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Chief Justice Roberts' Wild Question About Congress And Immigration

The Huffington Post The Huffington Post 3/11/2015 Cristian Farias

WASHINGTON -- During oral arguments in a Supreme Court case that has the tech industry on alert, Chief Justice John Roberts asked a strange hypothetical Monday about an immigration statute that doesn't exist. 

If you didn't know any better, you'd think the idea for it came directly from Arizona Sheriff Joe Arpaio's playbook.

"Let's just kind of say your Congress thinks that the president is not doing enough to stop illegal immigration," Roberts prefaced his question, "so it passes a law that says, 'Anyone in a border state ­­...­­ who is unemployed may bring an action against an illegal immigrant who has a job.' And they get damages. And maybe they get an injunction."

"Can Congress do that?" he asked.

The question was directed at the lawyer for the federal government, which is supporting the plaintiff in Spokeo v. Robins, a sleeper case that could have major repercussions for citizens' access to federal courts -- specifically, the ability to sue and form class actions against companies that violate federal law.

The case represents an important constitutional dispute between Congress' lawmaking power and the judiciary's interpretation of it. But Roberts' question was odd. Still, Deputy Solicitor General Malcolm Stewart played along.

"Well, I think there would be a couple of different problems with that," Stewart said. "The first would be that there may be some ­­... legal issues that Congress can't simply delegate to private enforcement -- like the criminal law, for instance." He then suggested there may be constitutional issues with lawmakers going that route.

After a nod to Stewart's avoidance of the hypothetical question, Roberts kept pressing him.

"Yeah, we're talking about [a situation in which] Congress says, 'Well, these people who are unemployed illegal immigrants have jobs," he said. "[People] should be able to sue to stop that. Because, you know, Congress thinks the president isn't doing enough."

Stewart shot back: "I think that would stretch the limits of Congress' power to treat ... that broad class of individuals as victims of all acts of illegal immigration.  And obviously the statute that we're dealing with here doesn't come anywhere close to that."

Here's hoping this exchange between the chief justice and the federal government --which you can read in full here -- doesn't give Congress any ideas. A decision in Spokeo v. Robins is expected sometime before June.

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