Donald Trump was handed a major defeat a couple nights ago when the 9th Circuit Court of Appeals refused to reinstate his travel ban. The three-judge panel, which included a George W. Bush appointee, unanimously rejected one of Trump’s key arguments: that when it comes to immigration and national security, the actions of the executive branch are not subject to judicial review.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.

FDR was handed defeat after defeat by the courts, yet managed to turn their intransigence — which was arrayed against what a clear majority of the nation wanted — into a symbol of the old regime that needed to be gutted and into a source of even greater power for him and his party.