Attorney General Eric Holder is being forced to eliminate legal distinctions between straight and same-sex couples in the federal criminal justice system, former New Jersey Superior Court Judge Andrew Napolitano says.
"He has no choice on that because of the Supreme Court's Windsor decision, in which it invalidated a portion of DOMA [Defense of Marriage Act]," Napolitano told "The Steve Malzberg Show" on Newsmax TV.
"The Supreme Court said the federal government has to recognize same-sex marriages. So, let's say a couple married in New Jersey and one of them is in a Veterans Administration hospital in Texas. The spouse of the one in the hospital will be treated as a spouse because they're on federal property.
"This is not telling all Texas hospitals how to do it, just those owned by the federal government. So, he's doing the right thing there. It would be a lot easier if the law were the same everywhere, but it's not."
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Napolitano, a senior judicial analyst for Fox News, also told Malzberg he is alarmed at the caliber of the executive orders President Barack Obama has been issuing in recent months.
"Some executive orders, in fact most of them, are below the radar screen. They complement, they supplement existing legislation," Napolitano said.
"But when an executive order materially alters existing legislation by changing it . . . ."
He pointed to June 2012, when the president was running for re-election against Mitt Romney.
"[He] thought he might lose, and the last thing in the world he wanted was for conservative Hispanics to vote for the Republicans, [so] he comes up with this idea that if you're here and if you're illegal and there's about 11 million of you and most of you are Hispanic, and you don't want to be deported and if you do A, B, C, D, and E, I won't deport you.
"Now, where'd he get the A, B, C, D and E from? There are actually 13 of these; I'm just using five for ease of conversation. He made them up. He didn't get them from the statute. So, basically he's telling people how to avoid federal law when his oath is to enforce federal law."
In that case, the executive order actually defied the law Obama was sworn to uphold, Napolitano said.
"That's when his behavior is unlawful and unconstitutional, and we see that over and over again from him."
He pointed to Obama's announcement over the weekend that will ease restrictions regarding asylum seekers and terrorism sympathizers.
"[That] has serious repercussions. The law is any material assistance to a foreign terrorist organization and you cannot immigrate to the United States," Napolitano said.
"He's going to dial it back by redefining what 'terrorist assistance' is. That's for the Congress to define, not him."
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