Wednesday, February 10, 2016
“REX NON POTEST PECARRE”: THE KING CAN DO NO WRONG
What are the limits to absolute power?
Roger Katz, Attorney at Law
Stephen L. D’Andrilli
Edited by Brian Anse Patrick
Historically English monarchs wielded absolute power over the conduct and the lives of the populace – subjects – in their realm.
The famous English jurist William Blackstone developed a rationale for the legitimacy of the Monarch, going so far as to say that the King not only is incapable of doing wrong, but is incapable of even thinking that he can do wrong.
In essence this means that subjects of the realm have no redress in law for alleged wrongs. The King has absolute immunity. A circular argument was offered in way of explanation. Subjects have no redress because the idea that redress is necessary presumes the King could do wrong and has committed a wrong for which redress is required. Since the King can do no wrong, no wrong could be committed that would require redress. Even if a subject dared claim the King committed wrong, the King has absolute immunity anyway. And woe to that person who would claim the King had wronged him.
What does all this have to do with here and now in America under a system of government described as a Free Republic? After all, to negate the possibility of our government resembling the English monarchic system, the founders of our Republic created a tripartite of government, so that law-making functions, executive functions, and judicial functions were not concentrated in any one individual or group. Powers of each branch of were carefully demarcated.
In this light, recent actions of the President Barack Obama and the proposed actions of presidential candidate Hillary Clinton stand as attempts evade this America system of checks and balances against absolute power and return to the absolutism of the monarch.
Probably the most disturbing aspect of Barack Obama-style governance is his claim to act in accordance with his personal notions of what is right. Through absolutist executive orders President Obama has rewritten laws governing immigration and firearms regulation, claiming that he is not making law, only implementing law that Congress has itself made.
Regarding immigration, President Obama would have the American people believe that his immigration orders are not an unlawful encroachment on the singular authority of Congress “to establish an uniform rule of naturalization” under Article 1, Section 8 of the U.S. Constitution.
Regarding gun rights, President Obama alleges that his recent executive directives redefining what it means “to be in the business of selling firearms,” are neither an unlawful constraint and infringement on “the right of the people to keep and bear arms” under the Second Amendment, nor an unlawful encroachment on the sole authority of Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” under Article 1, Section 8 of the U.S. Constitution.
President Obama claims that his kingly directives do not involve the making of law but consist only in acting within the authority of Article 2, Section 3 of the Constitution, which says that the President “shall take Care that the Laws be faithfully executed.” But Obama punctuates these edicts with his claim “when Congress doesn’t act, I will when it is the right thing to do.” This latter remark seems to hark back to the antique doctrine that the King is absolute because in the person of the king lies unimpeachable moral and legal authority.
Commentators have described President Obama’s misuse of executive orders as “executive overreach.” His directives, however, go beyond mere overreach and assert a kingly prerogative. His actions erode the sanctity of a free Republic.
The designated heir of the Obama dynasty is Hillary Clinton. Instead of a King we apparently are to have a Queen, who appears every bit as imperious as her predecessor. Mrs. Clinton’s lack of unaccountability and history of evasion suggests that she too claims the royal prerogative of being beyond all possible blame.
To anyone who might complain Mrs. Clinton would likely say, as she said to those who challenged her botched handling of the Benghazi incident: “What difference does it make?” After all, “The Queen can do no wrong!”