16 Mar 2017
Attorney Robert Barnes joined SiriusXM host Alex Marlow on Thursday’s Breitbart News Daily to discuss his latest Breitbart News column, “Hawaii Obama Judge Rules Muslim Imam Has Special Constitutional Rights to Bring Anyone from Terror Countries into America.”
Marlow asked Barnes to begin by explaining why Trump’s temporary ban on various terror countries was blocked.
“The district court judge in Hawaii, who was a fellow law graduate of Harvard law school with former President Obama – and, in fact, Obama was in Hawaii yesterday before the decision was issued, so some people have speculated on the coincidence of that. But he issued a decision that blocks the ability of anybody to enforce the order anywhere,” Barnes said. “So he went beyond just the district of Hawaii. He said no state can enforce it. Nobody in any part of the country can enforce it. Nobody anywhere in the administration can enforce it. He issued what’s called a nationwide injunction, and it precludes any application of the order, pretty much, on any aspect of the order, pretty much, until there’s further review.”
“His basis for doing so was an extraordinary interpretation of the right to travel and the freedom of association, which before, has only been associated with U.S. citizens,” Barnes continued. “Every court decision in the 200 years prior to this has said that people who are not citizens of the United States, who are not present within the United States, have no First Amendment constitutional rights. The Constitution doesn’t extend internationally to anybody, anywhere, anyplace, at any time. Instead, this judge said it did, as long as you had a university here who wanted to assert, quote-unquote, the foreigner’s rights, or you had some physical person here. In this case, it was one of the leading Muslim imams in Hawaii; he wants to bring over various family and friends from the Middle East.”
“The Hawaii judge’s decision says he has a First Amendment constitutional right to do so because he’s Muslim. It was one of the most extraordinary interpretations of the Establishment Clause of the First Amendment ever given, which is that because these are Muslim countries that were banned where the issue of terror arises from that that meant they had a special right to access the country and visit the country,” he said.
“As long as there is somebody here that wants them here, no president can ever preclude them from coming here. He basically gave First Amendment rights to everybody around the world and gave special preferences to people who are Muslim under his interpretation of the First Amendment,” Barnes summarized.
“So it’s an extraordinarily broad order. Its legal doctrine has no limits. If you keep extending this, it means people from around the world have a special right to access the United States, visit the United States, emigrate to the United States, get visas to the United States. There wouldn’t be any limit, and the president would never be able to control our own borders. It would be up solely to the whim of a federal judge who effectively delegated it, in this case, to a Muslim imam in Hawaii,” he contended.
Barnes noted that the judge did not “cite any prior decision” that has ever established this astonishing new quirk of the Constitution.
“Just last year, the Supreme Court implicitly said the opposite, when they said your right to association does not include a right to bring foreigners into the United States, in the Din decision,” he pointed out. “Now, there were several concurrences, so the binding precedent of that has been left open, but he does not even reference or mention or discuss the decision. He doesn’t even mention the statute, the main statute that gives the president the right to ban any alien from the country, for any reason the president deems appropriate, for any temporary time period, that the president yesterday cited in his national speech. Like the prior Ninth Circuit decision, the Hawaii judge never mentions the decision at all.”
“So there’s no real legal precedent. He’s taking three or four different concepts that have been applied in completely different areas of law, that only ever have historically applied to U.S. citizens, and he’s magically adding it to foreigners and acting like that’s always been the case when it’s never been the case,” he said.
“It is a product of what I call liberal law school education that was happening when I was in law school, which is they’re increasingly teaching lawyers to replace objective analysis with their subjective preference, but to pretend their subjective bias was really objective reality, even when it wasn’t,” Barnes said. “They basically taught you to lie to yourself about what the law really was and what it really stood for.”
“Obama reflects that, and this judge deeply reflects that,” Barnes asserted. “He’s someone whose opinion would be taken apart. If it was a first-year law school exam, he would get an ‘F’ because of how badly he misapplied the law. Unfortunately, in the liberal law school mentality, it’s what they’ve taught people to do. This judge, who’s a relatively recent judge, he’s been on the bench a few years, extended it in that way.”
“To give you an idea of how bad it is, yesterday, five Ninth Circuit judges dissented from reviewing the decision about the prior Ninth Circuit decision,” he pointed out. “The prior Ninth Circuit decision effectively became moot when President Trump replace his old executive order with the new one, and these five judges said that prior decision was so bad that they needed to vacate the decision and should vacate the prior decision, even though that’s very rare under those circumstances. They referred to the obligation to correct the ‘manifest many, obvious, fundamental errors’ that went against all the precedent the guy overlooked or neglected in the prior panel decision.”
“It was one of the harshest condemnations ever issued, and one of its authors was former chief judge of the Ninth Circuit Alex Kozinsky, who is regarded as one of the best and brightest judges from anywhere in the country, even though he’s usually more on the liberal side of the spectrum,” he noted. “What they all pointed out is it doesn’t matter what your politics are, the law is clear. There was no basis for the prior Ninth Circuit decision. Well, this Hawaii decision goes further than any court had ever gone before. Hopefully, it will get reviewed and reversed, but in the interim, the country’s safety is put into jeopardy because one federal judge decided to anoint himself the one Supreme Court of the country.”
Marlow asked if President Trump had any recourse, other than waiting for a higher court to overturn the Hawaii decision. Barnes suggested he could “always do a true Andrew Jackson, since he was there yesterday,” referring to Trump’s visit to Andrew Jackson’s grave.
“When the Supreme Court issued a decision, Andrew Jackson’s famous comments were, ‘Well, they’ve issued their decision; now, they can enforce it,’” Barnes recalled. “He was the last president to really challenge a Supreme Court usurping authority they did not have.”
“In this particular context, because it’s a district court decision – Professor Dershowitz even argued this, earlier in the cycle, when the Ninth Circuit even issued its decision – was that because there was a conflict between the courts, because you have a court in Boston that actually approved of the original Trump order, a great detailed order, 21-page order, cited by the five Ninth Circuit judges yesterday – the president would be in his legal rights to say: ‘There’s a conflict between the courts. Until the Supreme Court addresses this, I’m going to do what’s appropriate to keep the country safe,’” he suggested.
“The flip side is if he did that, the media would go on a field day and say the president thinks he’s above the law and is refusing to honor a court order,” he acknowledged. “He’s more likely to wait for this issue to get adjudicated. It ties his hands, unfortunately, and endangers the country in the interim, but politically speaking, he’s sort of put between a rock and a hard place. His only real alternative is to either go full Andrew Jackson or let it play out in the courts, and in the interim, the order is not enforced.”
“You definitely can do impeachment proceedings,” Barnes said when Marlow asked if there was any course of action that could be taken against the Hawaii judge for abusing his authority.
“I do think that all the political pressure put on the courts and all the public criticism by legal scholars and everybody else publicly about these decisions, and how reckless they are, and how dangerous they are to the well-being and safety of the country, and how anti-democratic they are, and how they mirror and reflect the aspects of Obama’s shadow government undermining the government through its Deep State connections and its undemocratically elected officials has real value,” he said.
“That’s even reflected in the decision of the five judges yesterday who were so harsh in the criticism of their former colleagues,” he pointed out. “They mention that the attention drawn to the court is a particular concern to them in jeopardizing the credibility of the court – because, at the end of the day, America’s courts only have power as long as people respect and believe and have confidence in the independence and integrity of those courts.”
“As that gets sacrificed, courts lose power, and we may return back to a time and place where someone like President Trump needs to go back to Andrew Jackson and invoke his tradition and legacy in order to challenge judicial usurpation of the safety and security of the country. At the current time, there’s not a lot we can do without being willing to go full Andrew Jackson against the court system,” he judged.
“Impeachment is always an option in the House. Some congressmen could pursue it because of these judges usurping their authority and invading the security and safety of the country, and violating the tripartite branches of power, where the judiciary is always supposed to have respected the president in this area. But right now, there’s not a lot we can do under the current political and legal environment,” Barnes concluded.
He agreed with President Trump’s contention that this level of judicial overreach was unprecedented.
“When you have law professors like Jonathan Turley or Alan Dershowitz or Jeffrey Toobin saying that the prior Ninth Circuit decision – which did not go as far as this case did, as the Hawaii judge did – saying it basically is bad law, then you know how bad the law actually is,” Barnes said. “It’s law that has no precedent, that has no historical application. For example, the Supreme Court and our Congress banned anarchists from coming into the country. It banned people that were Communists from coming into the country. We have always been able to use just mere ideology as a test.”
“We’ve also favored several religious groups, disfavored other religious groups,” he added, agreeing with Marlow’s example of how the Obama administration treated Christian refugees.
“This Hawaii judge is close friends with Obama, may have met with Obama before the decision was issued, is here condemning President Trump from just trying to keep the country safe as to who can come in. Well, if you apply his doctrine legally, how was Obama drone-bombing Americans and all kinds of people overseas? So you don’t have a right not to be drone-bombed, but you have a right to live next to somebody in the state of Hawaii or anywhere else in the country?” he asked sarcastically.
“There’s no logic. If you start to apply logically all of the consequences of this judge’s ideas, it goes to places that would destroy the whole concept of borders, destroy the whole concept of nationhood sovereignty, destroy the presidential prerogative to destroy our borders. There’s just no limit to where this judge’s decision could go,” Barnes warned.
He said there is no question executive power has been used in a discriminatory fashion against Christians “for almost the entire Obama tenure, particularly the Syrian Christians and others who were being actually harassed and persecuted.”
Barnes said the judicial action against Trump’s revised executive order dispelled the notion his first order was merely worded poorly or rolled out in a clumsy manner. “No, the problem is you have Deep State saboteurs, and you have unelected officials who think they’re above the law try to create the law, try to change the law, try to rewrite the law.”
“The problem wasn’t how he rolled out the prior order. The problem is, the opposition are people who don’t respect democratic elections and don’t respect the limits of their office,” he charged. “This problem is now right center with the way this judge issued his decision and particularly applying it nationally. He prevented every other federal judge, every other federal circuit, from weighing in on the decision because he unilaterally opposed it across the whole country – which both the Supreme Court and the Ninth Circuit have said you’re not supposed to do, in cases just like this,” Barnes said.
“Judges think they can do whatever they want, whenever they want, wherever they want, however they want. The media will celebrate them. Nobody will do anything negative or adverse to them. And the only person pushing back on it is President Trump,” he said.
Breitbart News Daily airs on SiriusXM Patriot 125 weekdays from 6:00 a.m. to 9:00 a.m. Eastern.
Listen to the full audio of the interview above.