By: James F. Toole, M.D.
Cerebrum, Dana Foundation, 1998
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It has happened, of course—and not infrequently. Just in this century, American presidents who continued to serve in office while seriously neurologically impaired include Woodrow Wilson, Franklin D. Roosevelt, and Dwight D. Eisenhower. In the first two, there is a credible historical case that the results were catastrophic on a world scale. But the real question is: Could it happen again?...
Once officials are elected or appointed, there is no legal requirement for periodic physical, mental, or behavioral examinations while they are serving in office. When the average life span was 60 years, senility was a less common problem. Now, with the graying of America (and soon the world), devastating neurological diseases and other conditions have a much greater likelihood of wreaking havoc on an individual’s mental functioning. Isn’t it time for the law to require health examinations, and public revelation of the results, before election and periodically thereafter while an individual is serving in office—just as there are legal protections of the public in other areas of society? After all, we have laws governing the packaging of foods, construction of automobiles, and periodic inspection for continuing registration and licensing of vehicles and drivers. Why don’t we have similar requirements for public officials (as we have already for aviators)? Unfortunately action is stalled, in part because it contravenes traditions of confidentiality in matters relating to health. Society desperately needs correction of this Achilles’ heel before it is too late.
THE TWENTY-FIFTH AMENDMENT
Why does our nation tolerate this appallingly dangerous flaw in our system? Can there be any brake on this unregulated system— or must we live in danger of catastrophe? A first step was taken in 1965, when Senator Birch Bayh proposed an amement to the U.S. Constitution. On February 10, 1967, Article 25 was ratified by a sufficient number of state legislatures. In it, succession is clearly defined in cases of removal of the president from office by death or resignation. The vice president shall become president, as happened when President Richard M. Nixon was replaced by Vice President Gerald R. Ford.
Section 2 is equally clear on succession to the office of the vice president, as occurred when Ford was appointed vice president after the resignation of Spiro T. Agnew.
Section 3 is straightforward. If the president voluntarily submits a written statement that he is unable to discharge the powers and duties of his office, they shall be discharged by the vice president as acting president until the president submits another document stating that he has recovered. This sequence occurred when President Reagan transferred power to Vice President George Bush in anticipation of undergoing general anesthesia for colon surgery and then resumed office immediately thereafter.
In Section 4, however, there seems the potential for a serious dilemma:
Whenever the vice-president and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit to the president pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president.
What is the mechanism for determining that the president is unable to serve? How does one inform the president that he is not capable of performing in office? Judging from past experience, it would require the most extreme conditions for the vice president or members of the cabinet to remove their leader. They have a built-in political incentive to maintain the status quo because, if the president is removed, the cabinet that serves him may be replaced as well. Furthermore, these officials are not medical professionals and so cannot have full insight into the dangers of having a mentally impaired leader.
There is an even greater problem in implementation of the next part of Section 4. It states:
Thereafter, when the president transmits to the president pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no disability exists, he shall resume the powers and duties of his office unless the vice-president and a majority of either the principal officers of the executive department or of any such body as Congress may by law provide, transmit within four days to the president pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within 48 hours for that purpose if not in session.
These two clauses conceal potential stumbling blocks. Together, they could enable a cognitively impaired President who lacked insight into his mental deficiency to obstruct governmental procedures for removal from office (or to resume office), despite persistent deficits. Only a specially trained physician has the skills to determine the presence, treatment, and prognosis for neurologic and psychiatric disease.
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