AT AN extraordinary, phoned-in hearing on February 7th, three federal judges heard arguments in Washington v Trump, a fight over the legality and constitutionality of the 45th president’s order suspending America’s refugee programme and banning travel from seven Muslim-majority countries. The executive order, announced on January 27th, was halted on February 3rd when a federal district judge in Seattle, James Robart, issued a temporary restraining order against it in response to a complaint by the state of Washington (later joined by Minnesota) that the ban was causing irreparable harm to “employment, education, business, family relations and freedom to travel”. The Trump administration reacted with a series of angry tweets (including a dismissal of Mr Robart as a “so-called judge”) and asked the Ninth Circuit Court of Appeals in San Francisco to reverse the judge’s decision and reinstate the travel restrictions.

Only 96 hours elapsed between the order lifting the ban and the appeals court’s hearing to reconsider it, leading lawyers for Washington state and the Justice department to lament during the argument, which lasted more than an hour, that the proceedings were moving awfully fast. August Flentje, the attorney defending Mr Trump’s plans, had the rougher stint before the judges, William Canby, Richard Clifton and Michelle Friedland. Mr Flentje began by arguing that Mr Robart’s ruling had “upset” the “balance” the Trump administration had struck between “welcoming people into our country” and “making sure our country is secure”. That balancing is the task of the “political branches”, he said, not the courts. But when pressed repeatedly to cite evidence showing that the seven countries covered by the ban—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—posed an actual risk of terrorism to America, Mr Flentje had little to offer. Merely mentioning Obama administration judgments about the countries in 2015, one judge complained, is “pretty abstract”.

Facing steady resistance from the panel, Mr Flentje said, late in his presentation, “I’m not sure I’m convincing the court”. He then switched to an apparent plan B, pleading with the judges to at least consider lifting Mr Robart’s restraining order with regard to “people who have never been to the US”. Washington state’s arguments, Mr Flentje said, were premised on harms imposed on lawful permanent residents of the United States. But their case, Mr Trump’s lawyer insisted, provides no good reason to give every foreign national from those seven countries free rein to fly to America.

This last-ditch argument—that Mr Robart’s move went too far, covered too much—was Mr Flentje’s best, though he spent only a few minutes developing it. It was resurrected in the second half of the hearing when Mr Clifton put it to Noah Purcell, the lawyer from Washington state. In response, Mr Purcell noted a couple of reasons why the travel ban should be halted in its entirety: in targeting Muslims, he said, it violates the First Amendment’s Establishment Clause; and the interests of long-time residents of America are harmed when their relatives in the Middle East and North Africa are banned from visiting them.

The toughest exchange for Mr Purcell came when Mr Clifton questioned the claim that Mr Trump’s travel ban discriminated against Muslims. The seven countries named in the ban, he noted, “encompass a small percentage” of the world’s Muslims—perhaps only about 15%. How can the ban be said to target Muslims if so many are left unaffected? Here Mr Purcell cited Mr Trump’s promise during the 2016 election that his intention was to ban Muslims and cited other recent public statements by Mr Trump and his allies demonstrating discriminatory motivation. Later, in a short rebuttal, Mr Flentje said that thwarting a president’s national security plans “based on some newspaper articles” was “extraordinary”.

At least two of the judges seemed likely to side with those challenging Mr Trump’s travel ban, and even the third, Mr Clifton, might join a ruling against the government. The only question at this stage is whether to re-impose the executive order pending further proceedings in the Seattle district court. The burden of proof rests on the government to show that such a move is necessary to prevent irreparable harm, and little Mr Flentje said seemed persuasive to the panel. So the most likely scenario seems to be that the ban remains on hold, for now—or until the government takes its case to the Supreme Court. Given the 4-4 ideological split on the high court, the on-again, off-again travel rules are likely to remain in limbo.