An occasional column of faculty opinion

Who Would Be President?

By Robert Joynt

Last fall's terrorist attacks have again emphasized how important it is that an adequate process of succession to the presidency be in place should extraordinary circumstances ever require it.

Typically, the health and well-being of the president and presidential candidates come under scrutiny at election time. For some, such questions may seem more appropriate for the fictional White House portrayed on the popular television series The West Wing, in which an imaginary president faces questions about his multiple sclerosis.

But these are real-world, fundamental questions about our democratic government: What if the president is ill or otherwise disabled? What if the president becomes incompetent for any reason? Who determines the incompetence?

The simple wording in the original Constitution (Article 2, Section 1) anticipated some of these situations but did not adequately deal with them. The 25th Amendment, including four articles outlining various contingencies, was ratified in 1967 in an attempt to clarify the succession process.

More than five years ago, an unofficial working committee on presidential disability was formed at the behest of former President Jimmy Carter to examine how well the 25th Amendment was working. The group's recommendations have been presented to Congress.

The group consisted of physicians (including several past and present presidential physicians), lawyers, historians, newspeople, and others. Carter and former President Gerald Ford participated actively in some of the discussions. Former Senator Birch Bayh, one of the principal authors of the 25th Amendment, attended all the sessions. The complete record was published by the University of Rochester Press last year in Presidential Disability.

Celebrating its 35th anniversary this year, the 25th Amendment has been-and should be-important to all Americans.

There have been long periods when the sitting president has been ill or disabled and virtually no governing was accomplished. The clearest example was the 281-day disability of Woodrow Wilson following a stroke. Similarly, Garfield, Cleveland, McKinley, Harding, Eisenhower, and Reagan each had varying periods of time when they were not able to function in the office. Eight presidents have died in office, and one has resigned; seven vice presidents have died in office, and two have resigned.

Before passage of the 25th Amendment, the office of vice president was vacant until the next election. Thus, we have had almost 40 years in which a vice president was not present to take over if something had happened to the president.

The 25th Amendment, particularly through its first two articles, has provided some clarity. Article 1 reiterates that the vice president succeeds to the presidency if the president dies, resigns, or is removed from office.

Article 2 empowers presidents to nominate a vice president subject to approval by Congress. This has been done twice: Nixon nominated Ford after Agnew's resignation, and Ford nominated Rockefeller after Nixon's resignation.

However, Article 3-providing for the voluntary and, sometimes temporary, stepping down of the president-and Article 4-providing for the involuntary, and, sometimes temporary, removal of the president-are fraught with political, medical, and legal questions.

Article 3 has been employed only once in 35 years. Reagan appointed Vice President George H. Bush as acting president when Reagan underwent colon surgery during his second term.

Article 4 is, as yet, untested. The decision to invoke Article 4 falls to the vice president and officers of the executive branch, interpreted as the cabinet.

Such a determination would be easy if the president were rendered unconscious for any reason. However, if the president were suffering from an illness such as a dementia or a psychiatric disorder, the chief executive may object to judgments on his or her fitness to serve. The article provides that Congress or such other body as it designates must then make the decision.

Overall, the working group agreed that the 25th Amendment not be changed as it is a workable and flexible law that serves the purpose of providing continuing and able leadership.

The group emphasized that disability should be determined by qualified personnel, particularly presidential physicians, but that inability should be considered a political question made by those prescribed in the amendment.

After long discussion and some contrary opinion, the group decided against forming an independent commission to judge disability, leaving the decision to the responsibility of presidential physicians and appropriate consultants.

The group also reaffirmed that the concept of physician-patient confidentiality for the president should be preserved insofar as possible. A key recommendation was that a contingency plan to implement any change of powers be determined by each administration.

Most important, the group recommended that the 25th Amendment become better known among Americans. One of the reasons often given for not invoking the amendment has been that the American public could not accept the idea of an "acting president."

Less acceptable would be finding ourselves without clearly defined leadership in the face of tragic circumstances.

Joynt, a former dean of the School of Medicine and Dentistry, is Distinguished University Professor of Neurology. He is coeditor of Presidential Disability: Papers, Discussions, and Recommendations on the Twenty-Fifth Amendment and Issues of Inability and Disability in Presidents of the United States, published as part of a series on medical history by the University of Rochester Press.

Theodore Brown, chair of the Department of History, and professor of community and preventive medicine, and of medical humanities, is the series editor.

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