AG Skrmetti Joins Coalition "To Uphold Federal Law Against Encouraging Illegal Immigration"

  • Thursday, January 26, 2023

Tennessee Attorney General Jonathan Skrmetti joined a coalition of 24 state attorneys general in filing an amicus brief in U.S. Supreme Court in support of a federal criminal prohibition on encouraging or inducing illegal immigration into the United States.

In the brief, the coalition asks the Court to overturn a Ninth Circuit Court of Appeals decision striking down a federal law that makes it illegal for a person to encourage or induce non-citizens to unlawfully enter or reside in the United States.

“More than ever, illegal immigration imposes tremendous economic, social, and fiscal burdens on the states,” Press Secretary Elizabeth Lane said. “The decision, if left undisturbed, will impede the enforcement of criminal immigration laws nationwide, leading to significant adverse consequences for Tennessee.”

The Ninth Circuit relied on the “overbreadth doctrine” to strike down the federal law. The doctrine allows a federal court to strike down a statute if it would violate the First Amendment in a substantial number of other cases; however, the panel’s strained analysis greatly expands this doctrine’s reach, invading the separation of powers between the federal government and the states.

As explained in the brief, the Ninth Circuit’s decision undermines Tennessee’s ability to enforce its own criminal laws against encouraging or inducing unlawful conduct. In Tennessee, such laws include Tenn. Code Ann. 39-13-512(4)(A) and Tenn. Code Ann. 39-16-410(a)(1).

If the Ninth Circuit’s expansive application of the overbreadth doctrine stands, important state criminal laws will be vulnerable to broad constitutional challenges. This undermines the states’ constitutional power to create and enforce a criminal code.

To avoid this, General Skrmetti and the coalition argue that overbreadth claims should require a showing more than a hypothetical danger of chilling protected speech and that the charged crime is overbroad.

General Skrmetti joined Montana Attorney General Austin Knudsen, who authored the brief, and state attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and Wyoming.

Read the brief in its entirety here.

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