TOPEKA – (January 25, 2023) – Kansas Attorney General Kris Kobach and 24 other attorneys general today filed an amicus brief to support a criminal law prohibition on encouraging or causing illegal immigration into the United States.
In a brief filed with the U.S. Supreme Court, the 25 attorneys general are asking the court to overturn a decision by the Ninth Circuit Court of Appeals repealing a federal law that makes it illegal for a person to allow non-citizens to unlawfully enter or to encourage or induce illegal residence in the United States.
“This federal law has been on the books for many decades and is essential to prosecute those who smuggle and harbor illegal aliens or take action to facilitate illegal immigration,” Kobach said.
Relying on the “overbreadth doctrine,” which allows a federal court to vacate a statute if it would violate the First Amendment in a significant number of other cases, the Ninth Circuit Court struck down a federal statute barring people from illegal immigration to promote. But the panel’s tense analysis, which greatly expands the reach of this doctrine and penetrates the division of powers between the federal and state governments.
“More than ever, illegal immigration is placing enormous economic, social and tax burdens on states. The decision below, if left undisturbed, will hamper nationwide enforcement of criminal immigration laws, with significant adverse consequences for the United States [states]”It says in the short description.
In this way, the Ninth Court’s decisions undermine states’ ability to enforce their own criminal statutes against promoting or inducing unlawful conduct. In Kansas, such laws include encouraging someone to commit a crime or assisting in the commission of a crime, encouraging or inducing a minor to consume alcohol, and complicity in a child’s misconduct or deprivation.
If the Ninth Circuit’s expansive application of the Overbread Doctrine persists, key state criminal statutes will be vulnerable to broad constitutional challenge. This undermines states’ constitutional authority to create and enforce criminal codes.
“Admitting the Ninth Circuit Court’s decision threatens widespread uncertainty in the ability of states to enforce their criminal laws that use these terms,” the brief said.
To avoid this, Kobach and the Coalition argue that excessive allegations should require that more than a hypothetical threat of deterrence of protected speech be shown, and that the crime charged be exaggerated.
Kobach joined Montana Attorney General Austin Knudsen, who drafted the brief, and attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. A copy of the briefing is available at https://bit.ly/3H820ku.