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President Bush has been criticized for the number of signing statements—more than 750 between 2001 and 2007–he has added to laws passed by Congress. A new review of these signing statements by Neil Kinkopf, associate professor of law at Georgia State University College of Law, shows that “they are treated in a mechanical fashion, with boilerplate objections phrased over and over again.”
Indeed, Kinkopf writes in a brief accompanying the 269-page index (available at http://acslaw.org/node/5309), the Bush administration’s “contempt for constitutional limits on its own power is nowhere more evident than in the statement accompanying the signing of the McCain Amendment,” which forbids United States personnel from engaging in cruel, inhuman, and degrading treatment of detainees, adding these prohibitions to the existing prohibition on the use of torture. In a signing statement, Bush declared that the executive branch would interpret it “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, … ”
Kinkopf, a former special assistant in the Office of Legal Counsel at the Department of Justice, writes that Bush cannot have concluded that his view would likely be vindicated by the Supreme Court. “The ‘unitary executive’ view of presidential power is an extreme construction that lacks judicial sanction. Moreover, it is precisely this view that supported the Administration’s infamous torture memo, which the Bush Administration itself pointedly refused to defend, and ultimately repudiated, after it became public.”
It is even more remarkable, Kinkopf writes, that “the language of the McCain Amendment signing statement is itself boilerplate. This ‘power to supervise the unitary executive’ objection was raised, essentially verbatim, against 82 separate provisions of law during the first term of the Bush Administration alone, according to [Portland State University Professor] Phillip. J. Cooper’s study. This simply cannot be the result of a careful balancing of constitutional considerations.”
Moreover, Kinkopf writes, “the clinching phrase about constitutional limitations of the judicial power speaks volumes about the Administration’s contempt for the judiciary’s role in constraining executive power, coming as it did on the heels of the Supreme Court’s declaration in Hamdi v. Rumsfeld, that ‘a state of war is not a blank check for the President … ’ ”
Bush has also used boilerplate language for objecting to laws that he recommend legislation to Congress, that he disclose information to Congress or the public, that set qualifications for federal officeholders, or that so much as mention race, Kinkopf writes. “For example, the President signed into law a bill establishing an Institute of Education Sciences. The signing statement pertaining to this law raised a constitutional objection in what seems like a laudable and unobjectional goal for the new institute: ‘closing the achievement gap between high-performing and low-performing children, especially achievement gaps between minority and non-minority children and between disadvantaged children and such children’s more advantaged peers.’ The signing statement questions this provision’s conformity with ‘the requirements of equal protection and due process under the Due Process Clause of the Fifth Amendment.’ ”
However, Kinkopf writes, there is no judicial precedent that would question the validity of this law under the Fifth–or any other–Amendment. “Only under a radical and unsupported reconceptualization of the idea of equality could working to eliminate the achievement gap be considered constitutionally suspect.”
This is not a president wrestling to resolve a conflict between statutory and constitutional law, he writes. “The posture of the Bush Administration is that of an administration that is wrestling to create conflicts in order to support the assertion of power to dispense with the execution of the law.”
James Madison famously regarded Congress to be the most dangerous branch of government because of its power to legislate rules that govern everyone, including the president himself, Kinkopf writes. “If the president may dispense with application of laws by concocting a constitutional objection, we will quickly cease to live under the rule of law.”