Jackson, J., dissenting
again, the particulars matter. And the history of this particular statute only underscores that it cannot be read as the majority wishes. At every turn, Congress has sought to expand the reach of this criminal law, including by deleting the terms and mens rea requirement that the majority attempts to read back into the statute.
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The history of the encouragement provision is a tale of expansion. Up first was an 1885 law focused specifically on contract labor. Ch. 164, 23 Stat. 332. It made “knowingly assisting, encouraging or soliciting the migration or importation of” a noncitizen into the United States “to perform labor or service of any kind under contract or agreement” unlawful. §3, id., at 333. Congress revised this prohibition in 1917, to add “induce.” §5, 39 Stat. 879. Thus, as of the early 20th century, it was a misdemeanor “to induce, assist, encourage, or solicit … the importation or migration of any contract laborer,” or to attempt to do the same. Ibid.
Significantly for present purposes, in 1952, Congress deleted the statute’s references to solicitation and assistance—leaving “encourages” and “induces” to stand alone. 66 Stat. 229. What is more, Congress expanded the prohibition to all unlawful entry, not merely contract labor. Ibid. And it also ratcheted up the punishment. Ibid. So amended, the statute made it a felony to “willfully or knowingly encourag[e] or induc[e], or attemp[t] to encourage or induce, either directly or indirectly, the entry into the United States” of any noncitizen who had not been “duly admitted” or who was not “lawfully entitled to enter or reside within the United States.” Ibid.
Congress enacted the current version of the encouragement provision in 1986. It removed the mens rea requirement relating to the encouragement or inducement element—excising from the statute that a violator must “willfully or knowingly” encourage or induce a noncitizen to
