Tuesday, December 5, 2017

The Incapacitated President and the Fatally-Flawed 25th Amendment

by Nomad

A Question of Stability and Security

Before Trump became president, there were plenty of people- smart people- who were questioning his mental stability. All through his business career, Trump was always quirky, spreading nonsensical conspiracy theories to outlandish and bizarre claims. That was fine and it seems all he really wanted was to call attention to himself.
All that changed when he somehow wound up as president of the United States. It is no laughing matter.

Tony Schwartz, Trump's ghostwriter and a man who worked closely with the man, labeled the 45th American president a “sociopath.”
I think that now he has moved to a darker place. He was non-ideological when I knew him.. I think he’s drifted into that more for emotional and psychological reasons than for political and ideological reasons.
New York Times reporter Maggie Haberman said on CNN last week:
"Something is unleashed with him lately. I don't know what is causing it, I don't know how to describe it."
Throughout this past summer, there were consistent reports leaking from the White House of Trump's erratic behavior. Those close to the president have in October spoke privately Trump, they say was “unstable,” “losing a step,” and “unraveling.”
Professionals too weighed in.

A group of 27 psychiatrists and mental health experts recently warned that “anyone as mentally unstable as this man should not be entrusted with the life-and-death-powers of the presidency.” 
With denials of things he has already apologized for and with his excuses becoming more and more absurd, those drumbeats are growing stronger and stronger. Is the president insane and if he is, what are the steps to removing him from office?    

It is, in some ways, inexplicable that the drafters of the US constitution didn't have the foresight to include a process for dealing with the frailty of the human mind.
There's actually a good reason for it. It has much to do with perspective.

King George III and Trump

The Royal Madness

The problem of a mentally-afflicted (or otherwise incapacitated) leader has, in fact, been around since the founding of our nation. Actually, some historians believe that the insanity of the British monarch, George III (1760 to 1820) might well have encouraged revolutionaries to break free.

Besides his mental problems, there were other leadership problems. Prior to assuming power, he had no previous governmental or military experience.
In charge of the world's largest empire, the king's approach to foriegn policy seemed both irrational and uncompromising. According to his biographers, he did not heed counsel from his advisors and to make the situation even worse, he appointed a series of rather incompetent men to serve as his ministers.

Without question, King George suffered from some form of mental illness, especially during the final decades of his life. The first signs of future problems came much earlier.

About five years into his reign- it was to last 59 years- royal observers noted that the king was decidedly unwell.  Should the king become permanently unable to rule, declared the  Regency Bill of 1765, his German-born wife Queen Charlotte was to become Regent - a position defined as "an appointed administer when a monarch is a minor, is absent or is incapacitated."
It was not at all a satisfactory situation for other members of the royal family.

Rather surprisingly, Queen Charlotte was kept unaware of this provision and, much to the relief of everybody, the King's illness of 1765 proved temporary.
That happy ending was illusionary, however.

By 1789, the King's bouts with madness returned. And this time the British Empire was plunged into a constitutional crisis. This time the British Parliment demanded the establishment of some kind of formal oversight or Regency over the monarch.

The problem was the King's illness was intermittent and when he was not incapacitated (or to put it more precisely, unhinged) he was hostile to the very idea that anybody should rule except for himself.

By 1810, however, following the death of his youngest daughter, Princess Amelia, King George's madness became impossible for Parliment to ignore. For the last ten years of his life, George was permanently deranged. The prince (and heir to the throne) ruled as a monarch without the royal title.

Looking at it from a distance, the pathetic spectacle must have been quite a lesson for the founders of our nation. The problem was they did not see King George as the unrestrained madman but an unyielding tyrant helm of a formidable empire.
That was natural. They were locked in a struggle with a leader who was ruthless and determined to force the colonies into submission and failing that to destroy the unity.

Hailed as the "Father of the Constitution," and fourth president James Madison must have viewed the royal confusion in Great Britain a cautionary tale.
However, the lesson anti-royalist Madison took away had more to do with limiting the powers of an unchecked and corrupt leader.
Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
Despotism can only exist in darkness, and there are too many lights now in the political firmament to permit it to remain anywhere, as it has heretofore done, almost everywhere.  
In the American system, the tyranny of an autocrat was a much more serious and likely problem than a mentally-incapacitated president.  

It was for this reason that the Constitution has plenty of prohibitions on abuse of executive power and much to say about the order of succession but not a lot about to say about a mentally-impaired president.
For this reason, the problem remained formally unaddressed for nearly two hundred years. During this time, there were plenty of warnings.

Garfield, McKinley and Wilson

In the early part of American history, the problem of the incapacitated president might have been considered little more than a complication.
However, as the world evolved and the wealth and influence of the United States grew, the importance of resolving the problem constitutionally became vital to the security of the country. A president in the 1820s could die and the rest of the country would not become aware until a week later and, very possibly, longer than that.
Then came the telegraph. The telecommunications revolution of the mid-1800s changed all that.

Following assassination attempts, both Presidents Garfield and McKinley were incapacitated for a time before finally dying. In the Garfield event  (1881), the president lingered on his death-bed for eleven weeks. During this interval, there were serious constitutional questions that arose concerning who should properly perform the functions of the presidency.  

When McKinley was shot down in Buffalo in 1901, the situation was- in some ways- even more confusing. For eight days, the president hovered between life and death, with doctors assuring the public that the president would recover in no time. Up until the day of his death, the newspapers reported that president was in no danger. Recovery seemed not only possible but imminent. In the meantime, the government was essentially paralyzed.

There were all kinds of warning bells going off that there was a real potential for a major crisis. These two incidents occurred twenty years apart but worse was to come.
*   *   *
Two decades later, in 1919, Woodrow Wilson's presidency faced an even more serious crisis when he suffered a severe stroke. It could not have come at a worse time for the president. At the time, Wilson was touring the country, trying to drum up public support for US participation of the League of Nations- a forerunner of the United Nations. 

In actuality, Wilson had long been bedeviled with health problems. According to his biographer, it was not the first attack Wilson had had. For decades Wilson had suffered from nervous disorders which would, had the public been aware, have probably disqualified him from running for president. Despite at least three (and very likely more) strokes, Wilson adamantly denied that there was anything seriously wrong with each attack and continued his political career.

However, the event in 1919 was much more devastating. While on a public speaking tour in Colorado, he suffered a sudden collapse. In a panic, this entourage canceled the remainder of the tour and rushed the president back to the White House. There, Wilson suffered yet another attack which left him partially paralyzed on his left side along with reported speech problems.  

And this is where the cover-up began in earnest. The president's inner circle immediately decided that the truth about the president's condition must not become public knowledge.
The president’s personal physician, Cary T. Grayson and the president wife, Edith hid (somehow) the truth not only from Congress, the press and the public.

The president himself was unaware exactly how serious his condition actually was. When the doctor briefed the Cabinet, the issue of succession arose but the physician refused to sign any official notice of disability.  He advised the Cabinet to keep the details to themselves and, of course, they had every reason to follow the doctor's advice.   

With misplaced loyalty to her husband, Edith attempted to shield the president from scrutiny. This included blocking him off from his own staff, his Cabinet and members of Congress.  It didn't take long for the truth to leak out.

By February of 1920, the press had gotten hold of the story in a vague sort of way and the American public was never fully informed that the president was struggling to perform his duties and that essentially his wife was running the show as best as she could.

A crisis was not avoided but suppressed. The Constitution was of little help because the guidelines did not clearly specify what to do in this awkward case.
Article II, Section 1, Clause 6 outlines the transfer of presidential power in cases of "Death, Resignation, or Inability to discharge the Powers and Duties of the said Office."

The problem was Wilson was still very much among the living. Moreover, he was not at all willing to resign nor admit being unable to carry out his responsibilities. (Though barely able to speak, he was reportedly considering a third term.)
As a result, Vice President Thomas Marshall refused to assume the presidency unless the Congress passed a resolution that the office was, in fact, vacant, and only after Mrs. Wilson and Dr. Grayson certified in writing, using the language spelled out by the Constitution, of the president’s “inability to discharge the powers and duties of the said office.” Such resolutions never came.
The matter was only resolved by the new election in late 1920. Wilson was (wisely) not nominated to lead his party. The Democrats lost and scandal-plagued Warren Harding became president.

The larger question, however, went unanswered.

Roosevelt and Eisenhower

Like clockwork, twenty years later, the issue came up once more with President Franklin Roosevelt's failing health. For two terms, FDR had headed the country's bumpy recovery. The war in Europe had begun and there were plenty of anxious Americans.

For those reasons, questions about the president's health seemed irrelevant. In a paradoxical way, Roosevelt's paralysis from polio shielded him from scrutiny about other health concerns, like cancer or heart problems. It was something the press did not explore.
By 1940, when Roosevelt ran for a third term, the Democratic Party chairman James Farley was shocked by the president's physical appearance. 

The US ambassador to France, William Bullitt, told of a White House dinner in February 1940 in which the president apparently collapsed. Vice-Admiral Ross McIntire, the president's personal physician, was called to the White House and later said that the president had suffered  "a very slight heart attack."

Throughout the war, the issue of the president's declining health- which was growing more and more obvious- became a matter of national security. It was a question of priorities and, besides that, there was never any question of Roosevelt's mental state.

Later historians would debate whether the public had a right to know the full state of Roosevelt's health before he ran for an unprecedented third term. By 1944, as the end of the war was in sight, FDR was elected to a fourth term even though it was clear to most people around him that he probably would not survive to serve the full term.
With the defeat of the Nazis at hand, Roosevelt was laying out his vision the post-war future. Photos from the Yalta Conference, in which Roosevelt sits with Churchill and Stalin reveal a seriously-impaired president.

Journalist Eric Fettmann'claims in his book FDR’s Deadly Secret
Unequivocally, Roosevelt was suffering from frequent episodic lapses of consciousness known to neurologists as complex partial seizures. They were witnessed and reported by dozens of observers, and our book includes graphic descriptions by the likes of Secretary of Labor Francis Perkins, New York Times editor Turner Catledge and Senator Frank Maloney of Connecticut.
During these critical meetings, Roosevelt would reportedly "be cognizant of what was going on, then suddenly lose the thread completely for anywhere from a few seconds to two or three minutes—and that he could not possibly have known what was going on in between."
If accurate, it is a textbook example of the danger of an incapacitated leader. 
*   *   *

EisenhowerEisenhower's heart attack in September 1955 was yet another time in which the president's health was called into question. With an approval rating of 79 percent. President Eisenhower could afford to relax with a round of golf or two.

On the eighth hole of the Cherry Hills Country Club golf course, just outside Denver, Dwight D. Eisenhower, 64, started complaining of severe indigestion. It was soon understood that the president had had a cardiac arrest.
As one source notes, the effect of this news was immediate:
Just 24 hours later, the American people were informed that their war-hero president was in an oxygen tent at Fitzsimons Army Hospital being treated by one of the best cardiologists in the country. And another 24 hours later, on Sept. 26, the bull market that had seen stocks triple on Wall Street in the previous seven years went into a tailspin, the Dow Jones plummeting over 6 percent and losing $14 billion in value by the end of what would prove to be the worst single day for markets since the start of World War II. 
In this case, the president and his staff choose openness. That was clearly a break from past policy but the nation paid a heavy economic price in the ensuing panic.
In the following months, both the president and the stock market revived and amazingly, despite his heart problems, Eisenhower decided to run for a second term.
One year after getting re-elected, however, Eisenhower was back in the hospital: He was having trouble completing his sentences, and a team of specialists confirmed that the president had suffered a mild stroke.
According to some reports, Eisenhower suffered at least seven myocardial infarctions and 14 cardiac arrests before he died in 1969 at age 78.
If there had been some kind of constitutionally-approved process in dealing with this problem, it is probable that vice-president Richard Nixon would have replaced Eisenhower.

There were two distinct conclusions to take away from the Eisenhower experience. One, openness may be the ethically responsible thing to do but economically, it can be a short-term disaster. 

The second message is that even the most honorable and dedicated president can be disinclined to resign in case of a health crisis. Their egos and agendas will not allow it.  Even more importantly, his dedicated staff would be unlikely to advise him to put the best interests of the nation first.

The Flaws of the 25th Amendment

In each of these events, the dilemma was left to be solved by natural processes, death or new elections. Despite the numerous historical examples of confusion, no official process was examined or debated, let alone, codified.

It was not until the assassination of President John Kennedy that Congress finally choose to bring the long-standing issue up. In 1967, Congress ratified the 25th Amendment which, at the very least, provided for a means of transfer of power should the president die or be disabled.

This Constitutional remedy, as we are learning today, is deeply flawed for a variety of reasons. Article 4 of the 25th Amendment  provides that:
Whenever the Vice President and a majority of either the principal officers of the executive departments 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.
At once, the problem becomes obvious. The vice-president is not an indifferent party. The president is, in most respects, the vice-president's boss. The same goes for the Cabinet. It is ludicrous to expect a vice-president to declare a president incapable of discharging his duties (unless the president can somehow be convinced of the fact.)
To require that the vice-president "betray" his commander is a clear conflict of interest. The 25th Amendment seems to require the very people who have pledged to serve the president to stage a kind of revolt against his authority. Or it can at least be painted this way to the president's supporters.

For this reason, the 25th Amendment has only been invoked voluntarily when, for instance, presidents have undergone operations. 
The first time this happened was on July 13, 1985, when President Ronald Reagan sent a letter directing then-Vice President George H.W. Bush to perform his duties while the president underwent a surgery to remove cancerous polyps from his colon. Bush was acting president from 11:28 a.m. when Reagan was given general anesthesia to 7:22 p.m. when Reagan sent another letter to members of the Senate and resumed his powers.
Mentally-ill TrumpIt has never been tested when a president refused to accept his disability.  And, as we have seen in history, that's the fundamental flaw with the amendment.  

Furthermore, the 25th has no formal "trigger" for an independent or bipartisan medical team to make a determination. It is really quite vague.
The assessment can be made either by the Vice-President and a majority of the Cabinet secretaries or by a congressionally appointed body, such as a panel of medical experts. If the President objects—a theoretical crisis that scholars call “contested removal”—Congress has three weeks to debate and decide the issue. A two-thirds majority in each chamber is required to remove the President. There is no appeal.
In addition, the 25th assume that Congress will not be dominated by the ruling party- which is the case, in the Trump era. That decision may fall entirely into the laps of politicians who may put party above politics, regardless what danger and confusion it creates. 

In her book, “The Dangerous Case Of Donald Trump,” Professor Bandy Lee, a forensic psychiatrist on the faculty of Yale School of Medicine, addressed the need to take steps to correct the shortcomings of the 25th amendments.
we’re merely recommending that procedures be put in place to evaluate every presidential candidate and every president, in the same manner that every military officer and every civilian service person is put through. That the commander-in-chief is not put to the same test is a glaring omission. Currently we are advocating the setting up of an expert panel to advise a commission and we’re recommending that the panel consist of psychiatrists, clinical psychologists and neurologists.
In the present circumstances, a mentally unbalanced president, who just happens to have the power to destroy the planet, could be far more destructive than King George and there's nothing whatsoever that can be done about it.