The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
The briefing focused extensively on the overbreadth doctrine. Was the statute unconstitutional? Who knows. The Supreme Court did not resolve that question. Instead, the Court unanimously reversed on other grounds. Specifically, the Court found that the lower court abused its discretion through a "radical transformation" of the case.
The District Court resolved the case on narrow grounds:
In the District Court, Sineneng-Smith urged unsuccessfully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. She was convicted on two counts under §1324(a)(1)(A)(iv) and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel.
However, the Ninth Circuit changed the direction of the case:
On appeal from the §1324 convictions to the NinthCircuit, both on brief and at oral argument, Sineneng Smith essentially repeated the arguments she earlier presented to the District Court. The case was then moved by the appeals panel onto a different track. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: "[W]hether the statute of conviction is overbroad . . . under the First Amendment." App. 122–124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici's arguments, that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. 910 F. 3d 461, 485 (2018).
Would you like to take a guess who was on that panel? Of course, Judge Reinhardt, as well as Judges Tashima and Berzon. The final panel opinion explained:
Judge Reinhardt, who was originally a member of this panel, died after this case was reargued and resubmitted for decision. Judge Hurwitz was randomly drawn to replace him. Judge Hurwitz has read the briefs, reviewed the record, and watched video recordings of the oral arguments.
What did Judge Reinhardt ask for?
With the appeal poised for decision based uponthe parties' presentations, the appeals panel intervened. It ordered further briefing, App. 122–124, but not from the parties. Instead, it named three organizations—"the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild"—and invited them to file amicus briefs on three issues:
"1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?
"2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?
"3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?" Ibid.
The panel gave "amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith's counsel."
SCOTUS rejected this gambit, unanimously. Justice Ginsburg wrote the majority opinion. (Justice Thomas concurred; I will address his opinion in another post).
As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit's judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. ….
As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale.
But what about SCOTUS? Don't the Justices do what Judge Reinhardt did all the time? The Court anticipates this criticism:
There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g., Day v. McDonough, 547 U. S. 198, 202 (2006) (federal court had "authority, on its own initiative," to correct a party's "evident miscalculation of the elapsed time under a statute [of limitations]" absent "intelligent waiver").4
4In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.
The two-page addendum is titled, "Addendum of cases, 2015–2020, in which this Court called for supplemental briefing or appointed amicus curiae."
The Court identified at least five categories of appropriate actions:
- "to determine whether a case presented a controversy suitable for the Court's review" (Trump v .Mazars, Frank v. Gaos, Wittman v. Personhuballah, Gloucester County School Bd. v. G. G., Kingdomware Technologies, Inc. v. United States)
"to determine whether the case could be resolved on a basis narrower than the question presented" (Zubik v. Burwell, Google LLC v. Oracle America, Inc., Babb v. Wilkie, Carpenter v. Murphy).
- "ordered briefing on a constitutional issue implicated, but not directly presented, by the question on which we granted certiorari" and in which "
the parties had raised the relevant constitutional challenge in lower courts; the question was not interjected into the case for the first time by an appellate forum (Jennings v. Rodriguez, Johnson v. United States)
"appointed amicus curiae: to present argument in support of the judgment below when a prevailing party has declined to defend the lower court's decision or an aspect of it" (Seila Law LLC v. Consumer Financial Protection Bureau, Holguin-Hernandez v. United States, Culbertson v. Berryhill, Lucia v. SEC, Beckles v. United States, Welch v. United States, McLane Co. v. EEOC, Green v. Brennan, Reyes Mata v. Holder)
- "appointed amicus curiae . . . to address the Court's jurisdiction to decide the question presented (Montgomery v. Louisiana)
There is, of course, one prominent example where the Supreme Court completely hijacked a case and decided it on alternate grounds: Mapp v. Ohio (1961). This famous criminal procedure case was litigated as a First Amendment challenge to an obscenity prosecution. However, on appeal, the Supreme Court transformed it into a Fourth Amendment case. Here, the Justices "incorporated" the so-called exclusionary rule.
Justice Harlan's dissent criticized the majority's eagerness to decide this question:
From the Court's statement of the case, one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would, of course, face us with the need for reexamining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant's subordinate points, the new and pivotal issue brought to the Court by this appeal is whether § 2905.34 of the Ohio Revised Code, making criminal the mere knowing possession or control of obscene material, and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment. That was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed and argued in this Court.
In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf.
The Supreme Court's addendum is more of a CYA. Here, it seems there was no consensus of how to resolve the case, so they simply dumped the appeal based on Judge Reinhardt's excesses.