Federal judges are not "judicial activists." They are the Talmudic scholars of the law--and often they are poets as well.

An exegesis of the latest court decision in the Mahmoud Khalil case.

U.S. District Judge Michael E. Farbiarz.

Since President Donald Trump took office on January 20 of this year, at least 60 judges and appeals courts have ruled against various aspects of his executive orders. A number of them have been threatened, along with their families. At the very least, they can expect to be branded “judicial activists” by Trump and his henchmen and women, even though they run the gamut between liberal and conservative and were appointed by presidents Ronald Reagan, George W. Bush, Bill Clinton, Barack Obama, Joe Biden, and yes—in a number of cases, by Donald Trump himself.

One of the most widely publicized examples of a conservative judge taking issue with Trump administration actions came this April, when Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit wrote a decision upholding the due process clause of the U.S. Constitution in the case of Kilmar Abrego Garcia, who was “mistakenly” deported to El Salvador and continues to languish in a notorious prison there.

Wilkinson, who was appointed to the federal bench by Ronald Reagan 41 years ago and is considered the dean of conservative judges, did not hesitate to dress down the Trump administration’s draconian position:

“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

In one short opinion, Wilkinson demonstrated that far from being “judicial activists,” judges who uphold the U.S. Constitution are often acting on the most conservative possible principles. They take the Constitution’s now ancient protections against tyranny literally, as the most diehard originalists should be expected to do.

I wonder how many average citizens actually read these judicial opinions, other than journalists and legal scholars whose job it is to explain and comment on them. Forgive me if I assume that those branding their authors “judicial activists” read them even less frequently.

Lately I have been reading a lot of such opinions myself, even the really long ones. Over the course of my career as a journalist I have covered many legal cases, and even been on the defending end of a major defamation lawsuit myself. I also worked for several years on a major case at the ACLU of Southern California during the 1980s. So I have gained a little knowledge of the law, and a lot of interest in how it works and how judges think.

The one thing I can say is that, in most cases, they think a lot. As an example, I want to discuss the May 28 opinion by U.S. District Judge Michael E. Farbiarz, of the U.S. District Court for the District of New Jersey, in the case of Mahmoud Khalil, and Khalil’s habeas corpus petition against the attempts of the Trump administration—personified by Secretary of State Marco Rubio—to deport him because of his pro-Palestinian activities at Columbia University.

Mahmoud Khalil

Judge Farbiarz’s decision in the case was a mixed bag for Khalil. Very importantly, he ruled that Khalil was likely to prevail on his claim that the order of deportation was unconstitutional, because the statute under which Rubio wanted to kick him out was too vague as applied in this case. But he decided that Khalil had not yet met the burden of overturning the government’s position that he should be deported because his application for legal residence in the U.S. was allegedly inaccurate.

For that reason, he denied Khalil’s request for a preliminary injunction, and denied his request to be released from detention. The judge did, however, allow Khalil to present evidence in a subsequent proceeding that might meet the legal bar required to spring him from immigration jail.

It took Judge Farbiarz 106 pages of legal argument to arrive at these conclusions. The text is written in a light tone, often using the Socratic method of argument, and I think any intelligent lay reader could make sense of it—even if they decided to skip over many of the legal precedents cited in the text and in lengthy footnotes.

Let’s just hit some of the highlights.

The essence of Khalil’s legal argument was that the federal statute cited to kick him out of the country, 8 U.S.C. § 1227(a)(4)(C), was unconstitutionally vague—at least as applied in Khalil’s case. The law, as written, allows the Secretary of State to kick even a legal resident out of the country if they “compromise a compelling foreign policy interest,” as Rubio put it in his memo.

But in the judge’s analysis, that law or its application can only be considered constitutional if a person in the United States can reasonably be expected to know what they should avoid doing if they don’t want to be subject to it. As Judge Farbiarz put it:

“Vagueness doctrine requires that a law be clear enough to provide real notice --- understandable guidance as to the conduct a person should steer himself away from, to avoid the negative consequence the law lays out.”

Or, as he put it just a couple of paragraphs later, citing a 2019 case:

“…“[v]ague laws contravene the first essential of due process of law that statutes must give people of common intelligence fair notice of what the law demands of them.”

In other words, the courts routinely deal with the vagueness issue when determining whether a law is unconstitutional or not (state courts do this all the time as well.)

Throughout his lengthy opinion, the judge cited numerous cases, including U.S. Supreme Court decisions, in which laws even less vague than this one had been thrown out due to vagueness. And he pointed out that laws that raise First Amendment issues are at the top of the list for very close constitutional examination.

But remarkably, it turns out that Section 1227, the law Rubio is citing in the Khalil case, has only been closely examined once before by a federal court, back in 1996. In that case, the judge struck down the law as unconstitutionally vague, although apparently that decision did not become a judicial precedent at the time.

As a result, Judge Farbiarz pointed out, there were essentially “no relevant judicial or administrative decisions, regulations, [or] guidance materials” to guide the Secretary of State or judges about how Section 1227 is to be interpreted.

But I think the most fascinating, and in some ways entertaining part of Judge Farbiarz’s decision, was when he got into the question of which foreign policy interests Rubio was talking about. The judge pointed out that “foreign policy” normally means relations with other countries, and he cited some dictionary definitions to back that up. The judge thus comments (quoting at length so readers can really get the flavor):

“Congress empowered the Secretary of State to seek removal of foreign nationals if they compromise American “foreign policy” interests --- which here means a compromise to the United States’ relations with another country or countries.

But the Secretary did not affirmatively determine that the Petitioner’s alleged conduct has impacted U.S. relations with other countries.

Indeed, the Secretary’s determination says nothing about any country other than America.

It also does not mention a region of the world that encompasses particular countries.

And while it cites an executive order, the order does not mention any country other than America or any global region.”

A little later, the judge heavily implies that there was no way Mahmoud Khalil could have reasonably known that what he was doing at Columbia could get him ejected from the country, because he could not have reasonably known that what he did was supposedly detrimental to U.S. foreign policy.

(Please recall that Khalil was participating in demonstrations and other actions protesting what many human rights activists are now saying constitute genocide on the part of Israel in Gaza. One could argue that doing this is actually good for U.S. foreign policy because as a nation we are supposed to be against genocide and other human rights violations and war crimes. One could even argue that Khalil should be honored and rewarded for his strong moral stance, along with the increasing number of Americans who agree with it.)

At this point we are less than half way through the decision, because Judge Farbiarz goes on to drill down considerably on the vagueness question, judicial precedent, and so forth. But key to all of this is the question of whether the government can arbitrarily decide when its laws are being broken, without clear guidance from either the text of the laws or their judicial interpretation. The critical issue, he writes, is “what the statute does and does not empower the government to do.”

I think this is really the key point. If the government—in this case Trump and Rubio—can essentially pull a law out of a hat and use it to throw someone out of the country purely for their speech and other First Amendment activities (remember that Khalil has been accused of violating no other laws) then we are in danger of tyrannical rule.

Towards the end of his decision, Judge Farbiarz returns to just these First Amendment considerations. “When it comes to First Amendment-protected speech, the Supreme Court has repeatedly said that vagueness doctrine is especially demanding.” Indeed, he adds a couple of pages later, “the bar is raised to its highest level.”

In other words, the government has to leap a very high bar in such cases, and in the judge’s view, it has failed to do so in Khalil’s case. That means that if the case continues, Khalil is likely to win, and might ultimately be entitled to being released from immigration detention while he fights his case.

I will not insult my own readers’s intelligence by trying to argue any further that this judge, who was admittedly appointed to the federal bench by President Joe Biden in 2023 but confirmed by the U.S. Senate in a 65–34 vote, was not engaged in “judicial activism” when he wrote this opinion. And I do not expect anyone to read 106-page opinions of this nature, even if it might be necessary to do so to really see how judges are thinking these days when they overturn one Trump initiative after another. The serious news media often has good descriptions of the reasoning in these cases, as short as those articles usually are. Sometimes that can suffice.

Nor do I really expect Trump supporters and MAGA cult followers to read them, although they would certainly benefit if they did. All I can say is that the law, when faithfully and honestly applied, has its majesty, its sense of justice, and yes, often its poetry. It can be abused, of course, and all too often is, but it is a thing of beauty nevertheless—in the sense that there is a beauty to human morality and living by a moral code.

Let us not worship the law, but let’s admire and respect it. Sometimes it is all we have in times like this, when cynicism, cruelty, and abject evil are loose upon the land.

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