United States v. Sineneng-Smith
Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is facially unconstitutional.Background and Case Commentary
The opinion in this case was unusual because, rather than addressing the merits of the presented issues, the Supreme Court reprimanded the Ninth Circuit panel for reaching out to decide a question that the respondent had not raised. Writing for a unanimous Court, Justice Ginsburg held that the Ninth Circuit abused its discretion by drastically departing from the principle of party presentation.
This outcome is frustrating for several reasons. First, by reaching a decision that was unrelated to the parties’ arguments, the Court engaged in the very type of conduct for which it was reprimanding the Ninth Circuit. Moreover, when deciding Citizens United v. FEC in 2010, the Supreme Court itself reached out and raised a new issue for the parties to brief after oral argument was over. Finally, and most relevant here, none of the justices asked Mr. Fleming, Ms. Sineneng-Smith’s attorney, a single question that directly pertained to what became their unanimous holding.
Such a question might have read: “Counsel, prior to the extraordinary action of the Ninth Circuit in taking control of this case from the lawyers, had your client ever raised the overbreadth issue in either the District Court or at the first oral argument in the 9th Circuit? Why should we shift the focus of this case to protecting third persons when you never raised an “other-regarding” argument until being forced into it by the 9th Circuit?”
Mr. Fleming did an excellent job arguing for Ms. Sineneng-Smith and, without a question such as the hypothetical inquiry I posed above, he could not have known in advance how the Court would end up deciding this case. However, Justice Alito posed one question that, with the benefit of hindsight, provided a narrow opportunity for Mr. Fleming to address the unexpectedly dispositive issue. Therefore, in my answer below, in addition to addressing Justice Alito’s mischaracterization of Ms. Sineneng-Smith’s speech as conduct, I also explain why it was appropriate for her to raise and for the Court to address the overbreadth issue in this case.United States v. Sineneng-Smith on Oyez: https://www.oyez.org/cases/2019/19-67