Judges that are ruling against President Donald Trump’s executive order on immigration are applying rules that have never been applied before, according to Harvard law professor Alan Dershowitz, a long-time liberal.

Dershowitz, who said he opposes Trump’s policy but believes Trump has authority to issue the order, noted that judges are not looking at whether the law gives Trump the power to act, but instead at Trump’s campaign statements. 

“The idea of focusing so heavily on campaign rhetoric and essentially saying, look, if Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it, it’s unconstitutional because he said some things about Muslims in the run-up to the campaign,” Dershowitz said.

Alan Dershowitz

For example, in his ruling against the order, U.S. District Court Judge Derrick Watson wrote that a “reasonable, objective observer” would view the order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose,” in the context of Trump’s campaign comments.

“For instance, there is nothing ‘veiled’ about this press release,” Watson wrote, quoting a Trump campaign document titled ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’”

Dershowitz said what a political candidate says has never been used as fodder for legal rulings. “That’s not the way the law is supposed to operate,” Dershowitz said on Fox & Friends. Because the initial rulings were based on campaign comments and not the legal basis Trump has for issuing the orders, he expects Trump will win the upcoming legal batter.

“I’m putting my reputation on the line — I predict the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban,” Dershowitz said. “I do not believe this is a Muslim ban.”