United States v. Sineneng-Smith

371

Syllabus

certiorari to the united states court of appeals for the ninth circuit

No. 19–67. Argued February 25, 2020—Decided May 7, 2020

Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without authorization in the United States to file applications for a labor- certifcation program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her cli- ents could not meet the long-passed statutory application-fling deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million.

Sineneng-Smith was indicted for multiple violations of 8 U. S. C. § 1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[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, ” § 1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private fnancial gain,” § 1324(a)(1)(B)(i). In the District Court, she urged that the provisions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted, as relevant here, on two counts under § 1324(a)(1)(A)(iv) and (B)(i).

Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to fle administrative applications on her clients' behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. In accord with the amici's arguments, the Ninth Circuit held that § 1324(a)(1)(A)(iv) is unconstitutionally overbroad.

Held: The Ninth Circuit panel's drastic departure from the principle of

party presentation constituted an abuse of discretion.

The Nation's adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “[I]n both civil and criminal cases, . . . we rely on the parties to frame the

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Syllabus

issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Ibid.

That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justifed the panel's takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment argu- ments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that § 1324(a)(1)(A)(iv) might cover a wide swath of protected speech, includ- ing abstract advocacy and legal advice. It did so even though Sineneng-Smith's counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel's precise arguments, but the Ninth Circuit's radical transforma- tion of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 375–380.

910 F. 3d 461, vacated and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., fled a concurring opinion, post, p. 382.

Eric J. Feigin argued the cause for the United States.

With him on the briefs were Solicitor General Francisco, Assistant Attorney General Benczkowski, Matthew Guar- nieri, and Scott A. C. Meisler.

Mark C. Fleming argued the cause for respondent. With him on the brief were Eric L. Hawkins, Thomas G. Sprank- ling, Alan E. Schoenfeld, Emily J. Barnet, and Beth C.

Neitzel.*

*Lawrence J. Joseph and Christopher J. Hajec fled a brief for the Immi-

gration Law Reform Institute as amicus curiae urging reversal.

Briefs of amici curiae urging affrmation were fled for the City and County of San Francisco et al. by Dennis J. Herrera, Aileen M. McGrath, Erin Kuka, and Mark A. Flessner; for Amnesty International by Matthew

S. Hellman, David A. Strauss, and Sarah M. Konsky; for Asian Ameri-

cans Advancing Justice | AAJC et al. by Emily T. Kuwahara, Chiemi D.

Suzuki, Harry P. Cohen, and Niyati Shah; for the Cato Institute by Ilya Shapiro; for the Electronic Frontier Foundation et al. by David Greene; for Immigration Representatives et al. by William C. Perdue, Allon Kedem, and Sirine Shebaya; for the National Association of Criminal De-

Cite as: 590 U. S. 371 (2020)

373

Opinion of the Court Justice Ginsburg delivered the opinion of the Court.

This case concerns 8 U. S. C. § 1324, which makes it a fed- eral felony to “encourag[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.” § 1324(a)(1)(A)(iv). The crime carries an enhanced penalty if “done for the pur- pose of commercial advantage or private fnancial gain.” § 1324(a)(1)(B)(i).1

Respondent Evelyn Sineneng-Smith operated an immigra- tion consulting frm in San Jose, California. She was in- dicted for multiple violations of § 1324(a)(1)(A)(iv) and (B)(i).

Her clients, most of them from the Philippines, worked with- out authorization in the home health care industry in the United States. Between 2001 and 2008, Sineneng-Smith as- sisted her clients in applying for a “labor certifcation” that once allowed certain aliens to adjust their status to that of lawful permanent resident permitted to live and work in the United States. § 1255(i)(1)(B)(ii).

There was a hindrance to the effcacy of Sineneng-Smith's advice and assistance. To qualify for the labor-certifcation dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001. § 1255(i)(1)(C).

Sineneng-Smith knew her clients did not meet the application-fling deadline; hence, their applications could not

fense Lawyers et al. by Elliott Schulder and Stephen R. Sady; for Reli- gious Organizations by Anton Metlitsky and Jeremy Girton; and for The Rutherford Institute et al. by Erin Glenn Busby, Lisa R. Eskow, Michael

F. Sturley, John W. Whitehead, David D. Cole, Esha Bhandari, Cecillia

D. Wang, and Nicole G. Berner.

A brief of amicus curiae was fled for Eugene Volokh by Mr. Volokh, pro se.

1 For violations of 8 U. S. C. § 1324(a)(1)(A)(iv), the prison term is “not more than 5 years,” § 1324(a)(1)(B)(ii); if “the offense was done for . . . private fnancial gain,” the prison term is “not more than 10 years,” § 1324(a)(1)(B)(i).

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put them on a path to lawful residence.2 Nevertheless, she charged each client $5,900 to fle an application with the De- partment of Labor and another $900 to fle with the U. S.

Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients.

In the District Court, Sineneng-Smith urged unsuccess- fully, 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. See Motion to Dismiss in No. 10– cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Ac- quittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She was convicted on two counts under § 1324(a)(1)(A)(iv) and (B)(i), and on other counts (fling 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.

On appeal from the § 1324 convictions to the Ninth Circuit, both on brief and at oral argument, Sineneng-Smith essen- tially repeated the arguments she earlier presented to the District Court. See Brief for Appellant in No. 15–10614 (CA9), pp. 11–28. 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: “Whether the statute of conviction is over- broad . . . under the First Amendment.” App. 122–124. In

2 Sineneng-Smith argued that labor-certifcation applications were often approved despite expiration of the statutory dispensation, and that an ap- proved application, when submitted as part of a petition for adjustment of status, would place her clients in line should Congress reactivate the dispensation. See Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), p. 16.

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Opinion of the Court

the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ulti- mately concluded, in accord with the invited amici's ar- guments, that § 1324(a)(1)(A)(iv) is unconstitutionally over- broad. 910 F. 3d 461, 485 (2018). The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal statute. Pet. for Cert. 24.

We granted the petition. 588 U. S. 948 (2019).

As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the prin- ciple of party presentation as to constitute an abuse of dis- cretion. We therefore vacate the Ninth Circuit's judgment and remand the case for an adjudication of the appeal at- tuned to the case shaped by the parties rather than the case designed by the appeals panel.

In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the frst instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243. In criminal cases, departures from the party presentation principle have usually occurred “to protect a pro se litigant's rights.” Id., at 244; see, e. g., Castro v. United States, 540 U. S. 375, 381–383 (2003) (affrm- ing courts' authority to recast pro se litigants' motions to “avoid an unnecessary dismissal” or “inappropriately strin- gent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis” (citation omit- ted)). But as a general rule, our system “is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advanc-

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Opinion of the Court

ing the facts and argument entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment).3

In short: “[C]ourts are essentially passive instruments of government.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh'g en banc). They “do not, or should not, sally forth each day looking for wrongs to right.

[They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” Ibid.

The party presentation principle is supple, not ironclad.

There are no doubt circumstances in which a modest initiat- ing role for a court is appropriate. See, e. g., Day v. McDon- ough, 547 U. S. 198, 202 (2006) (federal court had “authority, on its own initiative,” to correct a party's “evident miscalcu- lation of the elapsed time under a statute [of limitations]” absent “intelligent waiver”).4 But this case scarcely fts that bill. To explain why that is so, we turn frst to the proceedings in the District Court.

In July 2010, a grand jury returned a multicount indict- ment against Sineneng-Smith, including three counts of vio- lating § 1324, three counts of mail fraud in violation of 18 U. S. C. § 1341, and two counts of willfully subscribing to a false tax return in violation of 26 U. S. C. § 7206(1).

Sineneng-Smith pleaded guilty to the tax-fraud counts, App. to Pet. for Cert. 78a–79a, and did not pursue on appeal the two mail-fraud counts on which she was ultimately convicted.

3 See Kaplan, Civil Procedure—Refections on the Comparison of Sys- tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the free-wheeling energies of counsel and places them in adversary confronta- tion before a detached judge”; “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal”).

4 In an addendum to this opinion, we list cases in which this Court has called for supplemental briefng 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.

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Opinion of the Court

We therefore concentrate this description on her defenses against the § 1324 charges.

Before trial, Sineneng-Smith moved to dismiss the § 1324 counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.).

She asserted frst that the conduct with which she was charged—advising and assisting aliens about labor certifcations—is not proscribed by § 1324(a)(1)(A)(iv) and (B)(i). Being hired to fle lawful applications on behalf of aliens already residing in the United States, she maintained, did not “encourage” or “induce” them to remain in this coun- try. Id., at 7–13. Next, she urged, alternatively, that clause (iv) is unconstitutionally vague and therefore did not provide fair notice that her conduct was prohibited, id., at 13–18, or should rank as a content-based restraint on her speech, id., at 22–24. She further asserted that she has a right safe- guarded to her by the Petition and Free Speech Clauses of the First Amendment to fle applications on her clients' be- half. Id., at 20–25. Nowhere did she so much as hint that the statute is infrm, not because her own conduct is pro- tected, but because it trenches on the First Amendment shel- tered expression of others.

The District Court denied the motion to dismiss, holding that Sineneng-Smith could “encourag[e]” noncitizens to re- main in the country, within the meaning of § 1324(a)(1)(A)(iv), “[b]y suggesting to [them] that the applications she would make on their behalf, in exchange for their payments, would allow them to eventually obtain legal permanent residency in the United States.” App. to Pet. for Cert. 73a. The court also rejected Sineneng-Smith's constitutional argu- ments, reasoning that she was prosecuted, not for fling cli- ents' applications, but for falsely representing to noncitizens that her efforts, for which she collected sizable fees, would enable them to gain lawful status. Id., at 75a.

After a 12-day trial, the jury found Sineneng-Smith guilty on the three § 1324 counts charged in the indictment, along with the three mail-fraud counts. App. 118–121. Sineneng-

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Smith then moved for a judgment of acquittal. She re- newed, “almost verbatim,” the arguments made in her mo- tion to dismiss, App. to Pet. for Cert. 65a, and the District Court rejected those arguments “[f]or the same reasons as the court expressed in its order denying Sineneng-Smith's motion to dismiss,” ibid. She simultaneously urged that the evidence did not support the verdicts. Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District Court found the evidence suffcient as to two of the three § 1324 counts and two of the three mail-fraud counts. App. to Pet. for Cert. 67a.5

Sineneng-Smith's appeal to the Ninth Circuit from the Dis- trict Court's § 1324 convictions commenced unremarkably.

On brief and at oral argument, she reasserted the self- regarding arguments twice rehearsed, initially in her motion to dismiss, and later in her motion for acquittal. Brief for Appellant in No. 15–10614 (CA9), at 9–27, 35–41; Recording of Oral Arg. (Apr. 18, 2017), at 37:00–39:40; see supra, at 377.

With the appeal poised for decision based upon the parties' presentations, the appeals panel intervened. It ordered fur- ther briefng, App. 122–124, but not from the parties. In- stead, it named three organizations—“the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immi- grant Defense Project[,] and the National Immigration Proj- ect of the National Lawyers Guild”—and invited them to fle

“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

5 The court sentenced Sineneng-Smith to 18 months on each of the re- maining counts; three years of supervised release on the § 1324 and mail- fraud counts; and one year of supervised release on the fling of false tax returns count, all to run concurrently. She was also ordered to pay $43,550 in restitution, a $15,000 fne, and a $600 special assessment.

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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 im- plicit mens rea element which the Court should enunci- ate. 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.

Counsel for the parties were permitted, but “not re- quired,” to fle supplemental briefs “limited to responding to any and all amicus/amici briefs.” Id., at 123 (emphasis added). Invited amici and amici not specifcally invited to fle were free to “brief such further issues as they, respec- tively, believe the law and the record calls for.” Ibid. The panel gave invited amici 20 minutes for argument, and allo- cated only 10 minutes to Sineneng-Smith's counsel. Reargu- ment Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specifed areas of inquiry, the panel reached only the frst, holding that § 1324(a)(1)(A)(iv) was facially overbroad under the First Amendment, 910 F. 3d, at 483–485, and was not susceptible to a permissible limiting construction, id., at 472, 479.

True, in the redone appeal, Sineneng-Smith's counsel adopted without elaboration counsel for amici's overbreadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise?

Understandably, she rode with an argument suggested by the panel. In the panel's adjudication, her own arguments, differently directed, fell by the wayside, for they did not mesh with the panel's overbreadth theory of the case.

No extraordinary circumstances justifed the panel's take- over of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments hom- ing in on her own conduct, not that of others. Electing not

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Addendum to opinion of the Court

to address the party-presented controversy, the panel pro- jected that § 1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother's plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.6 Nevermind that Sineneng-Smith's counsel had presented a contrary the- ory of the case in the District Court, and that this Court has repeatedly warned that “[i]nvalidation for [First Amend- ment] overbreadth is `strong medicine' that is not to be `casu- ally employed.' ” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Re- porting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 376, a court is not hide- bound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale.

* * *

For the reasons stated, we vacate the Ninth Circuit's judg- ment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

It is so ordered.

Addendum of cases, 2015–2020, in which this Court called for supplemental briefng or appointed amicus curiae

This Court has sought supplemental briefng: to determine whether a case presented a controversy suitable for the

6 The Solicitor General maintained that the statute does not reach pro- tected speech. Brief for United States 32. In the Government's view, § 1324(a)(1)(A)(iv) should be construed to prohibit only speech facilitating or soliciting illegal activity, thus falling within the exception to the First Amendment for speech integral to criminal conduct. Id., at 22–26, 31 (citing United States v. Williams, 553 U. S. 285, 298 (2008)).

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Addendum to opinion of the Court

Court's review, Trump v. Mazars USA, LLP, 590 U. S. 921 (ordering briefng on application of political question doctrine and related justiciability principles); Frank v. Gaos, 586

U. S. 995 (2018) (ordering briefng on Article III standing);

Wittman v. Personhuballah, 576 U. S. 1093 (2015) (same); Docket Entry in Gloucester County School Bd. v. G. G., O. T.

2016, No. 16–273 (Feb. 23, 2017) (ordering briefng on inter- vening Department of Education and Department of Justice guidance document); Kingdomware Technologies, Inc. v.

United States, 577 U. S. 970 (2015) (ordering briefng on mootness); to determine whether the case could be resolved on a basis narrower than the question presented, Zubik v.

Burwell, 578 U. S. 901 (2016) (ordering briefng on whether the plaintiffs could obtain relief without entirely invalidating challenged federal regulations); and to clarify an issue or ar- gument the parties raised, Google LLC v. Oracle America, Inc., 590 U. S. 928 (ordering further briefng on the parties' dispute over the standard of review applicable to the ques- tion presented); Babb v. Wilkie, 589 U. S. 1164 (2020) (order- ing briefng on an assertion counsel made for the frst time at oral argument about alternative remedies available to the plaintiff ); Sharp v. Murphy, reported sub nom. Carpenter

v. Murphy, 586 U. S. 1046 (2018) (ordering briefng on the

implications of the parties' statutory interpretations).

In rare instances, we have ordered briefng on a constitu- tional issue implicated, but not directly presented, by the question on which we granted certiorari. See Jennings v.

Rodriguez, 580 U. S. 1040 (2016) (in a case about availability of a bond hearing under a statute mandating detention of certain noncitizens, briefng ordered on whether the Consti- tution requires such a hearing); Johnson v. United States, 574 U. S. 1069 (2015) (in a case involving interpretation of the Armed Career Criminal Act's residual clause, briefng ordered on whether that clause is unconstitutionally vague).

But in both cases, the parties had raised the relevant consti- tutional challenge in lower courts; the question was not in-

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Thomas, J., concurring

terjected into the case for the frst time by an appellate forum. In Jennings, moreover, the parties' statutory argu- ments turned expressly on the constitutional issue. Jen- nings v. Rodriguez, 583 U. S. 281 (2018). And in Johnson, although this Court had interpreted the Act's residual clause four times in the preceding nine years, there still remained “pervasive disagreement” in the lower courts about its appli- cation. Johnson v. United States, 576 U. S. 591, 601 (2015).

We have 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 Bu- reau, 589 U. S. 1041 (2019); Holguin-Hernandez v. United States, 588 U. S. 918 (2019); Culbertson v. Berryhill, 584

U. S. 999 (2018); Lucia v. SEC, 583 U. S. 1099 (2018); Beckles

v. United States, 579 U. S. 965 (2016); Welch v. United States,

577 U. S. 1098 (2016); McLane Co. v. EEOC, 580 U. S. 985 (2016); Green v. Brennan, 576 U. S. 1087 (2015); Reyes Mata

v. Lynch, reported sub nom. Reyes Mata v. Holder, 574 U. S.

1118 (2015); and to address the Court's jurisdiction to decide the question presented, Montgomery v. Louisiana, 575 U. S. 933 (2015).

Justice Thomas, concurring. I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U. S. C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. In my view, however, the Court of Appeals' decision violates far more than the party presentation rule. The merits of that decision also highlight the troubling nature of this Court's overbreadth doctrine. That doctrine provides that “a law may be invalidated as overbroad if `a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.' ” United States v. Ste- vens, 559 U. S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442,

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449, n. 6 (2008)). Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application. It appears that the overbreadth doctrine lacks any basis in the Constitution's text, violates the usual standard for facial challenges, and contravenes traditional standing principles. I would there- fore consider revisiting this doctrine in an appropriate case.

This Court's overbreadth jurisprudence is untethered from the text and history of the First Amendment. It frst emerged in the mid-20th century. In Thornhill v. Alabama, 310 U. S. 88 (1940), the Court determined that an antipick- eting statute was “invalid on its face” due to its “sweeping proscription of freedom of discussion,” id., at 101–105. The Court rejected the State's argument that the statute was constitutional because it was “limited or restricted in its ap- plication” to proscribable “violence and breaches of the peace [that] are the concomitants of picketing.” Id., at 105. With- out considering whether the defendant's actual conduct was entitled to First Amendment protection, the Court concluded that the law was unconstitutional because it “d[id] not aim specifcally at evils within the allowable area of state control but, on the contrary, swe[pt] within its ambit other activities that in ordinary circumstances constitute an exercise of free- dom of speech or of the press.” Id., at 97.

Since then, the Court has invoked this rationale to facially invalidate a wide range of laws, from statutes enacted by Congress, see, e. g., Ashcroft v. Free Speech Coalition, 535

U. S. 234 (2002), to measures passed by city offcials, see, e. g.,

Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987). These laws covered a variety of subjects, from nudity in drive-in movies, Erznoznik v. Jack- sonville, 422 U. S. 205 (1975), to charitable solicitations, Schaumburg v. Citizens for Better Environment, 444 U. S. 620 (1980), to depictions of animal cruelty, Stevens, supra, at

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not because they necessarily violated an individual's First Amendment rights but “because of a judicial prediction or assumption that the statute's very existence may cause [some citizens] to refrain from constitutionally protected [ac- tivity].” Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973) (emphasis added); see also Erznoznik, supra, at 216.

Notably, this Court has not attempted to ground its void- for-overbreadth rule in the text or history of the First Amendment. It did not do so in Thornhill, and it has not done so since. Rather, the Court has justifed this doctrine solely by reference to policy considerations and value judg- ments. See New York v. Ferber, 458 U. S. 747, 768–769 (1982). It has stated that facially invalidating overbroad statutes is sometimes necessary because “[First Amend- ment] freedoms are delicate and vulnerable, as well as su- premely precious in our society,” and thus “need breathing space to survive.” * NAACP v. Button, 371 U. S. 415, 433 (1963). And, in the context of the freedom of speech, the Court has justifed the overbreadth doctrine's departure from traditional principles of adjudication by noting free speech's “transcendent value to all society, and not merely

*The Court often discusses the doctrine as applying in the context of “First Amendment rights” more generally. Broadrick v. Oklahoma, 413

U. S. 601, 611–613 (1973); see also NAACP v. Button, 371 U. S. 415, 433

(1963) (discussing “the First Amendment freedoms”). Such arguments are typically raised in free speech cases, but the Court has occasionally entertained overbreadth challenges invoking the freedom of the press, see,

e. g., Thornhill v. Alabama, 310 U. S. 88 (1940), and the freedom of associa-

tion, see, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967). Curiously, however, the Court has never applied this doctrine in the context of the First Amendment's Religion Clauses. In fact, the Court currently applies a far less protective standard to free exercise claims, upholding laws that substantially burden religious exer- cise so long as they are neutral and generally applicable. See Employ- ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). The Court has never acknowledged, much less explained, this discrepancy.

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Thomas, J., concurring to those exercising their rights.” Dombrowski v. Pfster,

In order to protect this “transcendent” right, ibid., the Court will deem a statute unconstitutional when, in “the judgment of this Court[,] the possible harm to society in per- mitting some unprotected speech to go unpunished is out- weighed by the possibility that protected speech of others may be muted and perceived grievances left to fester be- cause of the possible inhibitory effects of [the] statut[e].” Broadrick, supra, at 612. In other words, the doctrine is driven by a judicial determination of what serves the public good. But there is “no evidence [from the founding] indicat- [ing] that the First Amendment empowered judges to deter- mine whether particular restrictions of speech promoted the general welfare.” Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246, 259 (2017). This makes sense given that the Founders viewed value judgments and policy considerations to be the work of legislatures, not unelected judges. See Obergefell v. Hodges, 576 U. S. 644, 709 (2015) (Roberts, C. J., dissenting). Nevertheless, such judgments appear to be the very foundation upon which this Court's modern overbreadth doctrine was built.

Perhaps unsurprisingly, the overbreadth doctrine shares a close relationship with this Court's questionable vagueness doctrine. See Johnson v. United States, 576 U. S. 591, 611– 623 (2015) (Thomas, J., concurring in judgment). In fact, it appears that the Court's void-for-overbreadth rule developed as a result of the vagueness doctrine's application in the First Amendment context. For example, this Court's deci- sion in Thornhill, which is recognized as “the fountainhead of the overbreadth doctrine,” Monaghan, Overbreadth, 1981

S. Ct. Rev. 1, 11, cited a vagueness precedent in support of

its overbreadth analysis. 310 U. S., at 96 (citing Stromberg

v. California, 283 U. S. 359, 367 (1931)). And the decision

expressed concerns regarding the antipicketing statute's “vague” terms with “no ascertainable meaning” and their

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Thomas, J., concurring

resulting potential for “discriminatory enforcement. ” Thornhill, supra, at 97–98, 100–101; cf. Chicago v. Morales, 527 U. S. 41, 56 (1999) (opinion of Stevens, J.). As the over- breadth doctrine has developed, it has “almost wholly merged” with the vagueness doctrine as applied to “statutes covering [F]irst [A]mendment activities.” Sargentich, Note, The First Amendment Overbreadth Doctrine, 83 Harv.

vagueness doctrine, I fnd this shared history “unsettling.” Johnson, supra, at 621 (opinion of Thomas, J.).

In addition to its questionable origins, the overbreadth doctrine violates the usual standard for facial challenges.

Typically, this Court will deem a statute unconstitutional on its face only if “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S.

739, 745 (1987). But the overbreadth doctrine empowers courts to hold statutes facially unconstitutional even when they can be validly applied in numerous circumstances, in- cluding the very case before the court.

By lowering the bar for facial challenges in the First Amendment context, the overbreadth doctrine exacerbates the many pitfalls of what is already a “disfavored” method of adjudication. Washington State Grange, 552 U. S., at 450. “[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws.” Broadrick, 413 U. S., at 610–611. But when a court entertains—or in this case, seeks out—an over- breadth challenge, it casts aside the “judicial restraint” nec- essary to avoid “ `premature' ” and “ `unnecessary pronounce- ment[s] on constitutional issues. ' ” Washington State Grange, supra, at 450 (quoting United States v. Raines, 362

U. S. 17, 22 (1960)). This principle of restraint has long

served as a fundamental limit on the scope of judicial power.

See Liverpool, New York & Philadelphia S. S. Co. v. Com- Cite as: 590 U. S. 371 (2020)

387

Thomas, J., concurring

missioners of Emigration, 113 U. S. 33, 39 (1885). “[T]here is good evidence that courts [in the early Republic] under- stood judicial review to consist [simply] `of a refusal to give a statute effect as operative law in resolving a case' ” once that statute was determined to be unconstitutional. John- son, supra, at 615 (opinion of Thomas, J.) (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010)). Thus, our “modern practice of strik[ing] down” leg- islation as facially unconstitutional bears little resemblance to the practices of 18th- and 19th- century courts. Johnson, supra, at 615 (opinion of Thomas, J.) (internal quotation marks omitted); see also Mitchell, The Writ-of-Erasure Fal- lacy, 104 Va. L. Rev. 933, 936 (2018) (“[F]ederal courts have no authority to erase a duly enacted law from the statute books”).

Moreover, by relaxing the standard for facial challenges, the overbreadth doctrine encourages “speculat[ion]” about “ `imaginary' cases,” Washington State Grange, supra, at 450 (quoting Raines, supra, at 22), and “summon[s] forth an end- less stream of fanciful hypotheticals,” United States v. Wil- liams, 553 U. S. 285, 301 (2008). And, when a court invali- dates a statute based on its theoretical, illicit applications at the expense of its real-world, lawful applications, the court “threaten[s] to short circuit the democratic process by pre- venting laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Washington State Grange, supra, at 451.

Collaterally, this Court has a tendency to lower the bar for facial challenges when preferred rights are at stake. See,

e. g., Planned Parenthood of Southeastern Pa. v. Casey, 505

U. S. 833 (1992). This ad hoc approach to constitutional ad-

judication impermissibly expands the judicial power and “re- duc[es] constitutional law to policy-driven value judgments.” Whole Woman's Health v. Hellerstedt, 579 U. S. 582, 643 (2016) (Thomas, J., dissenting). We ought to “abid[e] by one set of rules to adjudicate constitutional rights,” ibid., partic-

388 UNITED STATES v. SINENENG-SMITH

Thomas, J., concurring ularly when it comes to the disfavored practice of facial challenges.

Finally, by allowing individuals to challenge a statute based on a third party's constitutional rights, the over- breadth doctrine is at odds with traditional standing princi- ples. This Court has long adhered to the rule that “a liti- gant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or inter- ests of third parties.” Powers v. Ohio, 499 U. S. 400, 410 (1991); see also Clark v. Kansas City, 176 U. S. 114, 118 (1900); Owings v. Norwood's Lessee, 5 Cranch 344, 348 (1809) (Marshall, C. J.). The Court has created a “limited” excep- tion to this rule, allowing third-party standing in certain cases in which the litigant has “a close relation to the third party” and there is a substantial “hindrance to the third par- ty's ability to protect his or her own interests.” Powers, supra, at 410–411. Litigants raising overbreadth challenges rarely satisfy either requirement, but the Court nevertheless allows third-party standing to “avoi[d] making vindication of freedom of expression await the outcome of protracted litigation.” Dombrowski, 380 U. S., at 487. As I have pre- viously explained, this Court “has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate.” Whole Woman's Health, supra, at 643 (Thomas, J., dissenting).

The overbreadth doctrine's disregard for the general rule against third-party standing is especially problematic in light of the rule's apparent roots in Article III's case-or- controversy requirement. Although the modern Court has characterized the rule as a prudential rather than jurisdic- tional matter, see Craig v. Boren, 429 U. S. 190, 193 (1976), it has never provided a substantive justifcation for that as- sertion. And the Court has admitted that this rule against third-party standing is “not always clearly distinguished from the constitutional limitation[s]” on standing, Barrows v.

Cite as: 590 U. S. 371 (2020)

389

Thomas, J., concurring

Jackson, 346 U. S. 249, 255 (1953); is “closely related to Ar- t[icle] III concerns,” Warth v. Seldin, 422 U. S. 490, 500 (1975); and even is “grounded in Art[icle] III limits on the jurisdiction of federal courts to actual cases and controver- sies,” Ferber, 458 U. S., at 767, n. 20.

These statements fnd support in a historical understand- ing of Article III. To understand the scope of the Consti- tution's case-or-controversy requirement, “we must `refer directly to the traditional, fundamental limitations upon the powers of common-law courts.' ” Spokeo, Inc. v. Robins, 578

U. S. 330, 344 (2016) (Thomas, J., concurring) (quoting Honig

v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dissenting)).

“Common-law courts imposed different limitations on a plaintiff's right to bring suit depending on the type of right the plaintiff sought to vindicate.” Spokeo, 578 U. S., at 344 (Thomas, J., concurring). “In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury [if] his personal, legal rights [were] invaded.” Ibid. Personal constitutional rights, such as those protected under the First Amendment, are “private rights” in that they “ `belon[g] to individuals, considered as individuals.' ” Ibid. (quoting 3 W. Blackstone, Commentar- ies on the Laws of England *2); see also Ferber, supra, at 767 (recognizing “the personal nature of constitutional rights” as a “cardinal principl[e] of our constitutional order”); Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L.

Rev. 275, 287 (2008) (listing “First Amendment rights” as examples of private rights provided by the Constitution).

Thus, when a litigant challenges a statute on the grounds that it has violated his First Amendment rights, he has al- leged an injury suffcient to establish standing for his claim, regardless of the attendant damages or other real-world harms he may or may not have suffered.

Overbreadth doctrine turns this traditional common-law rule on its head: It allows a litigant without a legal injury to assert the First Amendment rights of hypothetical third

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Thomas, J., concurring

parties, so long as he has personally suffered a real-world injury. See Broadrick, 413 U. S., at 612. In other words, the litigant has no private right of his own that is genuinely at stake. See Woolhandler & Nelson, Does History Defeat Standing Doctrine? 102 Mich. L. Rev. 689, 722–723 (2004); see also Hessick, 93 Cornell L. Rev., at 280–281. At common law, this sort of “factual harm without a legal injury was damnum absque injuria and provided no basis for relief.” Ibid. Courts adhered to the “obvious” and “ancient maxim” that one's real-world damages alone cannot “lay the founda- tion of an action . . . if the act complained of does not violate any of his legal rights.” Parker v. Griswold, 17 Conn. *288, *302–*303 (1846).

Here, the overbreadth challenge embraced by respondent on appeal relied entirely on the free speech rights of others— immigration lawyers, activists, clergy, and even grandmoth- ers. This is not terribly surprising given that the over- breadth arguments were developed by amici organizations that represent some of these third parties, not by respondent herself. See ante, at 379. Although it appears respondent lacked standing on appeal to assert the rights of individuals not before the court, she did have standing to seek relief for alleged violations of her own constitutional rights, which she raised before the Ninth Circuit commandeered her appeal.

On remand, the Court of Appeals will be well within the bounds of its Article III jurisdiction in considering these narrower arguments.

* * *

The overbreadth doctrine appears to be the handiwork of judges, based on the misguided “notion that some constitu- tional rights demand preferential treatment.” Whole Wom- an's Health, 579 U. S., at 641 (Thomas, J., dissenting). It seemingly lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial chal- lenges, and violates Article III principles regarding judicial power and standing. In an appropriate case, we should con- sider revisiting this doctrine.