Can the Twenty‐Fifth Amendment Deal with a Disabled President? Preventing Future White House Cover‐Ups

Abstract

Presidential infirmity, accompanied by a failure to fully inform public, has been stamped indelibly on our history during past two hundred years. Fourteen of eighteen American presidents in twentieth century had significant illnesses while in office.(1) Presidents also have faced physical threats leading to incapacity and death. Of eight presidents who died in office, four victims of bullet wounds. From 1789 to 1958, there eight assassination attempts against presidents; from 1963 to 1994, there ten attempts, one successful. The threats are increasing in number.(2) Among presidents in this century, Warren Harding, Woodrow Wilson, Franklin D. Roosevelt, Dwight Eisenhower, John F. Kennedy, and Ronald Reagan all had illnesses that either concealed from American people or underreported.(3) In response to Eisenhower's demand for a mechanism whereby a disabled president might power temporarily to vice president, Twenty-fifth Amendment to U.S. Constitution was passed by Congress in 1964,(4) was ratified by states, and became law of land in 1967.(5) Its central purpose was to preserve cognitive competence in White House at all times by ensuring that a sick or injured president, incapable of decision making in a crisis, will be temporarily relieved of burdens of office.(6) A second goal was to forestall concealment of presidential disability by making of power to vice president temporary, thereby assuring president that he could reclaim office once he was able to so. John D. Feerick, most knowledgeable historian and legal scholar of Twenty-fifth Amendment, observes, Since its adoption, has been implicated at least five different times and has proven its utility in providing for a and efficient of presidential and vice presidential power.(7) Elsewhere, however, ` states that the worked quite well in handling presidential succession crises of 1973 and 1974 (dealing only with section 2 on replacement of vice president) but that it did not work as it was intended in 1981 and (involving important sections 3 and 4 on disability).(8) These two statements contradict each other; generalization of a quick and efficient transfer of power cannot be equated with failure to invoke it when President Reagan was disabled by John Hinckley's bullet in 1981.(9) Feerick contends that fiascoes of 1981 and 1985 (when Reagan had surgery for colon cancer) do not reflect a basic weakness in amendment but rather were born out of political considerations.(10) Can there be any doubt that such considerations will be operating at full steam whenever possibility of presidential disability arises? How can we be sure that politics will not block implementation of Twenty-fifth Amendment in future, at a time when nation requires a strong, rational leader in full command of his intellectual and cognitive faculties? Senator Birch Bayh, architect of Twenty-fifth Amendment, has himself deplored fact that sections 3 and 4 have not worked as framers intended.(11) The amendment's central problem is threefold. First, issue is deeply embedded in a political culture where those who surround president and are closest to his aberrant behavior or disabling illness are dependent for their positions and prestige on keeping him in office.(12) Second, a political judgment of disability by vice president and Cabinet must be based on a sound medical determination of impairment of such a degree that it impedes president's ability to discharge some or all of duties of office. Third, a mechanism for providing this type of unbiased, accurate information on president's health never has been formally addressed. (To extent that it has been considered, primary responsibility has been placed on White House physician, who is enmeshed in a profound conflict of interest. …