Vice President J.D. Vance thinks the courts have no business questioning President Donald Trump's use of a wartime law to summarily deport alleged criminal aliens during peacetime. "I think that the courts need to be somewhat deferential," Vance told New York Times columnist Ross Douthat. "In fact, I think the design is that they should be extremely deferential to these questions of political judgment made by the people's elected president of the United States." There's just one problem with Vance's view: He's wrong about both the design of the American constitutional order and the judiciary's role in it.
Let's start with the role of the courts. The idea that the judicial branch owes special deference to the elected branches of government was thoroughly rejected by the framers and ratifiers of the Constitution. "As to the constitutionality of laws," Luther Martin told the Constitutional Convention in Philadelphia on July 21, 1787, "that point will come before the judges in their proper official character. In this character they will have a negative on the laws." Federal judges, Martin explained, "could declare an unconstitutional law void," thereby overruling the actions of the elected branches. None of the delegates disagreed with that.
"This Constitution defines the extent of the powers of the general government," Oliver Ellsworth told the Connecticut Ratification Convention on January 7, 1788. "If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void."
