The law does not say that - that is what DOJ counsel are claiming but Judge Robart disagrees.

When Robart asked the DOJ's Michelle Bennett how many foreign nationals of the seven countries targeted by the ban had been arrested on domestic terrorism charges since 9/11, Bennett told the court she didn't know. Robart informed her that the answer was none.

"You're here arguing on behalf of someone who says we have to protect the US from these individuals coming from these countries, and there's no support for that," Robart said.

Bennett replied that it was the president's duty to make that call, and that "the court doesn't get to look behind those determinations."

Robart said that he did have to find if the executive order was rationally based. "And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction."