However, two Fourth Circuit judges—Barbara Keenan and Jim Wynn—wrote separately in an apparent effort to offer the Supreme Court another basis, if it wants one, to reject the ban.

These judges apparently realize that the challenge faces a heavy lift in front of the Supreme Court. In a case like this one, the court’s decision will shape executive power long after they have left the bench. (Justice Robert Jackson, for example, died in 1954; but his separate opinion in the 1952 Steel Seizure case, Youngstown Sheet & Tube v. Sawyer, is still the basic template for judging president’s domestic authority.) Beyond that, in the executive-power context, the words “national security” and “national defense” often exercise an almost hypnotic power over the judicial mind.

The court’s younger justices come to the bench shaped by years of serving the executive branch. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito served both Ronald Reagan and George H.W. Bush (Roberts was both a Department of Justice official and part of the White House Counsel’s office, Thomas was head of the Equal Employment Opportunity Commission, Alito was a Justice official and federal prosecutor); Elena Kagan worked for Bill Clinton’s White House and was Barack Obama’s solicitor general; Neil Gorsuch worked for George W. Bush’s Justice Department.

Executive-branch lawyers instinctively mistrust any doctrine that might, in the future, block the president from using power that is even arguably his. In this regard, they may be worried by the central argument against the travel bans—that Trump’s statements before and after taking office are relevant, and show an unconstitutional intent to discriminate.

The Fourth Circuit’s majority opinion recited Trump’s anti-Muslim rhetoric and concluded that a reviewing court can and should use these as indications of the executive’s motive in promulgating the ban. That motive, it concluded, was “religious intolerance, animus, and discrimination.” Because government policy that disfavors a specific religion violates the Establishment Clause, the ban cannot survive, the majority concluded.

Trump’s statements, both as a candidate and as president, have a “substantial, specific connection” to the discriminatory motive, it argued. (Judge Stephanie Thacker wrote a separate opinion arguing that Trump’s campaign statements should not be considered, but that his post-inauguration statements and actions are enough to show discriminatory intent.) The government argued that use of campaign statements might chill political debate; the majority replied, “To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”

As Judge Paul Niemeyer outlined in his dissent, there are a lot of reasons—some precedential and some practical—why the high court might not want to make Trump’s statements relevant to the legal issue. At best, it’s an open question. Judges Keenan and Wynn, in separate concurrences, outlined a different set of arguments against the travel ban. Regardless of intention, they said, the order is not authorized by the Immigration and Nationality Act. Statutory arguments might allow the justices to reject the travel ban while not making any broad statements about constitutional authority.