Sunday, August 1

Goetterdaemmerung And The “Goldwater Rule”

I urgently recommend that, in addition to reading today's "Skeptic's Collection" column, you also watch the 14 January 2018 episode of Madame Secretary ("Sound and Fury").

I am neither a psychologist nor a psychiatrist nor any other type of mental-health professional. Consequently, I am unqualified to pronounce a clinical judgment on the mental health of President Donald Trump. My layman’s assessment – based on Bob Dylan’s “weatherman rule”:  “You don’t need a weatherman to know which way the wind blows” – is that Trump, at best, has some grave challenges, both emotional and cognitive, when dealing with stress, criticism, and adversity. (For the record, I also take exception to this morning's [11 January] New York Times editorial alleging that Trump's mental state is irrelevant. Matters of policy can be changed; matters of psychopathology are much more intractable and cannot be voted out of existence. Apples and rutabagas.) But I repeat:  that is a layman’s opinion. So I approach the question of Donald Trump’s fitness for office – “fitness” being measured by purely clinical criteria – from the standpoint of the logic of the US Constitution.

In particular, I approach the issue from the standpoint of the logic of the 25th Amendment, which poses some serious issues, regardless of which party holds the White House. There are two classes of problems with the 25th-Amendment approach:  one class of problems leads us to the issue of the relationship between the President’s psychological health and his fitness for office; the other, to a rather straightforward conflict of interest, should Section 4 of the 25th Amendment ever need to be invoked.

There are two aspects to the first class of problems. First of all, the 25th Amendment says

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

In late June of 2002, for example, President Bush underwent a colonoscopy that, like all such procedures, required his doctor to administer sedative drugs to induce a kind of “twilight sleep” that would temporarily compromise the President’s cognitive function. Consequently,

President Bush said Friday that he is scheduled to undergo a colonoscopy — his third — on Saturday. Bush will transfer power to Vice President Cheney for about an hour while he is sedated for the screening test for colon cancer.

Presumably, once the colonoscopy was completed and the sedatives had worn off, President Bush, also pursuant to Section 3, transmitted to [the Speaker and the president pro tempore]  a written declaration of his ability and readiness to resume the Presidential Office.

In Section 3 alone, therefore, the President is required to (a) relinquish his Office by declaring in writing to the Speaker of the House and the president pro tempore of the Senate his inability to perform his duties, and (b) to similarly attest in writing to his competence and readiness to resume those duties. Note carefully that  the 25th Amendment, in both cases, simply assumes mental competence on the part of the President to perform these two critical functions:  to relinquish and to resume. Apparently – unless I am gravely misinterpreting the 25th Amendment – no independent and objective clinical assessment is required by any competent and impartial medical professional – a clinical psychologist, a forensic psychiatrist, etc., or indeed by any competent practitioner of any medical discipline – to the effect that, by objective scientific and clinical criteria, the President is in fact fit to be President again.

In the event that the Vice President, with the concurrence of a simple majority of the Cabinet, seeks to relieve the President of his Office, or in the event of a disagreement with the Vice President (i.e., now Acting President because of a previous invocation of Section 3) concerning the President's ability to resume his duties after the Section 3 process, the matter can be debated and resolved by a vote of both Houses of Congress under the terms of Section 4 of the 25th Amendment (keep reading). But, absent a binding requirement for medical examination and clinical evaluation of the President's competence, it is at least theoretically possible that such a debate could proceed in a "data- and information-free" manner. I see nothing in the 25th Amendment mandating that a President submit to any kind of medical -- in particular, psychological -- assessment. Politically expedient? Probably. Constitutionally required? Apparently not.

When it took days, perhaps weeks, to convene Congress to debate and to pass a declaration of war, and when it took years to fight that war, we could probably live with this. But given the power of the President to unilaterally initiate a nuclear conflagration that would end civilization, perhaps all life on earth, literally in a matter of hours, reposing this much confidence, uncritically, in one person seems reckless in the extreme, even under the best of conditions, and certainly when we must simply take the President – any President -- at his word regarding his competence. Yet there is apparently no constitutional machinery for performing an objective assessment.

Moreover, Section 4 of the 25th Amendment – which, unlike Section 3, has never been invoked -- puts an even sharper edge on this dilemma.

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.

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 inability exists, he shall resume the powers and duties of his office

Now the question recurs in an even more urgent form:  absent an objective affirmation of the President’s mental competence sufficient to endow the President’s “written declaration” with constitutional force (again, keep reading), on what basis do we ascribe validity to the President’s “declaration that no inability exists”? Quis custodiet ipsos custodes?

Without such a basis, we would have an impasse that would amount to a constitutional crisis of unprecedented magnitude, except arguably for the near-civil-war precipitated by the deadlocked election of 1800, in which the House required 36 ballots to elect Thomas Jefferson President, and which even then was decided only because an obscure Representative from Delaware and unsung hero, Rep. James Bayard, a Federalist and opponent of Mr. Jefferson, abstained (or switched his vote … not clear which), thereby tipping the balance away from Aaron Burr and toward Mr. Jefferson. But even in the case of the election of 1800, there was the following critical exception:  there were no thermonuclear weapons in 1800 and congressional approval was still required for a declaration of war.

But there is one salient similarity between the invocation of the 25th Amendment and the election of 1800 to which we should pay explicit attention:  the potential for a conflict of interest. As Bruce Ackerman says in the book I link to above, and without impugning Thomas Jefferson’s integrity, there was a potential conflict of interest built into the Constitution’s machinery for the House deciding deadlocked elections:  the role of the Vice President in counting the ballots of the Representatives.  (For details, see Prof. Ackerman's harrowing book.) For Mr. Jefferson was not only the Vice President, he was also the Democratic-Republican / Jeffersonian  candidate for President. Mr. Jefferson was a man of great probity, so no harm-no foul in 1800. But the future potential for self-dealing was obvious. Similarly, if the invocation of the 25th Amendment should precipitate a struggle between a suspended President and his Vice President (now Acting President) and Cabinet over the former’s competence to resume the Office, the latter would play a pivotal role. Simply by declaring his competence, the previously suspended President could resume his duties

unless 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 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.

25th Amendment
25th Amendment

Granted that the President’s ultimate reinstatement in the Presidential Office is decided by a super-majority of both Houses of Congress, not by the Vice President unilaterally. But then, neither did Vice President Jefferson have absolute power over the voting of the House in 1800. In both cases, the 25th Amendment and the election of 1800, the centrality of the Vice Presidency raises questions about the old principle of nemo iudex in causa sua:  “No one should be a judge in his own case”.

But all the foregoing begs what is arguably the most important question of all:  what degree of psychological impairment should disqualify any President from signing and transmitting the statements and attestations the 25th Amendment requires? To be brutally honest, we, all of us, have a screw or two loose here and there. (Please pardon the technical jargon:  I warned you in the first paragraph that I am not a mental-health professional.) Even so, the vast majority of us are psychologically competent to freely consent to legally binding contractual agreements. Furthermore, when competency disputes do arise, it is quite common for, e.g., forensic psychologists to attest to mental competence in both civil and criminal court actions, and therefore whether or not contracts are binding when signed by the person whose competence is being evaluated.

God forbid, but ... if a future President issued a statement to the president pro tempore and the Speaker asserting his fitness to resume the Office, when that President was obviously and by any rational scientific standard cognitively impaired, would that attestation be binding? One would like to think that if the President were so obviously impaired, that both Houses of Congress would refuse to reinstate the President. Furthermore, it hardly needs saying that any psychological assessment performed by anyone should be pristinely non-partisan. But this is precisely where we encounter a very large fly in that particular jar of political ointment.

"One Flew Over the Cuckoo's Nest"

At first glance, one might conclude that the potential for self-dealing a la the 1800 election is strictly separate from the issue of how to avoid simply taking a potentially disturbed President’s word for his competence to govern. But given the way standards for political ethics have deteriorated in the years since Watergate, I see no reason to treat the two issues – mental fitness to govern and the avoidance of serious conflict of interest – as separate or even separable issues. There are now no Howard Bakers who, though a Republican, could nevertheless ask questions like his justly celebrated query during Watergate:  “What did the President know and when did he know it?”  But of course, that was a half-century ago. Instead, and in contrast, we have today the nakedly partisan spectacle of Sen. Mitch McConnell, who was willing, in the closing months of the Obama Administration, to interdict Mr. Obama in the performance of the solemn duty of the President to nominate someone, Judge Merrick Garland, to fill the vacant Supreme Court seat of Justice Antonin Scalia. In the absence of Howard Bakers in the Senate, the wisest course would seem to be:  Assume Nothing.

So, given Republican duplicity all through the Obama Presidency and during Trump’s first year in Office, is it really such a stretch to imagine congressional Republicans supporting a (nominally) Republican President who was mentally unstable and whose cognitive faculties were in a state of steady decline, but who -- it may well be for those very reasons -- could be relied on to pursue a doctrinaire Republican agenda:  basically a "programmable President", a phrase I by no means intend to be funny? The result would be an amalgamation of On the Beach and One Flew Over the Cuckoo’s Nest – perhaps with Sarah Huckabee Sanders as Nurse Ratched. Faced with such a prospect, it might be quite prudent, even urgent, to make a specifically presidential exception to the “Goldwater rule”.

James R. Cowles

Image credits

Donald Trump ... Department of Defense ... Public domain
Trump in Situation Room ... Shealah Craighead ... Public domain
Barry Goldwater ... BeachAnchor ... Public domain
Mushroom cloud ... ... Public domain
"One Flew Over the Cuckoo's Nest" ... Otterbein University Theater ... CC BY-SA 2.0
Sarah Huckabee Sanders ... The White House ... Public domain
25th Amendment (pages 1 and 2) ... National Archives ... Public domain

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