With his reelection chances on an undeniable decline, Joe Biden has embarked on an audacious gambit. Looking at the sheer numbers of desperate people coming to the border and polling showing immigration is a leading issue on people’s minds, the president has taken a page out of Donald Trump’s book and made up for the failure of his far-right border bill to pass Congress earlier this year by sharply curtailing the right to asylum with the stroke of a pen.

Biden’s executive order will have a tough time in the courts, and he knows it. It relies on the same legal authority as both Trump’s Muslim ban and his attempt in 2018 to “close our southern border” in response to the migrant “caravan” being hyped by right-wing media at the time. Both were struck down.

In the second case, a federal judge explicitly said that Trump’s move to bar migrants at the southern border from even seeking asylum violated federal and international law, and “unlawfully conflict[ed] with the text and congressional purpose” of the law he was citing. Since then, courts have further narrowed the use of this legal authority that Biden is now using. Even Democratic Connecticut senator Chris Murphy, arguably the leading cheerleader of Biden and his party’s far rightward turn on immigration, has admitted he’s in “doubt that this is going to pass judicial muster.”