provision to justify its creation of a âwatchlistâ of potential speakers that CBP had compiled in connection with its monitoring of a large group of migrantsâa list that included journalists simply reporting factual information about the groupâs progress. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae 5â6. CBP allegedly compiled dossiers on those reporters and singled them out as targets for special screenings. Ibid. There can be no doubt that this kind of Government surveillanceâtargeted at journalists reporting on an important topic of public concern, no lessâtends to chill speech, even though it falls short of an actual prosecution.
âHansenâs amici also describe how a group of Members of Congress recently sent a letter to three religious organizations that help undocumented immigrants, directing the or ganizations to preserve documents and communications related to their work in advance of a potential congressional investigation into whether such organizations are â âharbor[ing], transport[ing], and encourag[ing] â â noncitizens to settle unlawfully in this country. Brief for Religious Organizations as Amici Curiae 34 (emphasis added). Again, this kind of letter invoking the language of the encouragement provision can plainly chill speech, even though it is not a prosecution (and, for that matter, even if a formal investigation never materializes).
âThe majority nevertheless derides the fears of Hansen and his amici as an overimaginative âparad[e]â of âhorribles.â Ante, at 18. But what may seem âfancifulâ to this Court at great remove, ante, at 5, might well prove to be a significant obstacle for those on the ground who operate daily in the shadow of the law. The âgravityâ of the encouragement provisionâs chilling effect is âunderscored by the filings of . . . amici curiae in support of â Hansenâincluding briefs from lawyers, immigration advocacy organizations, religious and other charitable organizations, journalists, local governments, and nonprofit policy institutions from across the ideological spectrum. Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (slip op., at 17).
âThe substantial concerns that amici from such diverse walks of life raise illustrate that the âdeterrent effect feared byâ Hansen and his amici âis real and pervasive.â Id., at ___ (slip op., at 18). Moreover, at the end of the day, those fears reflect a determination to view enacted statutes as serious business, and, essentially, to take Congress at its word. This Court should have done the same.
âAs written, the encouragement provision is overbroad. Therefore, it should have been deemed facially unconstitutional and invalid under the First Amendment, as the Ninth Circuit held.
Notes
1 Â Previously, even the Government rejected the majorityâs view of the statuteâs scope at trial, when it was seeking to convict the defendant. See Part III, infra.
2  There is accordingly no need to dwell on the contents of category two here. The majority discusses several examples, like âissuing fraudulent Social Security numbers to noncitizens.â Ante, at 17 (citing Edwards v. Prime, Inc., 602 F. 3d 1276, 1295â1297 (CA11 2010)).
3  This is not a surplusage argument. Cf. ante, at 15, n. 2. I agree with the majority that clause (iv) and clause (v)(II) have different aims. My point, instead, is that Congressâs failure to use the classic âaids or abetsâ language in clause (iv), which it deploys just next door in clause (v)(II), should give us pause before concluding that we can read clause (iv) as if it included the same terms.
4  This revealing revision also sets apart the encouragement provisionâs unadorned use of âencouragesâ and âinducesâ from the majorityâs long list of state solicitation and facilitation laws. Ante, at 8. The majority includes that list in its effort to demonstrate that âencouragesâ and âinducesâ in the encouragement provision actually mean âsolicitsâ or âaids and abets.â But in the vast majority of the cited statutes, classic narrowing termsâlike âaided,â âabetted,â âsolicits,â âcommands,â âhires,â âcoerces,â or âcompelsââappear alongside âencouragesâ or âinduces.â Ibid.; see App. to Brief for State of Montana et al. as Amici Curiae 1â44. Thus, unlike the one before us, such statutes might well be susceptible of a narrower reading.
5  As a side note: Congressâs addition of âresideâ might seem to sweep in speakers who encouraged or induced noncitizens âwho were already unlawfully present in the U. S. to continue that unlawful presence.â 40 F. 4th 1049, 1073, n. 1 (CA9 2022) (Collins, J., dissenting from denial of rehâg en banc). But as Judge Collins explained, the provision is âmost naturally readâ to reach only âthose who encourage or induce particular [noncitizens] to acquire an unlawful presence or residence that they do not already have.â Ibid. After all, â[o]ne does not normally speak of âinducingâ another to do what he or she is already doing.â Ibid. And the principle of noscitur a sociis counsels in favor of such an understanding, given that âthe first two listed verbs (âcome toâ and âenterâ) plainly refer to such an acquisition.â Ibid.
6  Hansen takes issue with this feature of the statute, arguing that the â âspeech integral to criminal conductâ exceptionâ to the First Amendmentâs protection of free speech âdoes not permit the criminal punishment of speech encouraging only a civil law violation.â Brief for Respondent 39. The majority declines to address this argument, leaving it available in future as-applied challenges to this and other statutes. Ante, at 19, n. 5, 20.
7 Â The majority implies that constitutional avoidance is a backup argument. Ante, at 16 (suggesting that its reading of the statute is the âbest oneâ). But, in my view, the text and history of the encouragement provision make it hard to get even close to the majorityâs narrow reading without substantial reliance on the constitutional-avoidance principle.
8 Â The Government also struggled at oral argument before this Court to articulate what scenarios the statute would (and would not) reach under its theory. But it notably represented that it did not believe it could validly prosecute a son who reassures his noncitizen mother (who lives unlawfully in the United States with him and his family) that she is not a burden on them and that his children love having their grandmother around. See Tr. of Oral Arg. 35.
9  As the Government conceded during oral argument before this Court, given that its elements argument prevailed below, the instructions that the District Court gave to the jury in this case were legally erroneous. See Tr. of Oral Arg. 11; see also id., at 39â40 (acknowledging that the Court âshould send the case back to the Ninth Circuit and let the Ninth Circuit decide whatâs appropriate in light of â the flawed instructions).
10  The Court has seen similar moves in multiple cases just this Term. See Ciminelli v. United States, 598 U. S. 306, 316â317 (2023); Percoco v. United States, 598 U. S. 319, 332â333 (2023); Dubin v. United States, 599 U. S. ___, ___â___ (2023) (slip op., at 2â3).