If there was a single question at the center of Tuesday afternoon’s hearings on President Trump’s executive order keeping people from seven Muslim-majority nations and all refugees out of the country, it was this: Do the courts, or the American people, have any recourse when the President lies? Judge James Robart, of the U.S. District Court, in Seattle, had granted the states of Washington and Minnesota a temporary restraining order that put a hold on Trump’s ban, pending further hearings in the next two weeks. The Justice Department had gone to the Ninth Circuit Court of Appeals to ask for an emergency stay of that order, meaning that it could continue to keep people out and revoke tens of thousands of visas before any court had a say—and even then, the Trump Administration argued, the courts were not allowed to say much. The three judges on the appeals court—Michelle Friedland, Richard Clifton, and William Canby—wanted to know what, exactly, the emergency was.

August Flentje, a special counsel to the Assistant Attorney General, who was arguing the case for the Trump Administration, said, in effect, that the emergency was that the restraining order got in the way of the President’s power to say that there was an emergency—to announce that the country was in danger. Putting a hold on the ban “overrides the President’s national-security judgment about the level of risk,” he said. It was the President’s job to make that determination, not any court’s. And the court also needed to put aside any talk about this being a Muslim ban, because that was not, technically, what the language of the order said. The judges had to believe the President when he said it was all a matter of the country being in immediate peril, and not about his views of any religion or about the demographic future of America. And they certainly shouldn’t pay attention to any reports that the President had, indeed, cited those very reasons for instituting a ban—Flentje dismissed those as “some newspaper articles.” The judges should just look at the language of the order and believe.

From the beginning of the hearing, which took place by conference call at 3 P.M. Pacific Time, with half an hour allotted to each argument, the judges—who said that they would move quickly to make a decision—pushed Flentje on his claims. “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?” Judge Friedland asked, a few minutes in.

Flentje said that “numerous foreign individuals” had committed crimes since September 11, 2001, and that the President had determined that there were “deteriorating conditions in certain countries.” When he was asked if the government had pointed to any evidence connecting those particular countries to terrorism, he rejected the idea that it had to. “These proceedings have been moving very fast,” Flentje said. He noted that President Barack Obama had once cited these countries in making changes to the visa-waiver program. (Steve Coll has written about why this is a false analogy.) Why shouldn’t President Trump get to do even more?

But there were immigration processes in place, Judge Clifton said. Where was the evidence “that there’s a real risk, or that circumstances have changed?”

“Well, the President determined that there was a real risk,” Flentje said. It was, he added, “understandable” that he had done so, because “the President understands” these matters.

Friedland pressed him again: Was he saying that the President’s determination was “unreviewable”?

“Yes,” Flentje finally said, within “obvious” constitutional restraints. Any judicial review was “limited” and confined to the “four corners of the document”—that is, the court was allowed to make sure that the order was “facially” legitimate, meaning correct in form and citing real laws and deploying the right legal jargon in the right places, a test he said that the executive order “easily” passed. And that was all. They might, in some cases, hear out American citizens who were directly affected, but even there the review was extremely limited.

“We’re not acknowledging any review on the facts of the case,” Flentje said.

Immigration law does give latitude to the President when the country is in danger. But what happens when you have a President who the courts, and any objective person, know tells lies? How should the assertions of danger then be regarded in light of other laws saying, for example, that religion should not be a reason for excluding people? For that matter, how should they be regarded in light of not only the Constitution’s establishment clause, which precludes religious tests, but any number of other passages in that document?

As it happens, this question has come up before in our jurisprudence, because Donald Trump is not the first politician to lie. Our courts have dealt with the prospect of dissembling and misstated motives, particularly in the area of racial discrimination. (A recent book by David Rudenstine looks at some of this history.) Judges seem to believe that Presidents will lie about many things, but that they might have some shame when it comes to the nation’s safety, particularly as they have access to classified information that the public does not. Friedland reminded Flentje of the court’s role.

“Haven’t there been allegations here of bad faith?” she asked Flentje. “And doesn’t Mandel and Din, the concurrence in Din, envision that that is something that we would need to look at?” She was referring to two immigration cases that were heard by the Supreme Court, in 1972 and 2015, respectively. The government had seized on the cases’ affirmation that the courts ought to take its decisions on visa denials at face value. But, as Washington and Minnesota had noted in their filings, “Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith.’ ”

Flentje had no real answer at that point, trying to shift the discussion to the question of “standing,” the legal doctrine that a case can’t just be brought into court by anyone who walks in off the street: a plaintiff has to show harm, and the sort of harm that the law recognizes and can fix. He hoped that, even if the judges ruled against him on most points (and he was getting the sense that they might), they would drastically narrow the restraining order. But under questioning from the judges on why Washington wouldn’t have standing—on the grounds that, to name one reason cited, the University of Washington, a state agency, had seen its students and scholars stranded and effectively banished—Flentje just floundered.

“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.

Flentje tried to answer by saying, repeatedly, that that wasn’t what this executive order said. Pressed, he acknowledged that the right plaintiff might have standing to at least challenge it, but that “this is a far cry from that situation.”