Newly minted Homeland Security Chief 66-year-old retired four-star marine Gen. John Kelly called Trump’s Jan. 27 travel ban on seven Mideast and North African countries “lawful and constitutional.” Kelly can’t answer that question because he’s not a federal or appellate court judge, where a three-judge panel in the 9th Circuit Court of Appeal is due to review briefs and hear oral arguments today. With many visa and green card holders stranded at airports around the country, Kelly confessed he wished he had “just a bit” more time before the rollout. When U.S. District Court Judge James Robart issued an injunction Feb. 3 against Trump’s travel ban, the White House convulsed, with 70-year-old President Donald Trump calling Robart a “so called judge.” When Justice Department officials make their case today at 3 pm EST [6pm PST] in the San Francisco-based 9th Circuit Court, they’’ll need more than campaign slogans.

Trump’s argument to the 9th Circuit Court stems from an obscure 1962 law giving the president authority to ban certain groups of immigrants if they present problems for the U.S. When Lyndon Johnson signed the Immigration and Nationality Act of 1965, it prevented discrimination against any groups because of national origin, geography and religion. Opponents of Trump’s Jan. 27 executive order banning travel to the U.S. from Iran, Iraq, Libya, Syria, Yemen, Somalia and Sudan insist Trump targets Muslims, strictly prohibited under the 1965 Immigration and Nationality Act. White House officials insist that the ban protects U.S. national security by preventing immigrations from nations with active terrorist insurgencies. Kelly said Trump’s executive order was only a temporary pause to get a handle on better vetting refugees from Mideast and North Africa.

Kelly expressed concerns about refugees from “failed states,” where terrorism’s rampant, making it difficult for authorities to tell whether new arrivals hold sympathies to radical Islam. “So I’m at a total loss to understand how we can vet people from various countries when in at lest four of those countries we don’t even have embassies,” said Kelly. U.S. immigration laws don’t require host countries to have embassies, consulates or formal ties to the State Department. Answering questions in the House Homeland Security Committee, Kelly couldn’t answer Rep. Bernie Thomson’s (D-Miss) question about what he knows about terrorists in the refugee pool. Asked if any “bad people” have been let in the country since Robart issued his injunction Feb. 3, Kelly couldn’t say. Kelly couldn’t say whether any recent immigrants let in the country, before or after Robarts’s stay, have engaged in terrorism.

Trump’s problem tonight arguing before the 9th Circuit Court is that he can’t prove that any refugee or traveler under question is part of any known terror group. “The thinking was to get it out quick so that potentially people that might be coming her to harm use would not take advantage of some period of time that they could jump on a plane and get here,” said Kelly, engaging in the kind of speculation not likely to sway the 9th Circuit Court’s three-judge panel. Without any proof that refugees or visitors have any known ties to terror groups, it’s going be difficult to convince the Appellate Court to vacate Judge Robart’s injunction against the travel ban. Trump’s attorneys plan to argue that the court has no jurisdiction in matters involving U.S. national security. Telling the 9th Circuit Court that Judge Robart overstepped his authority in U.S. District Court is a long-shot.

Trump’s attorneys aren’t litigating the constitutionality of a travel ban, only whether Robart’s injunction passes the legal test. Filing for injunctive relief, Washington State and Minnesota claims that a travel ban hurts commerce in colleges, universities and medial institutions. Over 100 technology companies, including Apple, Facebook, Netflix, Twitter, Uber, etc., filed briefs to the 9th Circuit Court claiming the travel ban hurts their business. Trump’s attorneys plan to argue that the travel ban protects U.S. citizens from possible terrorist attacks. They plan to argue that Judge Robart breached his role as U.S. District Court judge, interfering with Trump’s job as commander-in-chief. If the three-judge panel, comprised of two Democrats and one Republican, decides that Robart had the authority to stop Trump’s executive order, the case moves on to the Supreme Court.

Telling the three-judge panel that refugees or visitors from the seven named Mideast and North African countries present a clear-and-present danger to the U.S. homeland, the courts want proof. Trump’s campaign position on “extreme vetting” won’t sway the panel to compromise the civil liberties and rights of travelers seeking entry into the United States. “It’s been more liberal, by which we mean more sympathetic to habeas corpus, civil rights plaintiffs, anti-trust case, immigration cases. Bit’s its less of an outlier than it was,” said University of Pittsburgh Law School federal courts expert Arthur Hellman. While the Trump White House is caught up in the campaign rhetoric, the courts look for cogent legal arguments. Telling the court it’s the president’s job to decide on immigration or national security issues won’t be enough to get the 9th Circuit to reverse Judge Robart’s stay.