Presidential infirmity, accompanied by a failure to fully inform the public, has been stamped indelibly on our history during the past two hundred years. Fourteen of the eighteen American presidents in the twentieth century had significant illnesses while in office.(1) Presidents also have faced physical threats leading to incapacity and death. Of the eight presidents who died in office, four were the victims of bullet wounds. From 1789 to 1958, there were eight assassination attempts against presidents; from 1963 to 1994, there were ten attempts, one successful. The threats are increasing in number.(2)
Among the presidents in this century, Warren Harding, Woodrow Wilson, Franklin D. Roosevelt, Dwight Eisenhower, John F. Kennedy, and Ronald Reagan all had illnesses that were either concealed from the American people or underreported.(3) In response to Eisenhower's demand for a mechanism whereby a disabled president might transfer power temporarily to the vice president, the Twenty-fifth Amendment to the U.S. Constitution was passed by Congress in 1964,(4) was ratified by the states, and became the law of the land in 1967.(5)
Its central purpose was to preserve cognitive competence in the 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 the burdens of office.(6) A second goal was to forestall concealment of presidential disability by making the transfer of power to the vice president temporary, thereby assuring the president that he could reclaim office once he was able to do so. John D. Feerick, the most knowledgeable historian and legal scholar of the Twenty-fifth Amendment, observes, "Since its adoption, the amendment has been implicated at least five different times and has proven its utility in providing for a quick and efficient transfer of presidential and vice presidential power."(7) Elsewhere, however, ` states that "the amendment worked quite well in handling the presidential succession crises of 1973 and 1974" (dealing only with section 2 on replacement of the vice president) but that it "did not work as it was intended in 1981 and 1985" (involving the important sections 3 and 4 on disability).(8)
These two statements contradict each other; the generalization of a "quick and efficient transfer" of power cannot be equated with the failure to invoke it when President Reagan was disabled by John Hinckley's bullet in 1981.(9) Feerick contends that the fiascoes of 1981 and 1985 (when Reagan had surgery for colon cancer) "do not reflect a basic weakness in the 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 the possibility of presidential disability arises? How can we be sure that politics will not block the implementation of the Twenty-fifth Amendment in the future, at a time when the nation requires a strong, rational leader in full command of his intellectual and cognitive faculties?
Senator Birch Bayh, the architect of the Twenty-fifth Amendment, has himself deplored the fact that sections 3 and 4 have not worked as the framers intended.(11) The amendment's central problem is threefold. First, the issue is deeply embedded in a political culture where those who surround the 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 the vice president and the Cabinet must be based on a sound medical determination of impairment of such a degree that it impedes the president's ability to discharge some or all of the duties of office. Third, a mechanism for providing this type of unbiased, accurate information on the president's health never has been formally addressed. (To the extent that it has been considered, primary responsibility has been placed on the White House physician, who is enmeshed in a profound conflict of interest.(13)) These three ingredients of failure can be cured, as we shall see.
During the House of Representatives hearings on the Twenty-fifth Amendment in 1965, Congressman Durward Hall, himself a doctor, expressed his dismay at the glaring lack of medical testimony:
I see no evidence in the hearings of any statement by either any White House physician, past or present, or any of the surgeons general of our civilian or uniformed branches, or civilian consultants available to the government, such as the American Medical Association.... I wonder if those who ordinarily determine inability or disability were consulted or called for hearings or if they were excluded purposely.(14) Congressman Richard Poff was of the opinion that medical specialists undoubtedly would be included in the action: "Surely, the decision makers, whoever they may be, would not undertake so critical a decision without first consulting the experts in the field, namely the gentlemen of the medical profession."(15)
Congressman Clark MacGregor agreed: "I believe that the members of the Cabinet would not take the step jointly with the vice president to certify the president's inability to the appropriate officers of the Congress without a consultation with the very finest medical brains which were available to them."(16)
Hall added, "I appreciate that remark.... I would like to believe that the gentleman is adding to the legislative record which I am trying to establish to that ultimate end.... It is to that end that I rise, and I think the point has been well made."(17)
Twenty years later, Bayh remarked on the omission of medical witnesses: "We might have been in error there. We were willing to accept the worst-case situation from a medical standpoint."(18) In fact, the Twenty-fifth Amendment makes no reference to the need for and the means of securing a medical appraisal by the vice president and Cabinet once disability is suspected. Indeed, throughout the deliberative process leading up to the amendment's drafting and ratification, the issue of how medical input would be obtained was virtually ignored.(19) If any medical advice were needed, those empowered to decide the issue were simply "expected ... to consult with the president's physicians and others."(20)
In the analysis of section 4 in the 1965 Senate report, Bayh expressed his belief that "reasonable men" would engage in "prompt action" if required: "It is assumed that such [a] decision would be made only after adequate consultation with medical experts who are intimately familiar with the president's physical and mental condition."(21) This "assumption" has been equated with the intent of those who framed the amendment that "constitutional decision makers would solicit appropriate medical advice."(22) Although "to assume" is not "to intend," let us agree that there might have been an understanding that an accurate assessment of impairment would be an essential underpinning of a decision to replace a disabled president. In support of that belief, Senator Roman Hruska expressed the conviction during the hearings that "the determination of presidential inability is obviously a factual matter.... The issue is simply whether a specific individual with certain physical, mental, or emotional impairments possesses the ability to continue as the chief executive."(23)
In the Senate hearings of 1964, James McGregor Burns, a well-known historian of the presidency, had made the point that "lacking clear medical advice, they [the Cabinet] could not be sure of even the facts in the case."(24) He recommended a presidential commission, which would then designate "a physicians' panel to report the medical facts.... The problem is one of judgment on the part of experienced, reasonably disinterested men who understand the condition of the president."(25) He expressed his concern that "there might be some tendency to turn to the kind of physician that might be most expedient in the situation. Whatever body makes the decision must turn to a panel of physicians." He emphasized the importance of a "disinterested choice of physicians rather than choices that might be influenced by the heavily political nature of the president's Cabinet."(26)
Years later, during a reconsideration of the Twenty-fifth Amendment, Bayh clearly was skeptical about relying on the president's physician: "It is awfully hard to envision a personal physician to someone like the president . who is not going to feel very close to him and protective of him."(27) He added, "I don't think the president's physician should make those judgments himself."(28)
There is a procedure whereby Bayh's goals could be achieved without changing the amendment, without violating the separation of powers doctrine, without impinging on the safeguards implicit in the appointments clause, and without distorting the fine balance between independence and accountability.
Such a corrective measure(29) borrows from Bert E. Park's germinal contributions in clarifying the outlines of a solution to this matter and the potential cost of failure to grapple with it.(30) It departs from Park's original approach of substituting a disability commission as the "other body" referred to in section 4 of the amendment and, therefore, avoids the controversy over the supposed need to replace the Cabinet.(31) It is in accord with many aspects of Park's modified plan, defined in 1995.(32) In brief, it continues to rely on the vice president and the Cabinet as the final arbiters of the political decision on disability but makes available an independent expert advisory group of medical consultants to provide the medical facts on impairment that the decision makers require.
A Medical Advisory Committee on the Health of the President
Either by statute or by concurrent resolution of Congress, a system should be enacted that ensures the vice president, the Cabinet, and the public of objective, independent, and...