The Presidents' Mental Health

I. INTRODUCTION

Calvin Coolidge had a successful run in politics for over twenty years before ultimately becoming president of the United States in 1923.1 Throughout Coolidge's first term as president, he worked long, hard hours, was active in Congress, and maintained a strong relationship with

the media.2 This changed, however, during the second term of his presidency. Less than a month after his second-term election, Coolidge's son died of blood poisoning.3 This traumatic event caused the President to enter into a deep depression.4 In his autobiography, Coolidge admitted that when his son died, "the power and glory of the presidency went with him."5 His grief, which has since been coined "pathological grief," had an effect on the President's mind, body and spirit.6 President Coolidge lost interest in his job and began sleeping fourteen hours a day, ultimately earning a reputation as one of the most ineffectual presidents ever to hold office.7 His depression rendered him incapable of making decisions, and as a result most of his duties were delegated to members of his Cabinet.8 Though the White House knew for four years that Coolidge's depression rendered him incompetent, he remained in office until the end of his second term.

Naturally, Americans shudder at the notion of a president suffering from a serious ailment while in office. Beyond the fact that an illness could leave the president physically incapable of performing his job, there exists the even more horrifying idea of a president who is mentally incapable of performing the job but continues to do so. This note examines what happens when the man who leads the most powerful nation in the modern world suffers from an illness that adversely affects his ability to think clearly, make decisions, and run the country. Part II examines various instances in history when a president has suffered mental and psychological weaknesses while in office. Part III suggests that considering the magnitude of the position, presidents and presidential hopefuls should be subject to a more rigorous physical and psychological screening process. Part IV discusses the care the president receives from the White House medical team, and examines the role of the primary White House physician and the physician's duty to maintain confidentiality. Part V sets forth recommendations pertaining to the president's health, including alternate means of choosing the White House doctor, a proposed exception to the doctor's duty of confidentiality in cases of presidential mental infirmity, and a more ready invocation of the 25th Amendment.

II. MENTAL AND PSYCHOLOGICAL DISABILITIES OF AMERICAN PRESIDENTS

White House doctors have traditionally been concerned with four types of disabilities that have inflicted our presidents.9 First, there is physical disability, the most notable example being Franklin D. Roosevelt, who was thought to be very intelligent and capable, but who was confined to a wheelchair after the age of thirty-nine because of polio.10 Second, there is disability due to short-term illness.11 During his notorious visit to Tokyo in January 1992, President George H. Bush, stricken with the flu, vomited on the Prime Minister of Japan and then fainted.12 Although he recovered quickly, there was some speculation as to the political ramifications of the episode.13 The third type of disability stems from the influence of medication on the president's mind and judgment, and the fourth is psychological disability.14 The remainder of the discussion will focus primarily on the last two disabilities, as well as those instances where severe illness impairs the mind. Ailments of the mind, rather than the body, are often overlooked in the context of presidential health because they are the hardest to detect and the most difficult to treat.15

A. WOODROW WILSON

In October 1919, President Woodrow Wilson experienced a devastating stroke that left him incapacitated for over a year.16 The stroke shortened his attention span and compromised his memory.17 His White House physician, Dr. Cary Travers Grayson, and First Lady Edith Wilson went to great lengths to hide the extent of his disability from both the public and key members of the White House, including the Vice President, Thomas Marshall.18 Edith Wilson took over many of her husband's duties during this time period.19 All the while, the public was blissfully ignorant of his condition and the fact that unelected individuals were in control of the executive branch.20

B. JOHN F. KENNEDY

When President John F. Kennedy made public appearances, he radiated good health. During the 1960 election, Kennedy gained significant ground in the race against Nixon, in part due to his healthy physical appearance.21 Kennedy appeared tanned, polished, and energetic during the presidential debates, while Nixon looked tired, pale, and scruffy.22 What the public did not realize was that Kennedy's tan was a symptom of Addison's disease and his youthful enthusiasm was simply a mask for the intense exhaustion he felt on the campaign trail due to his illness.23

Today, it is no secret that John F. Kennedy was plagued with health problems, both before and during his presidency. He suffered severe back pain that made it difficult for him to walk without the aid of crutches.24 He also wore a back brace and endured several unsuccessful surgeries to correct the problem.25 Worse still, Kennedy had Addison's disease, which is caused by a deficiency of the adrenal cortical hormone and can be fatal if left untreated.26 The symptoms of Addison's disease include fatigue, low blood pressure, weight loss, and muscle weakness, the combination of which can lead to impaired judgment.27 Additionally, Kennedy had a thyroid insufficiency, high cholesterol, and anemia.28

Kennedy consumed a cocktail of drugs to control the constant pain caused by his multitude of ailments.29 He also made frequent trips to Dr. Max Jacobson for treatment, a doctor who later became known as the infamous "Dr. Feelgood" because of his willingness to violate drug laws.30 By one estimate, Kennedy was regularly ingesting painkillers, amphetamines (uppers), Phenobarbital (downers), sleeping pills, and testosterone.31 He also received shots of cortisone,32 which is known to boost energy, create feelings of euphoria and, in heavy doses, to produce psychotic episodes.33 Kennedy often had a puffy look to his face, which is indicative of a cortisone overdose.34

The average person would find it next to impossible to properly function, let alone run a country, under the influence of the above-mentioned prescription drugs. Yet Kennedy seemed to manage quite well. He initiated several successful economic programs, enacted civil rights legislation, and defused the Cuban Missile Crisis.35 His heavy medications did not seem to affect his ability to behave rationally and get the job done. For the most part, he had the media and the public fooled.36

At the same time, there is evidence that Kennedy's presidency was in fact affected by his illness.37 There remains a lingering question of whether he could have accomplished more. He rarely showed up at Congress, in part due to his sickness and multiple surgeries, which adversely impacted his reputation among members of the House and Senate.38 Also, high level officials within the administration criticized Kennedy's handling of the Cuban Missile Crisis.39

Considering the significance of the events at play during this era, such as the Cuban Missile Crisis and the Cold War, it is shocking that most Americans at the time were unaware of Kennedy's maladies. The White House deliberately misled the public as to the state of his health, and the false exuberance he radiated in public only confirmed their story.40 Moreover, the media was a different animal in the 1960s than it is today. White House correspondents were not particularly diligent and did not dig into the personal affairs of the president, even though they had some idea of his poor condition.41 His many achievements have not rendered insignificant the question of whether the public had a right to know about the state of his health and the course of his treatment.

C. RECENT PRESIDENTS

In a speech prior to 2004's presidential election, George W. Bush announced to a stunned crowd in Daytona Beach, Florida, that under his leadership the United States would "not have an all-volunteer army."42 During a debate against Senator John Kerry in St. Louis, Missouri, Bush sincerely proclaimed, "Saddam would still be in power if [Kerry] were the president of the United States, and the world would be a lot better off."43

Since Bush became president in 2000, the term "Bushisms" has become a household word. There are a number of books and websites devoted to President Bush's verbal misadventures.44 Although these Bushisms can be chalked up to nothing more than exhaustion or poor public speaking skills, Dr. Joseph Price from Michigan has another theory.45 Dr. Price believes that President Bush's verbal gaffes, which have become more frequent over the past decade, are indicative of presenile dementia, an organic brain disorder which leads to cognitive impairment early in life.46

While Dr. Price's theory is purely speculative, it is reminiscent of a similar theory that was proposed when Ronald Reagan was president. In 1987, the media posed the then-sensational question of whether President Reagan's occasional memory loss was symptomatic of Alzheimer's disease.47 This idea was quickly dismissed as absurd, but in 1994, Reagan confirmed the truth of his disease to the world.48 Today, people more readily concede that Reagan showed signs of Alzheimer's during his presidency, years before his official diagnosis.49 So is it really so outlandish to speculate as to the health of President Bush? He is only a human being, vulnerable to disease and disability, arguably more so than the average person due to the amount he travels and the level of stress that he experiences every day.

These are but a few examples of presidential infirmity. Given the vast implications of presidential illness and the deficiencies in the system, it is easier for presidential administrations to hide or ignore such vulnerabilities. However, this flawed system cannot and should not continue to exist, so long as the safety and well being of the country and, to some extent, the world, are entrusted in one man. It is necessary to correct these deficiencies so that current and future presidents are able to function at a level the public expects.

III. THE SCREENING PROCESS

While the aforementioned cases of mentally impaired presidents are by no means exhaustive, they clearly demonstrate several concerns. First, illness may develop only after the president has been elected. Sometimes, however, a major illness exists before the election and is simply not disclosed to the public because "[i]t [would be] embarrassing and . . . potentially ruinous to a president's career."50 second, the image of the president held out to the public is not always accurate, and in some cases, even those people who work closely with the president are unaware of the details regarding his health. The president's family, along with the White House doctor, can, and has in the past, conspired to keep the president's health shrouded in secrecy.51 Third, even if a president is noticeably incompetent, it is likely that his family, advisors, or Cabinet members will work around his disability. In the history of the United States, although numerous presidents have experienced permanent mental or physical impairment, only two have been impeached.52 Furthermore, since its ratification in 1967, the 25th Amendment, which calls for the vice president to temporarily or permanently take office in the event of presidential disability, has been reluctantly invoked less than a handful times.53

There is little evidence to suggest that presidential disability is handled differently today than it was when Woodrow Wilson, Calvin Coolidge, and John F. Kennedy held office. The media has grown increasingly intrusive and is more likely to probe into the personal affairs of the president. The basic requirements to run for president, however, have not changed. Further, the president's doctor continues to be bound by strict doctor-patient confidentiality, and the 25th Amendment remains underutilized.

A. BASIC REQUIREMENTS TO RUN FOR OFFICE FALL SHORT OF AN APPROPRIATE STANDARD

Under Article II of the Constitution, anyone who is thirty-five or older, a natural born citizen of the United States, and a fourteen-year resident of the United States is eligible to run for president.54 Of course, serious contenders must also be able to raise money, get their name out to the people, and navigate the political minefield.55 But the minimum requirements necessary to run for president exclude very few Americans.

Considering the magnitude of the position and the amount of power entrusted to the president, these screening requirements are shockingly low. Markedly absent from the Constitution is a minimum physical and psychological fitness requirement. As a result, serious and even fatal conditions such as Addison's disease,56 which John F, Kennedy suffered from even before he was nominated for office, can be hidden, overlooked, or ignored in a potential candidate.57

Age can also play a factor in a president's ability. The Constitution requires a nominee to meet a minimum age criteria,58 but does not identify a maximum age over which a person is no longer eligible to hold office. This is despite the fact that health risks increase considerably with age.59 Ronald Reagan was days shy of seventy years old when he took office, and was seventy-eight when his term ended.60

B. THE IMPORTANCE OF FORMALIZED SCREENING REQUIREMENTS

The fitness requirements of other high pressure professions demonstrate the inadequacy of the screening process to become president. Most notably, the aviation industry has such exacting requirements that many of our former presidents would undoubtedly have been disqualified from working as pilots. Under the regulations of the Federal Aviation Administration (FAA), a pilot must possess both a pilot's certificate, which requires a minimum degree of education and training, and a medical certificate before flying a plane.61 The medical certificates are not granted to pilots who have one of fifteen enumerated medical conditions, or to pilots whom the FAA finds to be medically unfit because of some other "disease, defect, or limitation."62

Throughout their careers, pilots must maintain minimal medical requirements.63 After pilots receive the medical certification, the FAA continues to scrutinize their medical records to ensure their fitness.64 Robert A. Hoover was one of the world's most experienced acrobatic pilots, but when he reached the age of seventy-two the FAA required him to undergo a neurological, psychological, and psychiatric evaluation.65 The FAA eventually revoked Hoover's license on the grounds that he suffered from a cognitive deficit.66 Hoover's experience demonstrates the power of the FAA and the extreme level of oversight it exercises in order to ensure that pilots remain competent and healthy.

Much like the president, pilots assume responsibility for the lives of others in the course of their profession. Although pilots receive feedback from co-pilots and air traffic control while flying, they are ultimately accountable for the safety of the plane and its passengers. The FAA lays down strict regulations because passengers do not want a sick or cognitively vulnerable pilot manning the plane. Similarly, the American public does not want an ailing president manning the oval office. Despite this reality, there is no department comparable to the FAA monitoring or certifying the mental and psychological health of presidential hopefuls.

In a similar vein, many states require that police officers and firefighters retire somewhere between the ages of fifty and sixty.67 In Massachusetts Board of Retirement v. Murgia, the Supreme Court affirmed Massachusetts' mandatory retirement age of fifty.68 The court held that the retirement age was rationally related to furthering the legitimate state interest to "protect the public by assuring physical preparedness of its uniformed police."69 The Court attached importance to the peculiar physiological and psychological demands of such jobs, and the fact that fitness and preparedness decline with age.70 The Court noted that, "[t]he number of individuals in a given age group incapable of performing stress functions increases with the age of the group."71 Few would dispute the fact that a mandatory retirement age for firefighters and police officers is in the best interest of the public, given how stressful and dangerous these jobs can be. It is therefore perplexing that the position of United States president, which is a job that clearly requires its own set of "stress functions," can legitimately be held by a man who is almost eighty years old, as was the case with Reagan.

While the basic qualifications necessary to hold the presidency pale in comparison to other high pressure jobs, it can be argued that running for president employs its own unique screening mechanism, the media. Running for office is a high profile enterprise that attracts the attention of reporters, talk show hosts, comedians, and pundits in a way it did not years ago when John F. Kennedy was president.72 Intense media scrutiny has raised the bar on who can and cannot survive the election process. In order to satisfy the media's insatiable curiosity and the public's thirst for news, the president must at the very least appear confident, healthy, and energetic. However, such scrutiny might be more harmful than helpful since the media is often biased and prone to sensationalism. The Kennedy-Nixon debate is just one example of how appearances can be deceiving.73 Thus, media scrutiny is no substitute for an organization such as the FAA. Therefore, it is necessary to formalize a higher screening standard so that citizens can be sure of whom they are voting for, and to prevent future problems that may arise once the president has been elected.

IV. THE WHITE HOUSE DOCTOR AND HIS RELATIONSHIP WITH THE PRESIDENT

A. THE WHITE HOUSE MEDICAL TEAM

Once a presidential nominee has been elected to office, the task of maintaining his health falls on the White House medical team.74 The medical team consists of two to six physicians, several nurses, and support staff.75 The advantage of the team approach is that while medical care is available to the president around the clock, the entire unit need not always be on call.76 This ensures that the president has access to an alert physician and medical team twenty-four hours a day.77 Moreover, this system allows the off-duty physicians to maintain their skills and specialties at local hospitals, and to keep abreast of the latest medical developments.78 Presidential mishaps may occur only rarely, but when they do "[t]here is absolutely no margin for error, misjudgment, or delay . . . . Particular care must be given to prescribing of medication, particularly with attention those drugs which have the potential for impairing cognitive function or judgment."79

B. CHOOSING THE WHITE HOUSE PHYSICIAN

Generally one physician, referred to as the "White House doctor" or the "senior White House physician," oversees the team.80 There is no formal procedure in place for choosing the White House doctor or team.81 In recent years, these doctors have primarily come from the military, but presidents are allowed to select their own doctors and often exercise discretion in who will head the unit.82 President Jimmy Carter picked one of his closest friends, William Lukash, to serve as the White House doctor during his administration.83 Similarly, White House doctor Dr. Burton J. Lee was an old acquaintance of former president George H. Bush.84

Ronald Reagan, on the other hand, did not directly choose his own physician. Reagan's father-in-law, who was a doctor himself, recommended a former medical school colleague of his by the name of Dr. Daniel Ruge.85 At a 1995 conference on presidential disability held at the Carter Center of Emory University, Ruge expressed his support for a president's right to choose his own physician.86 He admitted, however, that "it bothered [him] a great deal" that he did not have a doctor-patient relationship with Reagan when he came on the job.87 In treating the president, Ruge had to rely on medical information and advice from Reagan's long-time doctors, without whom he would have had difficulty doing his job.88 Undoubtedly, there is much to be said for allowing the president to appoint as his doctor a person he knows and trusts, and who is familiar with his medical background. Inherent in the American health care system is the right of Americans to choose their physicians. Why should the president be disallowed this basic right?

There are a number of problems, however, with allowing a president the sole discretion in choosing his primary doctor. First, if the president and his doctor share a close or long-time relationship, their relationship may obscure the physician's judgment. The doctor may wish to avoid asking overly awkward medical questions, or be unwilling to recognize or voice concerns he or she has about the president's health.89 Furthermore, treating a president in an emergency situation might be riskier than treating an ordinary citizen. The doctor may experience inordinate distress or nervousness that slows or clouds his or her response time. Even if the doctor is able to remain objective, the president himself might be too embarrassed to report certain symptoms or ailments to someone with whom he has a personal or long-standing relationship. It is one thing to suffer a stroke or heart attack, which obviously requires a doctor's immediate attention. It is quite another thing, however, to admit to an illness such as depression, which a doctor could not readily discern simply by examining his patient.

Second, doctors who are flatteringly chosen to be the White House physician might be more susceptible to pressure from the president and may acquiesce to whatever the president wants. Given the amount of power the president wields, any doctor might buckle under pressure, even a doctor who is a complete stranger to the president. Insisting on carrying out a course of medical tests the president is opposed to, or informing the president that he might be unfit to proceed with a certain task, is sure to spell the end of the doctor's career as White House physician.90 This pressure, however, may be more acute when the doctor risks losing not only his job, but also a valuable client or friend. Indeed, former President Carter openly acknowledges that his White House physician, Dr. Lukash, would have done anything Carter requested, in part because of their close relationship.91 Moreover, when the president hand picks his physician, the doctor will inevitably feel more indebted to the president than he would if the president merely approved his appointment. This feeling of indebtedness is likely to influence the doctor's medical judgment and common sense.

C. DOCTOR-PATIENT CONFIDENTIALITY

Regardless of whether the president chooses his physician, the White House doctor is still bound by the laws of confidentiality inherent in every doctor-patient relationship.92 These laws present a unique problem, however, when applied to the president and the state of his mental health. On one hand, the president is entitled to the same degree of confidentiality as any other patient. Given the prominence of his position, the president's right to confidentiality is especially crucial, because it enables him to maintain some semblance of privacy. On the other hand, the president is not like any other patient. Americans place so much trust and control in the president that surely they have a right to know about certain aspects of his personal life, such as his health and fitness to maintain office.

The doctor-patient confidentiality doctrine is grounded in the Hippocratic Oath, which demands that physicians be kind, sympathetic, and loyal to their patients.93 Keeping patients' secrets is thought to be an essential part of caring for them.94 In addition to the moral obligations of doctors, the law now protects both a patient's right to privacy and right to control the disposition of personal information.95 The rationale behind these laws is to help foster trust between doctor and patient. Patients can fully disclose their health or mental issues to their doctors without fear of social or professional embarrassment or harm. Doctors, in turn, are better able to diagnose and treat their patients if they know all the facts.96

Physicians who do not keep their patient records confidential risk being dragged into court for any number of actions, including breach of contract, breach of fiduciary duty, and tortious invasion of privacy.97 The law, however, has recognized a limited number of exceptions to doctor-patient confidentiality. In Tarasoff v. Regents of the University of California, the California Supreme Court held that the duty of confidentiality may be discharged when doctors or psychotherapists determine that their patients pose a serious danger of violence to others.98 Specifically, doctors and therapists incur a duty to warn anyone who is foreseeably endangered by their client, or to "take whatever other steps are reasonably necessary under the circumstances."99

Tarasoff answers the question of whether a therapist may breach confidentiality in order to protect an individual or individuals.100 In the context of presidential mental health, the question is whether the White House physician has a duty to the general public. Although this issue has yet to be resolved, it has been recently addressed.101 When Senator Thomas Eagleton of Missouri was running for Democratic vice-president in 1972, his medical records were leaked to the press.102 Newspapers revealed that he had been treated for depression with electroshock therapy twelve years earlier.103 The leak eventually led to Senator Eagleton's removal from the ticket.104 The incident gave rise to the question of how his medical records were released to the public when they were supposed to be safely tucked away in his therapist's drawer.105

Senator Eagleton's experience makes it clear that the revelation of personal medical information is integral to public perception. Most would agree, however, that the public has a right to be overly selective about who gets elected to office; even if it entails disqualifying a nominee on grounds of depression he suffered a dozen years ago. Yet in order to obtain access to such mental health information, the therapist must first release it. In the case of Senator Eagleton, the information was not released in a controlled, reasonable manner, but instead was surreptitiously leaked by a newspaper. The political damage might have been mitigated if Eagleton's therapist, or Eagleton himself, had explained the situation to the public. More importantly, a question remains as to whether the doctor could have legitimately released this confidential information at all. Under Tarasoff, doctors must maintain the confidentiality of a depressed patient even if reporting the depression to family members or friends might help the patient.106 This is because the interests of the patient in maintaining his or her privacy outweigh whatever benefits breaking confidentiality might yield. In the case of a patient who is an enormously powerful and influential political figure, it is arguable that the interests of society at large outweigh the private interests of the individual patient.107 A severely depressed political leader is at best ineffective, like Calvin Coolidge, and at worst, potentially harmful to the country at large.108

Under Tarasoff, the law offers a degree of protection for potential victims of violence.109 A similar confidentiality exception should be created for the benefit of those who could be harmed by a mentally-ill leader. Admittedly, it is unlikely that the actions of a mentally-ill president will place the public in bodily danger. However, the sheer number of people he stands to affect calls for an exception to confidentiality in the case of the president. Such an exception has long been recognized for First Amendment rights.110 In Bartnicki v. Vopper, the Supreme Court recently affirmed that, "privacy concerns give way when balanced against the interest in publishing matters of public importance.111 The rationale underlying this policy must be extended to the doctor-patient situation. Thus, doctors should be allowed to breach patient confidentiality, even in the absence of a threat of violence, if doing so is justified by the public interest.

V. THE TWENTY-FIFTH AMENDMENT

The 25th Amendment of the United States Constitution sets forth rules governing presidential succession.112 The rule of succession applies when the president dies, resigns, or is removed from office.113 Notably, section four of the Amendment grants the vice-president and Congress the ability to temporarily remove the president from office when the president is "unable to discharge the powers and duties of his office" and to transfer such powers and duties to the vice-president.114

Although the 25th Amendment provides a means for the government to tackle situations involving an infirm president, it falls short of its goal in several ways. First, the language of section four of the Amendment is unclear because it fails to define what constitutes a presidential inability "to discharge . . . powers and duties." Further, it does not identify behaviors or events which might warrant Congressional intervention.115 Second, the Amendment does not require medical information or a medical evaluation to be presented to Congress prior to being invoked.116 It is difficult to initiate the process of presidential discharge without such medical information or hard medical facts on which to base the decision.117 Third, the guidelines provided under the Amendment do not translate to situations involving a psychologically or mentally infirm president: "The Twenty-Fifth Amendment is designed for acute incapacity, not chronic, insidiously developing conditions."118 These shortcomings make it difficult for Congress to justify the invocation of the 25th Amendment, both because the language is unclear and because it provides Congress no means by which to determine if the president is in fact sufficiently disabled so as to warrant its invocation.

Unsurprisingly, the 25th Amendment has only been invoked a few times,119 and it has never been invoked because of the president's inability to discharge the powers and duties of his office.120 One reason for the hesitancy to invoke the Amendment may be that "it lacks the specific guidelines necessary to make it a practical, operational instrument capable of assuring continuity of function in the executive branch of government."121 In order for the Amendment to have any value, it is necessary to issue specific medical guidelines regarding the operation and invocation of the 25th Amendment.122

VI. RECOMMENDATIONS

The President wields far more authority and is in the public eye much more frequently than other politicians and leaders. Given his unique position of power, safeguards must be in place to ensure he is healthy and capable of doing the job to his utmost capacity.

A. IMPROVING THE SCREENING PROCESS

Many potential health and privacy issues can be averted simply by requiring presidential hopefuls to submit to a more rigorous health screening before being allowed to run for office. Congress should establish a Candidate Medical Screening Committee with sole authority to review and approve the medical files of presidential hopefuls before they are allowed to progress any further with their campaign. In making its decision, the committee should consider the presidential hopefuls' age, current physical and psychological health records, their medical and psychological history, and any medications they take. Although the process should not automatically disqualify someone who currently has or has had health issues, such issues should be taken into account in assessing the presidential hopefuls' future health and identifying potentially chronic problems.

If possible, an effort should be made to ensure that the health records being reviewed are anonymous, so that the committee's review is not biased by political or personal preferences. It is also important that the committee complete its review before the primary elections, so that party members do not vote on a presidential candidate who is later deemed ineligible by the committee.

B. CHOOSING THE WHITE HOUSE DOCTOR AND BALANCING THE DOCTOR'S DUTY OF CONFIDENTIALITY AND THE PRESIDENT'S INTEREST IN PRIVACY WITH THE PUBLIC'S RIGHT TO KNOW

Once the president is elected to office, Congress should form a White House Medical Committee responsible for assembling the White House medical team.123 While the president should be able to choose at least one of his doctors,124 the Committee should be responsible for putting together the rest of the medical team, which should include at least one experienced psychiatrist. The president should not have influence over the decision-making process, although he should have the power to reasonably veto a choice he does not agree with or feels uncomfortable with.

The Committee alone should be responsible for choosing the primary White House physician. The president's chosen doctor should work with the primary physician and the rest of the team in conducting frequent physical and psychological checkups on the president, but the primary physician should have the final say in his or her assessment and treatment of the president.125

The White House medical team should maintain their duty of confidentiality, but in the interest of national safety, breach of that duty should be permitted when two or more of the White doctors suspect that the president is suffering from a physical or psychological defect that might adversely affect his job performance or threaten public interest. In order to minimize instances of inappropriate disclosure, the White House Medical Committee and the White House medical team should work together ahead of time to decide what kind of physical and psychological ailments are sufficiently severe to warrant breach of confidentiality and invocation of the 25th Amendment.

When a breach of doctor-patient confidentiality is warranted, the White House medical team should reveal to Congress only the minimum details necessary to enable Congress to decide whether the 25th Amendment needs to be invoked and the public needs to be informed.

C. REDEFINING THE TWENTY-FIFTH AMENDMENT AND FORMING A PLAN FOR ITS INVOCATION

Sections three and four of the 25th Amendment must be revised in order to have meaning and utility. Presidential inability should be further defined so that it is clear when and in what situations Congress, or the president himself might consider discharge from office.126 Language should also be added requiring the president to be discharged of his duties should mental or physical incapacity occur, so that there is no hesitancy among members of the Congress on when to transfer power temporarily or permanently to the vice-president. Furthermore, the 25th Amendment should be revised to accommodate the White House medical team and to include a procedure to follow prior to discharge. Specifically, once the White House medical team concludes that the president is not fit for office, the 25th Amendment should enable them to present their medical evaluation to Congress directly and recommend how long the president should be discharged from office.

Failing a revision of the 25th Amendment, the president, his advisors, and the White House medical team should work together as soon as the president is appointed to office to form a contingency plan in the event the president is unable to do his job.127 The plan should provide guidelines on when it is appropriate for the White House medical team to spur the vice-president and Congress into action when the medical team feels that the 25th Amendment should be invoked, even if only for a few hours or days.128

The idea of developing contingency plans is not novel: both President Clinton and President Bush worked with their advisors to develop a plan of action in the event they became disabled.129 However, the development of a contingency plan is not yet a formalized requirement. Presidents should be required to sign off on a plan that they feel comfortable with. The plan should enable their medical team, their advisors, and Congress to work together smoothly and efficiently to take decisive action no matter what medical trauma confronts them.

VII. CONCLUSION

Throughout history, it has been easier to ignore the fallibility of our presidential leaders than it has been to address the fact that our system of monitoring presidential health is far short of perfect. However, ignoring major defects in the care and management of the president's health pre and post-election is not the answer. While the likelihood of a mentally ill president becoming a national security concern is slim, history has shown us that it is not an impossibility.

Presidents may be subject to intense scrutiny by the media and the public, but ultimately no one knows what goes on behind closed doors. It is up to Congress, the president's advisors, and the president's medical team to remain objective and ensure that the president is able to do his job to his utmost capacity.

IMAGE FORMULA 1IMAGE FORMULA 2IMAGE FORMULA 3IMAGE FORMULA 4IMAGE FORMULA 5IMAGE FORMULA 6IMAGE FORMULA 7IMAGE FORMULA 8IMAGE FORMULA 9IMAGE FORMULA 10IMAGE FORMULA 11IMAGE FORMULA 12IMAGE FORMULA 13IMAGE FORMULA 14IMAGE FORMULA 15IMAGE FORMULA 16AUTHOR_AFFILIATION

Kirath Raj[dagger]

AUTHOR_AFFILIATION

[dagger] J.D., Boston University School of Law, 2006; B.A., Psychology, Barnard College, 2001. Many thanks to the AJLM Editorial Board for their contribution to this Note, and to my family and friends for their support. Thanks in particular to my mother for her wisdom and encouragement.