Presidency: Bush and the 25th Amendment

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Mr. Smith is a professor of history at Wake Forest University.

Would you authorize a person to start a nuclear attack whom you would not authorize to drive a car or sign a contract? When a group of neurologists, historians, lawyers, political scientists, psychiatrists, and journalists met at the Carter Center, Wake Forest University, and finally at the White House Center in 1996 to examine the realities of the Twenty-Fifth Amendment, they understood that it was a complicated part of the Constitution. Wilsonian historian Arthur Link and nationally recognized Neurologist James Toole convened the working group on the Twenty-Fifth Amendment and Presidential disability in part because the amendment dealt with medical disabilities but did not call for expert medical opinions.

By the advice of past Presidents Jimmy Carter and Gerald Ford, the input of original writers such as Birch Bayh, and the counsel of past and practicing White House Physicians, the Constitutional theories of the amendment met the realities of practice.

There was acclaim for the process by which the vacant Vice-Presidential office could be filled, even if it might mean the country could be led by a person who had never stood for nor won an election.

But then came the questions that should scare the nation each time its highest elected official-the President-loses his mental faculties. It was what would make the nation feel better with each day that was added between the time a president was disabled and the time when he or she must make major decisions. The times when a president like Grover Cleveland could have a jawbone surgically removed and replaced with a rubber prosthesis without concerning the nation are gone. Whether it is called"the watchful eye of the country" or"jackal journalism," political friends and foes keep their eyes on the man who carries the nuclear bomb satchel.

In the simplest use of the amendment, the President passes his authority over to the Vice-President to use while the president is sedated for a medical procedure. The medical world has taught us that older people who undergo general anesthesia may be slow to purge the mind-bending drugs from their systems, leaving minds temporarily unreliable. That is why outpatient surgery calls for caretakers to protect us from mistakes after we leave the doctors' offices. Should a person be able to sell her home or give away his fortune two hours after waking up from a wisdom tooth operation blessed by a codeine derivative or even light general anesthesia? When Ronald Reagan testified that he could not remember signing the authorization for the Iran-Contra fiasco, he may have been telling the truth since it came soon after his surgery.

Moreover, the presidential advisors, whose power is the reflected authority of the president and who have had it suspended, are ready to take that authority back into their hands"ASAP" after it has been loaned out to the Vice-President's advisors. The fact that Reagan could write his name on a letter in the recovery room reclaiming his authority was not a valid index of whether his mind was capable of the considered judgment. When after his recent general anesthesia was President George W. Bush mentally competent to reclaim his authority, or even to pass a drug test? For these reasons Americans can be pleased when Presidents regain consciousness, and hopeful that they made no ill-considered decisions while recovering from sedation.

Four issues emerging from the Twenty-Fifth Amendment have earned more attention. First, the media and the voters should insist that every president have a contingency plan in place before he or she takes the Presidential oath. It is a candidate's responsibility to establish who will make the decisions about when and whether the office holder is so impaired that someone else must fill the office. It is much more than a medical decision, and the people surrounding the office must know how the commander wants the decision to be made.

Second, by what criteria will a president be evaluated? It is unlikely that people fit to be presidents are normal. Neurologists who specialize in measuring impairment will need new models for persons who invest their lives and pay dearly to become presidents. And does the quality of the Vice-President influence the criteria by which the president is declared unfit? Have Presidents working with a 60% disability rating been more fit to be president than their Vice-Presidents would have been with no rated disability? In 1944 Franklin Roosevelt was by many measures of medical evaluation severely handicapped, terribly weary, and living with ailments so life threatening that he and his physician seemed to have agreed not to speak of them. But he had been impaired for his whole term. Did the country need him less in 1944? Should Abe Lincoln have been declared disabled and unfit because of his moods, hallucinations, or depressions?

Third, is there a time when the Vice-President must say to all who will listen that it is his time to take over from the boss? Should he tell the sedated commander that he is not yet ready to reclaim the authority? If the close coterie of the President will not listen to the Vice-President, then should he say it to someone else such as Congress or the media? What kind of courage would it have taken or will it take for a Vice-President to declare that it is time for him to take the office from the President? Should Woodrow Wilson's Vice-President have risen to that level of judgment? Would the country have been better off? Did Eisenhower's difficult recovery from his strokes dictate that Richard Nixon should have declared it time for Nixon to be made President? Should George H. W. Bush have been monitoring Ronald Reagan for symptoms of Alzheimer's?

The fourth, and perhaps most controversial, issue in the Twenty-Fifth Amendment has involved the option it gives to Congress to establish a body to evaluate the competency of the president if it seems the Executive Branch is not appropriately managing a disabled Presidency. If John F. Kennedy's wound had left him only as paralyzed and painfully damaged as the wounded George Wallace, would Congress have needed to intervene to force Robert Kennedy and the other Kennedy advisors to yield the Presidency to Lyndon Johnson? Political Scientists are hesitant to condone letting one branch of government meddle so directly in the affairs of another. The Twenty-Fifth Amendment says to do it, and ex-Presidents can doubt whether a President's Cabinet and friends, or even Woodrow Wilson's wife, are the best judges of whether a President should yield the highest office.

The writers of the Twenty-Fifth Amendment saw problems and wrote to correct them. The revelations, off-shoots, and insights of working groups such as the one convened by Link and Toole document that Presidential disabilities and the use of the Twenty-Fifth Amendment will be on-going problems that must be monitored-even when presidents have the best of intentions.

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