By Mark Joseph Stern | Slate
Under the Trump administration, the Supreme Court has been the place where immigrants’ rights go to die. Time and again, the conservative majority has upheld unconstitutional restrictions on immigration and allowed the government to implement legally dubious attacks on noncitizens in the United States. On Tuesday morning, the court continued this trend in a 5–4 decision in Hernández v. Mesa throwing out a lawsuit against a border patrol agent who shot a teenager across the Southern border, relieving the increasingly violent Customs and Border Protection from accountability. As Justice Ruth Bader Ginsburg noted in dissent, the killing was “not an isolated incident” but part of a broader pattern of abuse that CBP refuses to address.
After the court announced its opinion in Hernández, it heard arguments in another immigration-related case: United States v. Sineneng-Smith, which involves a federal law that bars people from encouraging noncitizens to enter or stay in the U.S. illegally. Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy.
Under this statute, an attorney providing a consultation or representing an undocumented immigrant for financial gain — and who encourages them to remain in the U.S. — could face ten years in prison if convicted. If the attorney is not receiving financial gain, then a five-year prison sentence would apply. This could also apply to religious institutions, charities, legal aid, and medical institutions. The Ninth Circuit has held this statute unconstitutional — and we hope SCOTUS does as well. The opposite could result in a chilling effect on First Amendment rights and an increase in politically motivated prosecutions.