Jackson, J., dissenting
its prosecutorial discretion several times.” Ibid. But we were not moved: Such a prosecution was permitted by the statute, we noted, and that was enough to make it a serious threat. “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.” Ibid.
Second, just as in Stevens, “[t]his prosecution is itself evidence of the danger in putting faith in Government representations of prosecutorial restraint.” Ibid. At trial in this very case, the Government objected to Hansen’s proposed jury instructions, which would have required, among other things, that the Government prove that Hansen intended the noncitizen in question to reside in the United States illegally. The Government’s objection was telling. It was based on the argument that the proposed instructions added elements not found in the text of the statute itself. And the District Court was persuaded; it sided with the Government in that regard.[1] But now that the statute’s validity hangs in the balance, the Government has reversed course entirely—it now implores us to read into the statute the very element that it earlier opposed as atextual. See Brief for United States 23–28.
This debacle exemplifies the real and ever-present risk of continuing to have facially overbroad criminal statutes on the books. In its role as prosecutor, the Government often stakes out a maximalist position, only later to concede limits when the statute upon which it relies might be struck down entirely and the Government finds itself on its back foot.[2] I am not suggesting bad faith on anyone’s part; these
- ↑ As the Government conceded during oral argument before this Court, given that its elements argument prevailed below, the instructions that the District Court gave to the jury in this case were legally erroneous. See Tr. of Oral Arg. 11; see also id., at 39–40 (acknowledging that the Court “should send the case back to the Ninth Circuit and let the Ninth Circuit decide what’s appropriate in light of” the flawed instructions).
- ↑ The Court has seen similar moves in multiple cases just this Term.
