As promised, after assuming office President Donald Trump immediately began signing executive orders reversing several policies of the Obama administration — including the famous “travel ban.” And as expected, Democratic politicians and liberal activists objected. As usual, they used the courts to try to get what they couldn’t get politically.

Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” put into place a 90-day ban on immigrants and refugees from seven countries known for terrorism. The explanation in the EO stated, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.”

The president has argued that he was doing what the law allows him to do. The relevant federal statute (see the sidebar below) authorizes the president to suspend immigration as long as necessary in order to protect the country.

Doing What the Law Lets Him Do

The Attorney General of the state of Washington decided to challenge the EO. He apparently went “judge shopping,” and found a sympathetic federal judge in Seattle who had once represented refugees pro bono. Judge James L. Robart did not recuse himself, even though the law requires federal judges to recuse themselves from cases where they have a conflict of interest.

He issued a temporary restraining order halting the ban. The state of Minnesota also joined the lawsuit. The Trump administration appealed to the United States Court of Appeals for the Ninth Circuit, asking for an emergency stay of the TRO. The Ninth Circuit is the most liberal of the federal circuit courts. The economist Thomas Sowell once said that someday that court “may declare the Constitution unconstitutional.”

A three judge panel refused to lift the TRO. In a 29-page decision issued on February 9, the court declared that the EO was not likely to be found constitutional, and the failure to enter a stay would not cause irreparable injury.

The administration asserted that the court doesn’t have the authority to review the EO. “It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” the judges responded.

And they weren’t going to help the administration improve it. “More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

The Panel’s Reasoning

How did the panel justify their decision, when the EO seems to be perfectly legal under federal law?

First, the three judges addressed whether the two states had standing to file the lawsuit. In order to bring a lawsuit in federal court, someone must have a personal stake in the issue and show the injury will cause real damage soon that can’t be repaired later.

Liberal Harvard Law Professor Emeritus Alan Dershowitz said the Ninth Circuit’s ruling “looks like it’s based more on policy than on constitutionality.” Trump would be better off rewriting it than fighting it in court.

The panel declared that the states had shown that the ban would hurt their public universities by keeping students from attending and the damage would be irreparable. This has been criticized as a stretch. The connection between the state and immigrants attending its universities affected by the ban isn’t very direct. Nor is the harm imminent, as no immigrants have been stopped yet from attending.

Second, the court addressed the question of whether the ban would succeed on the merits and be upheld by a higher court. The court said it wouldn’t because it wasn’t constitutional.

The panel opined that it violates the due process rights of certain types of immigrants. In particular, the three judges said they “cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” They also hinted that the ban wasn’t likely to succeed because it constitutes religious discrimination against Muslims.

The court was dismissive of the administration’s claim that the TRO could cause the country irreparable harm. “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

Critics of the decision argue that this ignores the fact that several nationals from those countries have been arrested on suspicion of terrorism. Being killed by terrorists would certainly constitute irreparable harm for the victims.

The President Is Not Pleased

Trump tweeted his outrage that the opinion didn’t even mention the federal law authorizing his EO.

LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!

— Donald J. Trump (@realDonaldTrump) February 10, 2017

If Trump appeals to the U.S. Supreme Court, he could lose there too. With his SCOTUS nominee Neil Gorsuch not yet on the court, it tilts to the left. Even if the swing vote Anthony Kennedy votes with the conservative wing, the result would be a 4-4 split, which means the Ninth Circuit’s decision stands.

Of course, the Ninth Circuit is the circuit court whose decisions are most reversed by the Supreme Court. Even some on the left are criticizing the decision. Liberal Harvard Law Professor Emeritus Alan Dershowitz explained on MSNBC’s Morning Joe that the EO was constitutional, but the legal battle would take too long. He said Trump would be better off rewriting it. The ruling “looks like it’s based more on policy than on constitutionality,” he noted.

Trump is reportedly now redoing the EO to comply with the Ninth Circuit’s opinion. “We’ll be doing something very rapidly having to do with additional security for our country,” he announced during a press conference yesterday. “You’ll see something next week.”

If a court overturns the new order, it will be the first time Washington state sets immigration law for the nation.