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FDR, JFK, Trump and the Constitution

FDR serving for 4 terms showed us the necessity for imposing limits for terms served related to physical health and accrued political power.

JFK’s assassination and the following period showed us the necessity of having a reasonable structure to remove and replace a president from office outside the process of impeachment.

Donald Trump’s presidency shows us a new need to safeguard the country from damage due to a President’s mental health issues rendering them unfit to exercise adequate judgement to be trusted with the powers of the office. Let’s open the Overton window to developing proposals for an amendment regarding Presidential mental health.

The office of the presidency is unique among National elected positions in that it carries the power to launch nuclear missiles. With that much power the person with the responsibility must be mentally and emotionally competent to exercise that power reasonably.

Since the reasonable exercise of that power is completely dependent on human judgment it is necessary to be certain that our elected leader has the capability to make what could be the single most important judgement in human history. To make a sound judgment at that scale of consequence a person would have to weigh many factors. The practical and moral consequences of that decision must always represent the best possible outcome for the American people and conceivably for most of the population of earth.

It would take an extraordinary amount of human mental, emotional, and moral capability for any person to be given that responsibility. The framers of the constitution, and anyone who lived prior to the invention of atomic weapons, could not have conceived of a world destroying capability being in the hands of a single human being.

The election of Donald Trump has brought us to the point in U.S. history where this weighty issue must be confronted. We need a new amendment to the constitution that insures the president, both when entering office, and as their presidency is executed through its term, has the mental and emotional capability to form the judgement necessary to exercise that power. This power is trans-political, and god like in its consequences, so it will take a bit of thinking outside the box of conventional electoral politics to fashion the basis for a constitutional amendment. First let’s review the relevant section of the 25th amendment.

25th Amendment Section 4.

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 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Two phrases jump out at me.

“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.”

It is clearly permissible in the 25th amendment for the congress to provide an alternative to the Vice President and the principal officers of the executive branch of government as the body to determine fitness for the office. I believe such a body must be created and that it must be a civilian body. That body must be competent to set the minimum standards, and then evaluate them, for the mental and emotional ability to exercise sound judgment on matters of immense consequence. I will make my proposal for that body and how it operates later in this essay.

The second phrase is “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 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.”

If you have ever dealt with individuals significantly impacted by either major mental disorders or significant personality disorders you would instantly realize that an individual whose judgment was impacted significantly by those conditions would not be the best judge of whether they were still incapacitated. The existing language seems applicable to an issue like having a stroke or heart attack in office. In the new amendment that language should be specifically limited to physical, not psychological disorders.

My proposal as a starting point for coming up with an Overton window opening set of ideas goes as follows.

Congress should create a non-political board of psychiatric professionals to serve as this evaluative body. The assignments would be elected and supervised by a professional organization, a combined panel of the best from the American Psychiatric Association and the American Psychological Association, would be a good start for this thought experiment. That group would develop a set of criteria for the evaluation that would then be used to ascertain whether the President, or candidates for the office of president, met the minimum criteria for mental and emotional stability commensurate with making sound judgements regarding decision making around the most consequential powers of the presidency.

Processes.

All presidential candidates would have to submit to evaluation. The results of those evaluations would be revealed to the public and required to be included on all campaign advertisements and other persuasive literature. I would want a four-category range of fitness, top 1/3, middle 1/3, bottom 1/3, and not qualified. The underlying detail of the evaluation would be under the control of the candidate but not the resulting range of competence scores.

Once elected an initial evaluation would be performed and an evaluator would be assigned to meet with the president no less frequently than monthly but as frequently as the evaluator would see fit. The president would not be allowed to change that frequency or refuse to participate in the evaluations. Refusal to participate would result in immediate removal from office and the 25th amendment related to succession would be enacted. A score below the bottom 1/3 of the range would result in immediate removal from office.

The office holders in the line of succession would all be required to conform to the same process as the president while holding those offices. The penalty for noncooperation for those in the line of succession would for them to be removed from the line of succession.

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