Judge Michael Farbiarz has gone full-fledged Britney Spears—he did it again.
Another judicial overreach, another breach of the separation of powers—this time sparkling in legalisms, choreographed for political theater, and staged by the progressive legal cartel.
After previously denying Mahmoud Khalil’s release and seemingly acknowledging the Department of Justice landed on solid statutory ground, the judge has now reversed course—again.
This time, in a dizzying turn that flouts immigration procedures, judicial restraint, and common sense, Khalil has not only walked free but also walked out with a golden ticket to lobby Congress.
The reason? Judge Farbiarz now appears to believe the government’s justification may be retaliatory—an attempt to punish Khalil for his political views. “There is at least something to the underlying claim that there is an effort to use the immigration charge here to punish the petitioner,” he said from the bench, calling such a move unconstitutional.
Then, on the heels of a hastily convened telephone hearing, a magistrate judge issued release conditions that included a tailored carve-out: Khalil may travel to Washington, D.C., for “lobbying and legislative activity.”
Let that sink in.
The judiciary, which until now has had no recognized authority under federal law to supervise foreign policy or prescribe non-criminal bond terms for deportable aliens, has now decided it can choreograph congressional visits for someone accused of lying on immigration forms and aligning with a designated terrorist organization.
The Court’s order authorizes Khalil—a non-citizen under a final removal order from an immigration judge—to engage in “lobbying and legislative activity” in Washington, D.C., without requiring any disclosure or oversight.
He is not required, under the terms of the order, to register under the Foreign Agents Registration Act (FARA), a statute that mandates individuals acting on behalf of foreign interests disclose their affiliations and activities to the federal government.
There is no clarity about who he will meet, what legislative business is at stake, or what foreign or domestic interest he may be representing.
“Highly, highly unusual,” Judge Michael Farbiarz said—referring to the government’s justification for detaining Mahmoud Khalil.
But the true aberration is not the administration's case. It’s the contortions of law and logic now emerging under the guise of a habeas action.
Federal immigration law once rested on an iron rule: Article III judges do not substitute their preferences for the findings of immigration courts—let alone override executive branch decisions on the removal of foreign nationals.
There was good reason for this. Congress, which holds the constitutional authority to define judicial jurisdiction, made that boundary explicit in statute. Judge Farbiarz shattered it.
And yet, for all the courtroom speculation about unconstitutional motives, Judge Farbiarz’s written order says none of it. The word unconstitutional is absent. There is no evidentiary finding, no legal standard, not even a passing citation.
Instead, the order states that Khalil’s release is granted “for the reasons stated in court today”—a phrase that does all the heavy lifting of a legal opinion without bearing any of its weight. No reasoning, no record, no responsibility—just a release order conjured in the haze of a hearing and rubber-stamped into effect.
Perhaps, as before, Judge Farbiarz will issue a supplemental order. He did so earlier this month—denying injunctive relief to Khalil in language the administration reasonably interpreted as affirming its statutory authority to proceed with removal. The Department of Justice pivoted accordingly.
That’s the irony: the same evolving court record that opened the door to an alternative legal basis is now being used to challenge that shift as constitutionally suspect.
But when a federal court signals one thing, and the Executive relies on it in good faith—only to be told that its subsequent action may constitute unconstitutional retaliation—that’s not a stable or sustainable approach to the law. It undermines the predictability the rule of law requires and injects uncertainty where constitutional roles should be clear.
Khalil was a legal permanent resident held under 8 U.S.C. § 1227(a)(1)(A) for material misrepresentation on his immigration paperwork. Those charges—related to undeclared affiliations with foreign entities—are statutorily sufficient for removal.
Indeed, the immigration judge in Louisiana reviewed the facts and denied bond and asylum outright on June 20, issuing a formal removal order on the same day.
Rather than defer to the immigration court’s ruling, Judge Farbiarz reasserted his authority.
What’s more, by granting a release condition that permits Mr. Khalil to engage in lobbying activity, the Court has inserted itself into the political sphere—a breach not merely of prudence but of institutional propriety.
In a nutshell, Judge Farbiarz returned to the habeas petition he’d been tinkering with the past several weeks, bypassed the tribunal Congress empowered to adjudicate deportation, and set in motion a release process that culminated in conditions—including a lobbying privilege—conjured from thin air by the magistrate judge.
This is tommyrot on a farcical scale. A federal court is now in the business of approving bespoke legislative visits by a non-citizen under active deportation proceedings.
So much for Mr. Khalil’s stated wish to spend more time with his family.
Instead, he seems intent on advancing a political agenda—one that, judging by the very facts that landed him in legal jeopardy, stands in direct conflict with U.S. foreign policy.
And true to his word, Khalil pledged to resume his pro-Palestinian activism—and was met at the airport by none other than the progressive princess herself, Rep. Alexandria Ocasio-Cortez.
Let the legislative theater and lobbying shenanigans begin.
Getting down to brass tacks: the Court didn’t just question the constitutionality of the Immigration and Nationality Act (INA)—it lent its robe and gavel to undermine it.
By authorizing a foreign national to lobby Congress—almost certainly in ways that conflict with U.S. foreign policy—it inserted itself directly into conduct that the INA identifies as grounds for removal under 8 U.S.C. § 1227(a)(4)(C). Unreal.
But that door swings both ways. There is still an opening for the Department of Justice—and for the Secretary of State. If Mr. Khalil takes the Court’s indulgence as a license to campaign against U.S. foreign policy actively, each such action could constitute fresh statutory grounds for removal.
Under 8 U.S.C. § 1227(a)(4)(C), the government retains the authority to deport a non-citizen who engages in activity that undermines U.S. foreign policy interests.
What the Court has temporarily framed as protected speech—an issue not yet settled by the appellate courts—may yet be grounds for removal if it crosses that statutory line.
If this ruling stands, it invites chaos. Immigration courts are being reduced to sideshows as federal judges become the go-to venues for progressives to extract celebrity detainees—not for justice, but for politics and, inevitably, it seems, fundraising.
The effect is plain: to sideline the political branches—the constitutional voice of the people—in favor of judicial improvisation.
“Highly, highly unusual”?
Justice Robert Jackson said it better. In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Supreme Court upheld the government’s authority to deport non-citizens for affiliations hostile to American interests, warning that,
[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.
Here’s hoping five justices agree.
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.
