It always astonishes me (though it shouldn’t by now) when a bit of history studied for a completely different purpose sheds light on the modern world. In this case, a bit of information from a discussion of Justinian’s Code eerily recalls American government today.
“In another much celebrated text (Dig. I.4.1pr., cf. Inst. I.2.6), Ulpian says that what the emperor has decided (quod principi placuit) has the force of a lex. Ulpian probably meant that where the law was doubtful, it was the view favored by the emperor which must prevail. He explains this statement by citing the lex de imperio of the popular assembly, passed at the beginning of each emperor’s reign, which formally gave him power to do everything necessary for the benefit of the state. In the time of Augustus this referred to executive power, but it was used by later jurists to justify the accomplished fact of the emperor’s power of legislation. The implication that in some sense the emperor, when legislating, was the delegate of the people was supported by such texts as Cod. I.14.4 (digna vox), a constitution of Theodosius II in 429, which states that the emperor should declare himself bound by the laws, for his authority depends on that of the laws” (46, The Cambridge History of Medieval Political Thought, c. 350-c. 1450, ed. by J.H. Burns).
Ulpian’s description of the emperor’s judicial function, “quod principi placuit,” by the time of Henry VIII was being interpreted (or at least Henry wanted to interpret it) as meaning that whatever the king wished was law—used, in other words, to change the executive/judge into a legislator as well, and a legislator who acted at whim, though purportedly following the will of the people.
Thus SCOTUS, thus the modern administrative state, thus abuse of the “necessary and proper” clause?