Thursday, July 7, 2011

If Obama Knew More History . . .

In The Student Prince (at least the film version), Prince Karl Franz and his tutor are shaken out of bed in the middle of the night without a word of explanation and escorted to the private chambers of the King, the Prince's grandfather. As they make their way through the palace in their dressing gowns, Karl Franz remarks to his tutor, "Well, they can't do anything to me — I'm the Heir Apparent." His tutor gives him a Look and says, "If you knew more history, you'd be more worried."

We might make the same remark to President Obama — if we were convinced he was listening. The current push by flocks of lawyers to try and make the case that the Fourteenth Amendment empowers the Executive to raise the debt ceiling, even that the debt ceiling is unconstitutional, should be making the president sweat bullets . . . if he knew more history. The second most dangerous thing an executive can do is figure out a way to finance government operations without the consent of the legislature. The most dangerous? Rub their faces in it.

Take, for example, the case of Charles I Stuart. Having figured out ways to raise money for his pet projects without the consent of parliament, he thought he had the world as his oyster. After all, who would dare do anything to a divine right king, the elect of God, Defender of the Faith, the Lord's Anointed, King of England, Scotland, Ireland and France? (Yeah, France — the rulers of England didn't surrender their claim to the throne of France until the 19th century — they fought the 114-year long Hundred Years War over something.)

Parliament disagreed. Maybe the king ruled by divine right . . . but parliament controlled the tax and fiscal system. The king — as king — could not levy taxes or borrow money without the consent of parliament. Charles's theory of divine right, however, made no distinction between Charles the man, and Charles the king. He found he could borrow money as a private person without the consent of parliament, and use the funds to run the government as a public person in spite of parliament.

Unfortunately for Charles, parliament ultimately decided that, if Charles was going to merge the character of Charles the man with that of Charles the king, so could they. Ordinarily, the maxim of the law is that the king can do no wrong. This is usually interpreted as meaning that an office holder cannot be prosecuted for acts performed in carrying out the duties of his office, however badly. Nor can he be prosecuted as an office holder for acts committed as a private person. He can, however, be removed from office for poor performance, but not otherwise harmed, or removed from office for "high crimes and misdemeanors" and then prosecuted as a private person.

Thus, the demands, for example, to impeach past president Bush for prosecuting a presumably illegal war because he allegedly lied are empty rhetoric. It may have been the worst thing he could do, it may have been morally wrong, it may have been a great many things — but it was not illegal. Lying is, in and of itself, neither a high crime nor misdemeanor. Nor can an office holder be prosecuted for being mistaken, or taking bad advice. He can't even be prosecuted because you hate his guts or think he's the reincarnation of Adolph Hitler.

Parliament arrested Charles and put him on trial. His defense (which he never actually made, refusing to defend himself on the grounds that parliament had no right to try him) was that he was king and could do any damned thing he pleased, as long as he obeyed God's law . . . as he understood it as God's Anointed and personally chosen vicegerent of God on earth. Parliament's case was a bit less esoteric. The king had figured out a way to circumvent the power of parliament over the purse strings, by whose authority as representatives of the people Charles ruled (in theory). This led to armed conflict — war with parliament (and thus the people . . . in theory) — and the defeat of the king.

The formal charge was treason, that Charles had used his [money] power to pursue personal ends rather than the good of the nation: "for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same ends hath traitorously and maliciously levied war against the present Parliament, and the people therein represented . . . [that the] wicked designs, wars, and evil practices of him, the said Charles Stuart, have been, and are carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation." Charles was therefore a traitor, and they cut off his head.

President Obama hardly faces the loss of his head — but he is coming up for reelection, we understand. By thumbing his nose at Congress by making the case that the Congress has no effective power over the purse strings that he cannot circumvent, he would risk alienating the whole of Congress, especially his supporters. Why, after all, does a politician support another politician? Because he thinks he needs the other to gain his own objectives. Also, everyone likes to feel needed, and nowhere is this more true than in politics. The best way to gain political support is for an influential person to convince a potential supporter that he counts, or, better, is irreplaceable.

If President Obama goes along with the argument that Congress has no effective power to control how much money the government spends, he would, in effect, be telling the members that he doesn't need them. He would be invoking something akin to Charles I's "personal rule," during which the king governed without calling a parliament. Congress would be effectively redundant in name as well as in fact. All power would be split between the Supreme Court and the President. Members of Congress could go home and get honest jobs . . . if there were any.

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