Jackson, J., dissenting
fails to support this connection—tenuous on its face—with any evidence that Congress actually consulted our 1947 decision when it drafted the 1952 amendments, or anything else that might establish the primary significance that the majority ascribes to our decision’s phrasing.
The majority similarly characterizes Congress’s decision to remove the intent requirement from the statute in 1986 as “a further effort to streamline” the encouragement provision. Ante, at 16. In other words, the Court today holds that Congress’s removal of “willfully or knowingly” in the 1986 amendments did not change the mens rea required to violate this statute. But the majority offers no support at all for its view that Congress didn’t really mean for the amendment to effect any substantive change. Instead, it conjures up its own “simple explanation”: There was “no need” for an explicit mens rea because “encourage” and “induce” carry the mens rea associated with solicitation and facilitation. Ante, at 15; see also ante, at 14 (reasoning that Congress’s use of “encourages” and “induces” brought along the “old soil” of “the traditional intent associated with solicitation and facilitation” (internal quotation marks omitted)). Of course, this argument merely assumes that Congress intended for “encourage” and “induce” as they appear in the encouragement provision to mean “solicit” and “facilitate”; it is a repackaging of the majority’s unwarranted conflation of those terms. See Part II–A, supra.
The majority also invokes the presumption that a criminal law contains an intent requirement even where Congress does not explicitly include one. Ante, at 15–16. But, here, the statutory history undermines that presumption. Congress most certainly focused on the mens rea question because it not only decided to remove “willfully or knowingly” from the statute, it did so while inserting a separate mens rea requirement for the knowledge of the noncitizen’s immigration status. The confluence of these choices implies
