a king is sovereign and thus cannot in his own body be subject to the law; he has subjects, is not a subject. in a republic or democracy, the people are sovereign, and thus no one is above the law, all are subject to it. calling him a king is an effective shorthand for where the SC put him.
also, plenty of kings, going way back into history, were sharply limited in their powers? the definition of kingship has rarely been "can do anything they want."
the point is that the king is in theory above any other form of law, and the law flows out of him. that's a rough way to describe the relationship roberts posits between the executive and his duty, that if the president does it, it is legal no matter what "it" is.
re: the limitations, I would say that the difference (in theory) was that the limitations are regarded as self-imposed by the king, from whom all sovereignty flows. in reality, those limitations were a function of a king not REALLY being all-powerful but needing to build consent of the governed
Really, tho? It was already Department of Justice policy that a president could not be prosecuted while in office. Every cop in the country enjoys qualified immunity, which amounts to more or less the same protection.
read the dissents! the immunity granted to the president is categorical in a way that qualified immunity is, well, qualified. If a president orders the military to go out and shoot people, he's immune from prosecution because "giving orders to the military" is his duty.
in practice, immunity is immunity, but QI doesn't work like that. A cop that decides to shoot you in the face is not categorically immune because "carrying a gun" is part of his job.
OK. But 1) presidents already do order the military to go out and shoot people, this is not something new. 2) in practice the binding legal constraints on the president are not the possibility of criminal charges once they leave office.
I mean, the real reason he isn't a king is that he doesn't have a crown and isn't called a king. But the substantive difference in those terms, in political theory, which the analogy gestures at, is the *categorical* deference given to him
Obama could drone strike an American, after all, but he had to say "here is why that was legal" and, in theory, prove it. Roberts is saying he didn't have to prove it, that anything the executive uses his military for is, by definition, immune from prosecution.
