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FAIR AND BALANCED... Don't miss the final presidential debate, moderated by Fox News' Chris Wallace, on Wednesday, October 19th at 9:00pm ET on Fox News Channel!

Judge Andrew Napolitano discussed two topics both candidates hold strong positions on that may not be within their executive purview if elected president.

"The next Supreme Court appointments and the candidates' positions on immigration," Napolitano told Shepard Smith.

"Donald Trump has been touting that he's going to build a wall and that Mexico is going to pay for it: Can he build the wall on his own? No," Napolitano said, "He would need authorization from Congress...[they'd] need to pay for land and pay for the [physical] wall."

A transcript of one of Hillary Clinton's paid speeches to Goldman Sachs revealed that "in her ideal world, there'd be free trade and you'd be able to move from country to country," Napolitano said.

Some have referred to the idea as an "open hemisphere".

"That also would require Congressional legislation," he said, "in both of these areas what they want to do would require approval of Congress."

Napolitano said Trump's stated plan to curb immigration from the Middle East would be Constitutional if it weren't based on religion, saying that a federal judge would stop such action if Trump ordered it.

Regarding the Supreme Court, Napolitano said if Clinton won the election, the Republican-controlled Congress would likely race to confirm President Obama's choice, Judge Merrick Garland, because anyone Mrs. Clinton would select would be considered more unpalatable for conservatives.

He called the replacement of Antonin Scalia and any number of possible retirees from the bench "an enormous opportunity to put their ideological stamp on the court."

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