# United States v. Hansen/Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 22–179
UNITED STATES, PETITIONER v. HELAMAN HANSEN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 23, 2023]
Justice Thomas, concurring.
I join the Court’s opinion in full. I write separately to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role. The facial overbreadth doctrine “purports to grant federal courts the power to invalidate a law” that is constitutional as applied to the party before it “ ‘if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 2) (quoting United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (Thomas, J., concurring) (slip op., at 1)). As I have explained, this doctrine “lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges,” and distorts the judicial role. Id., at ___ (slip op., at 9).
There is no question that the First Amendment does not shield respondent’s scheme from prosecution under 8 U. S. C. §1324(a)(1)(A)(iv), which prohibits “encourag[ing] or induc[ing] 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.” Respondent defrauded nearly 500 aliens by telling them that they could become U. S. citizens through ​adult adoption; he charged them up to $10,000 apiece, knowing full well that his scheme would not lead to citizenship. The Ninth Circuit even acknowledged below that “it is clear,” both “from previous convictions under the statute … and likely from [respondent’s] conduct here, that [§1324(a)(1)(A)(iv)] has at least some ‘plainly legitimate sweep.’ ” 25 F. 4th 1103, 1106–1107 (2022).
Yet, instead of applying Congress’ duly enacted law to respondent, the Ninth Circuit held the statute unconstitutional under this Court’s facial overbreadth doctrine. Specifically, it took the doctrine as license to “speculate about imaginary cases and sift through an endless stream of fanciful hypotheticals,” from which it concluded that the statute may be unconstitutional as applied to other (hypothetical) individuals in other (hypothetical) situations. 40 F. 4th 1049, 1071 (2022) (Bumatay, J., dissenting from denial of rehearing en banc) (internal quotation marks omitted). It then tallied up those hypothetical constitutional violations and determined that they were “substantial” enough to warrant holding the law unconstitutional in toto. 25 F. 4th, at 1109–1111. That line of reasoning starkly demonstrates that this Court’s facial overbreadth doctrine offers a license for federal courts to act as “roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–611 (1973) (majority opinion of White, J.).
Such “roving commissions” are hardly a new idea. When they met in 1787, the Constitution’s Framers were well aware of a body that wielded such power: the New York Council of Revision (Council). Created by the New York Constitution of 1777, the Council consisted of the Governor, the Chancellor, and the judges of the New York Supreme Court. 2 B. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1328, 1332 (2d ed. 1878). Noting that “laws inconsistent with the spirit of this constitution, or with the public ​good, may be hastily and unadvisedly passed,” section III of the New York Constitution required the two Houses of the New York Legislature to present “all bills which have passed the senate and assembly” to the “council for their revisal and consideration.” Ibid. The Council’s power “to revise legislation” meant that, if it “objected to any measure of a bill, it would return a detailed list of its objections to the legislature,” which “could change the bill to conform to those objections, override” them by a two-thirds vote of both Houses, “or simply let the bill die.” J. Barry, Comment: The Council of Revision and the Limits of Judicial Power, 56 U. Chi. L. Rev. 235, 245 (1989) (Barry) (emphasis deleted). The grounds for the Council’s vetoes “ranged from an act being ‘inconsistent with the spirit of the Constitution’ to an act being passed without ‘the persons affected thereby having an opportunity of being heard’ ” to an act being “ ‘inconsistent with the public good.’ ” Id., at 245–246 (alteration and footnote omitted).
At first, the Council was a well-respected institution, and several prominent delegates to the Philadelphia Convention sought to replicate it in the Federal Constitution. Resolution 8 of the Virginia Plan proposed a federal council of revision composed of “the Executive and a convenient number of the National Judiciary” that would have “authority to examine [and veto] every act of the National Legislature before it shall operate.” 1 Records of the Federal Convention of 1787, §8, p. 21 (M. Farrand ed. 1911) (Farrand). The Council’s veto would “be final … unless the Act of the National Legislature be again passed.” Ibid.; see also J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 30–33 (2010).
The proponents of a council were clear that they sought ​to empower judges to pass upon not only the constitutionality of laws, but also their policy. One of the council’s main supporters, James Wilson, stated that the council would share the New York Council’s power of reviewing laws, not only on constitutional grounds, but also to determine if they were “unjust,” “unwise,” “dangerous,” or “destructive.” 2 Farrand 73. Such a power was needed, according to Wilson, because the ordinary judicial power of refusing to apply unconstitutional laws in cases or controversies did not include the authority to decline to give effect to a law on policy grounds. Ibid. The other leading proponent of a council, James Madison, similarly argued that the council would veto “laws unwise in their principle, or incorrect in their form.” 1 id., at 139. For Madison, the council was necessary to remedy the defect caused by the limits of judicial power: Judges could not prevent the “pursuit of … unwise & unjust measures.” 2 id., at 74. In that vein, George Mason similarly argued that a council was needed to prevent “unjust oppressive or pernicious” laws from taking effect. Id., at 78.
Significantly, proponents of a council rejected the premise that judicial power included a power to refuse to apply a law for policy reasons. In fact, “[n]either side thought judges would or should be authorized to make policy—whether couched in the language of justice or rights—through their exercise of the judicial power. … [T]he debate over a council of revision was made necessary … because … not a single delegate on either side of the debate proposed or supported having judges perform a policymaking role from the bench.” J. Anderson, Learning From the Great Council of Revision Debate, 68 Rev. Politics 79, 99–100 (2006). From that shared premise, the council’s proponents argued that such an institution was needed precisely because it would be incompatible with judicial duty to take policy concerns into account in adjudicating cases. See J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, ​963 (2018).
Despite the support of respected delegates like Wilson and Madison, the Convention voted against creating a federal council of revision on four different occasions. P. Hamburger, Law and Judicial Duty 511 (2008). No other proposal was considered and rejected so many times. Ibid. Like the council’s supporters, opponents of the proposal understood that the judicial power is only the authority to “resolve private disputes between particular parties,” rather than “matters affecting the general public.” Barry 255. Working from that shared premise, they reasoned that it was “ ‘quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures,’ ” as “ ‘no maxim was better established’ than that ‘the power of making ought to be kept distinct from that of expounding, the law.’ ” Ibid. (quoting 1 Farrand 97–98 (E. Gerry); 2 id., at 75 (C. Strong)); see also 1 id., at 140 (J. Dickinson). Indeed, opponents observed that “the Judges” were “of all men the most unfit to” have a veto on laws before their enactment. 2 id., at 80 (J. Rutledge). This was so not only because judges could not be “presumed to possess any peculiar knowledge of the mere policy of public measures,” id., at 73 (N. Ghorum), but also because, to preserve judicial integrity, they “ought never to give their opinion on a law till it comes before them” as an issue for decision in a concrete case or controversy, id., at 80 (J. Rutledge); see also Perez v. Mortgage Bankers Assn., 575 U. S. 92, 121 (2015) (Thomas, J., concurring in judgment) (“[J]udicial ​involvement in such a council would foster internal biases”). Opponents thus concluded that to include judges in the policy decisions inherent in the legislative process would be a “dangerous innovation,” one that would erode public confidence in their ability to perform their “proper official character.” 2 Farrand 75–76 (L. Martin); see also id., at 77 (“[T]he Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag[ainst] popular measures of the Legislature”).
The later history of the New York Council of Revision demonstrates the wisdom of the Framers’ decision. The Council naturally became politicized through its intrusive involvement in the legislative process. Over the course of its existence, it returned 169 bills to the legislature; the legislature, in turn, overrode only 51 of those vetoes and reenacted at least 26 bills with modifications. Barry 245. Moreover, “[t]he Council did not shrink from tough stands on controversial or politically charged issues.” Id., at 246. For example, early in its existence, it vetoed a bill barring those convicted of adultery from remarrying and one that declared Loyalists aliens. Ibid. Decades later, it very nearly blocked the bill authorizing the Erie Canal’s construction for policy reasons. P. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation 197–199 (2005). Some members of the Council opposed the bill due to “concern[s] about committing the state to this huge project before public opinion was more clearly and more emphatically in favor.” Id., at 198. Others were concerned that the legislation gave the canal commission arbitrary powers. Ibid. The canal legislation—one of the most important measures in the Nation’s history—survived the Council’s review only because Chancellor James Kent changed his deciding vote at the last minute, seemingly on a whim. Id., at 199.
The Council contributed to its own abolition in 1820, ​when it vetoed a bill passed by the legislature that called for a convention to revise New York’s Constitution. 1 C. Lincoln, The Constitutional History of New York 623–626 (1906) (Lincoln). The State Assembly then issued a report lambasting “the Council for usurping the legislature’s role as the democratic representative of the people”; the legislature subsequently enacted a new bill that succeeded in calling for a constitutional convention. Barry 247; Lincoln 626–629. The same sentiment arose at the convention when, echoing arguments that had also been made in Philadelphia against a federal council of revision, opponents of the Council argued that it had “ ‘usurped the power of judging the expediency as well as the constitutionality of bills passed by the legislature’ ” and that it had “ ‘in fact become a third branch of the legislature.’ ” Barry 247 (quoting N. Carter & W. Stone, Reports of the Proceedings and Debates of the Convention of 1821, pp. 55, 79 (1821)). Unsurprisingly, the Council was abolished, and New York’s 1821 Constitution placed the veto power solely in the Governor. Barry 248.
When courts apply the facial overbreadth doctrine, they function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner. Along the way, courts must examine the sum total of the law’s application to people who are not parties to any proceeding; courts then weigh the law’s various applications to determine if any unconstitutional applications outweigh the law’s constitutional sweep or might “chill” protected speech. That is nothing short of a society-wide policy determination of the sort that legislatures perform. Yet, the Court has never even attempted to ground this doctrine “in the text or history of the First Amendment.” Sineneng-Smith, 590 U. S., at ___–___ (concurring opinion) (slip op., at 2–3). Instead, it has ​justified it “solely by reference to” yet another layer of “policy considerations and value judgments” about “what serves the public good.” Id., at ___–___ (slip op., at 3–4). As the debate over the federal council of revision demonstrates, this approach is fundamentally inconsistent with judicial duty.
This case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law. In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.
* ↑ The term “revise” was understood to mean “[t]o review.” 2 S. Johnson, A Dictionary of the English Language (4th ed. 1773); N. Bailey, A Universal Etymological English Dictionary (22 ed. 1770) (“to review, to look over again”).
* ↑ Later statements of the proposed council’s supporters confirm their understanding that the judicial station is incompatible with making policy judgments. See Moodie v. Ship Phoebe Anne, 3 Dall. 319 (1796) (Elsworth, C. J.) (“Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right”); 8 Writings of James Madison 387 (G. Hunt ed. 1908) (“[Q]uestions of policy and expediency, are unsusceptible of judicial cognizance and decision”).
* ↑ The facial overbreadth doctrine is but one manifestation of the Court’s larger drift away from the limited judicial station envisioned by the Constitution. See J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 36–37 (2010). Justices have long noted that doctrines tasking judges with passing upon the policy of laws in the abstract resemble the council of revision the Framers rejected. See, e.g., Lewis v. New Orleans, 415 U. S. 130, 136 (1974) (Blackmun, J., joined by Burger, C. J., and Rehnquist, J., dissenting) (overbreadth and vagueness doctrines); see also Trimble v. Gordon, 430 U. S. 762, 778 (1977) (Rehnquist, J., dissenting) (suspect classifications under the Fourteenth Amendment); Griswold v. Connecticut, 381 U. S. 479, 513–515 (1965) (Black, J., joined by Stewart, J., dissenting) (substantive due process); Goldberg v. Kelly, 397 U. S. 254, 273–274 (1970) (Black, J., dissenting) (due process for welfare benefits); Saia v. New York, 334 U. S. 558, 571 (1948) (Jackson, J., dissenting) (review of time, place, and manner speech regulations).