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

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. …