Judicial restraint, this was not.
In a sweeping order defying settled law, Judge Michael Farbiarz—a Biden nominee championed by Senator Cory Booker—halted the deportation of Mahmoud Khalil. The ruling is not merely legally flawed—it is an impudent attempt by a single district judge to usurp the constitutional authority of both Congress and the Executive over immigration and foreign policy.
Khalil’s removal was authorized under the Immigration and Nationality Act of 1952 (INA), which empowers the Executive to deport noncitizens whose presence undermines U.S. foreign policy interests. That statutory authority—delegated to the Secretary of State—encompasses exactly Khalil’s case.
Instead of exercising judicial restraint, Judge Farbiarz cast doubt on the constitutionality of the INA’s foreign policy provision itself—suggesting that its use in Khalil’s case may violate the First Amendment.
If the INA were truly constitutionally defective, it would fall to appellate courts to make that call—not a single trial judge reaching beyond precedent to impose personal doubts in place of settled doctrine.
The notion that this provision—applied sparingly by every administration—suddenly offends the Constitution when invoked under President Trump reveals more about the judge’s perspective than it does about the law.
Judge Farbiarz’s decision to block the deportation of Mahmoud Khalil stands not only in tension with statutory law—it runs headlong into decades of binding precedent.
As the Supreme Court affirmed in Harisiades v. Shaughnessy (1952), when President Truman’s administration moved to deport longtime residents over Communist affiliations, the Court did not flinch. It held unequivocally that “the policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference” (342 U.S. at 588).
The Court acknowledged the severity of deportation but declared it “a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state.”
Even when lawful residents faced expulsion after decades in the U.S., the Court upheld Congress’s broad authority—rooted not just in statute but in sovereignty itself.
If due process did not shield communist aliens from deportation during the Cold War, it certainly would not protect an activist who has publicly praised groups designated as foreign terrorist organizations.
Additionally, what stands out is Judge Farbiarz’s disregard for the jurisdictional limits Congress wrote into law—most notably in the INA, enacted just months after Harisiades v. Shaughnessy reaffirmed that immigration enforcement lies squarely within the political branches.
In Harisiades, the Supreme Court left no ambiguity: the power to deport—even for political ideology—belongs to the sovereign, not the judiciary.
Congress codified that principle in the Immigration and Nationality Act of 1952.
Section 1252(a)(2)(B) expressly strips courts of jurisdiction to review discretionary removal decisions. Section 1252(f)(1) goes further still, limiting injunctive relief in immigration enforcement to the Supreme Court itself.
While some argue § 1252(f)(1) targets class-wide injunctions, the broader statutory scheme reflects Congress’s unmistakable intent to curb judicial interference in discretionary immigration decisions.
Judge Farbiarz didn’t just ignore precedent—he bulldozed it, insinuating that a long-settled statutory rubric is somehow constitutionally suspect when applied to a Columbia protester, buoyed by the progressive immigration cartel and the usual suspects in legacy media.
Judge Farbiarz demands what the INA never requires—injecting judicial discretion into a realm where Congress expressly vested authority in the Executive Branch, including the Secretary of State, and through 8 U.S.C. § 1252(a)(2)(B), stripped federal courts of jurisdiction to second-guess such discretionary determinations.
This is judicial activism, pure and simple—an aggressive encroachment on the constitutional authority of the two political branches. In effect, a single district judge has overruled the duly delegated discretion of the Executive Branch and the clear command of Congress, substituting personal skepticism for the statutorily delegated judgment of the Secretary of State.
The Trump administration will no doubt appeal—and rightly so. Congress made its intent unmistakable: discretionary immigration decisions grounded in foreign policy and national security rest with the Executive.
The Supreme Court has affirmed this time and again, from Harisiades v. Shaughnessy to Mathews v. Diaz to Trump v. Hawaii. If allowed to stand, his ruling threatens to reduce immigration enforcement to a patchwork of injunctions issued by district courts openly hostile to the very laws they are bound to interpret—or, in many instances, as here, lack the jurisdiction to interpret in the first place.
Judicial restraint is not merely a philosophy—it is an imperative, especially at the trial court level. District judges are not free-wheeling philosophers of law; they are constrained arbiters tasked with applying statutes faithfully—not rewriting them to match personal ideology.
When Congress enacts a law, and the Supreme Court affirms its constitutionality, a single district judge lacks both the institutional standing and the legal authority to declare otherwise.
Judge Farbiarz’s ruling abandons restraint, exceeds his judicial role and injects volatility into an area of law where clarity and deference are paramount. His obligation was to apply the INA as written—not to question its validity or subvert its application.
This so-called victory for Khalil will likely prove fleeting. And when the order is overturned on appeal, as it must be, the same progressive advocates who cheered this overreach will wail about the very chaos their judicial hero created.
Charlton Allen is an attorney and former chief executive officer and chief judicial officer of the North Carolina Industrial Commission. He is founder of the Madison Center for Law & Liberty, Inc., editor of The American Salient, and host of the Modern Federalist podcast. X: @CharltonAllenNC
image, Pixabay license.
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