Seventeen People
Toby figures out that the President may not actually run for a second term, and is finally told that the President has multiple sclerosis (1). While the President decides how to respond to a potential domestic terrorist incursion, Leo says that no one ever lied or did anything illegal to keep the secret (2); Toby says that this could still lead to impeachment (3). Toby also points out that Leo effectively undertook a coup when he made executive decisions when the president was shot and hospitalized in episode 23 (4). On a lighter note, Josh, Sam, Donna and Ainsley Hayes try to add "the funny" to the President's speech scheduled for the next day. Sam and Ainsley debate the wisdom of the Equal Rights Amendment (5) when Sam learns that Ainsley is going back to her alma mater (Smith) to oppose it at a panel discussion.
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Medical cover-ups in the White House (last updated April 24, 2001) (back to top)
The cover-up of health problems within the White House is nothing new. At least three presidents in the 20th century have covered up serious medical problems and the extent to which those problems affected their ability to carry out their duties as chief executive.
By comparison, Bartlett gets off easy; although his illness is potentially dehabilitating and has resulted in episodes, it has never been visible enough to have anyone ask about it. He has never had to lie and has simply declined to raise the issue himself; that distinction is a technical one, but it places Bartlett in a much better light (morally, if not legally) than some of his real-life counterparts.
The general consensus of historians is that Woodrow Wilson, Franklin Delano Roosevelt, and John F Kennedy were the worst offenders when it came to hiding their health from the public.
Wilson, the academic who tried unsuccessfully to bring about the League of Nations, suffered a dehabilitating stroke in 1919 that left him weak and nearly incapacitated for his last two years of office. The extent of the stroke was hidden from all but the president's doctor Cary T. Grayson and his wife Edith (whom some argue made policy decisions on behalf of her husband during his illness). Even Cabinet members and the vice president were not told how bad the president really was.
FDR, who instituted the New Deal and then led the United States through World War II, had polio (he contracted it in 1921, when he was 39 years old and serving as assistant secretary of the navy). FDR actually did release the details of his paralyzed legs in 1931 in order to prevent it from being used against his candidacy for presidency, but he then managed to persuade the press to cover him in such a way that the public did not realize he was a paraplegic.
Still, FDR did have medical problems which he hid from the public and which arguably had some impact on his ability to serve as president. He had arteriosclerosis and hypertension, two heart conditions that left him very ill in 1944; reports indicate that he was so sick in March that he rarely left his bedroom, and that he was admitted several times to Bethesda Naval Hospital under assumed names. Despite this decline, FDR's physician told the press that FDR's health was "perfectly OK" and FDR continued to serve. He went to the Yalta conference in February 1945 appearing to be "a very sick man," and he lived on for only a few more months, dying in office.
Kennedy, who led the country through the Cuban missile crisis and who laid some foundations for the acceptance of the civil rights movement, had many health problems which, if disclosed, probably would have ended his political career far short of the White House.
He was diagnosed in 1947 with Addison's Disease, which destroys the adrenal glands and leaves those afflicted weaker and extremely susceptible to shocks. JFK was treated with cortisone and shots of DOCA (desoxycorticosterone acetate), but still exhibited some symptoms and frequently took ill. His friends and family helped cover-up his affliction. During the Democratic presidential primary in 1960, after suggesting that Lyndon B. Johnson should not be president because of a heart attack, JFK had to respond to questions about his own health; Robert F. Kennedy and JFK's own doctors explicitly denied that he had Addison's disease.
In addition to the Addison's disease, JFK long suffered from back pain. While in the White House, he began getting novocaine and amphetamine injections to relieve the pain; it is chilling to think of a president taking mood-altering, addictive drugs at any time, let alone during the Cold War.
No duty to disclose (last updated April 24, 2001) (back to top)
Is it a crime for a president or presidential candidate not to disclose everything about his health?
No.
President and presidential candidates do not have to disclose their medical records for public review and are not subjected to any official, independent medical review of their ability to serve in office. This has been a sticking point for many, including a committee of medical experts and former White House doctors that recommended in 1996 formal procedures for independent review of a president's ability to serve.
Even without these formal mechanisms, politics and modern media have led to the disclosure of many candidates' health problems. Concerns over his age led Ronald Reagan to say in 1980 that he would have his doctors check him for mental impairment and that he would resign if he became senile. Presidential candidate Bob Dole took that vow a step further in 1996 when he said he would submit to an independent medical review of his health and ability to serve, a move that the much younger Bill Clinton did not match.
Still, many have not released their medical records and have not subjected themselves to independent review. Bill Clinton did not in 1992, and George W. Bush apparently did not either in 2000. Both allowed at least one of their doctors to be interviewed.
Even worse, some candidates have obfuscated, if not covered up, their health condition. Paul Tsongas did not disclose the recurrence of his cancer in the 1992 presidential primaries. President John F. Kennedy covered up his Addison's disease even when asked specifically about it.
But even though there is no legal duty to disclose one's medical condition, the failure to do so could constitute a crime if a president or presidential candidate was ever specifically obligated to reveal it, such as if he was ever asked under oath if he knew of any medical condition that could affect his ability to serve.
And, as a review of impeachment procedures indicates, there is nothing in the Constitution or precedent to prevent Congress from impeaching and removing a president for such a non-disclosure.
Sources: "Committee offers rules for the transfer of presidential power," Associated Press, December 3, 1996. "Dole backs idea of independent health check," by Lawrence K. Altman, New York Times, July 22, 1996.
Impeachment (last updated April 24, 2001) (back to top)
Leo is right when he says that no one has broken the law in not revealing that the President has multiple sclerosis. But Toby is also right when he says that this could lead to impeachment.
After all, in theory, almost anything can.
The impeachment procedure is relatively straight-forward and, given the events of 1999 and 2000, all too familiar: the House acts as prosecutor and officially impeaches a president, judge, or other federal official for committing "high crimes and misdemeanors," and then the Senate acts as judge and jury in deciding whether to convict.
The harder question is what constitutes "high crimes and misdemeanors." Scholars have shown that the Framers did not spend much debating the phrase. The Framers originally started with treason and bribery and then could not decide whether they should add "maladministration"; they decided that phrase was too vague and settled on "high crimes and misdemeanors." It should be noted that "high misdemeanors" was a phrase with precedent; it was used when a British official was accused in 1786 (just before the Framers began their work) of "gross maladministration, corruption in office, and cruelty toward the people of India."
Some have argued that "high crimes and misdemeanors" should be taken as the British had, as conduct damaging to the State, such as misapplication of funds, abuse of official power, neglect of duty, corruption, and betrayal of trust. Others focus exclusively on the text in the constitution and conclude that the only impeachable offenses are treason, bribery, and violating the oath of office.
A broader view that was central to the impeachment of President Bill Clinton is that any indictable offense or crime is impeachable.
An even broader view was put forth by then-Congressman Gerald Ford in 1970 when he sought unsuccessfully to impeach Justice William Douglas on conflict-of-interest charges, that "an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Under this view, a president could be impeached for anything at all.
There is no way to settle the debate decisively. The United States Supreme Court decided in the 1993 case of District Judge Walter Nixon v. United States that this is a matter solely for Congress, and that it could not review any decision to impeach or convict. Impeachment and conviction are political decisions, not legal ones; Ford in a very real way is right.
The House of Representatives has impeached 16 people over the course of American history: two presidents (Andrew Johnson and Bill Clinton), 12 judges (including a Supreme Court justice), a senator, and a cabinet member. The Senate convicted seven of the 16 (all 7 were judges); because the Senate acts as both judge and jury, it considers whether it has jurisdiction and whether the accused crime is worthy of impeachment (in one case, the Senate voted it did not have jurisdiction over the case), as well as whether the accused is guilty.
Of the seven judges who were convicted and removed from office, their crimes include perjury, accepting bribes, and inciting revolt and rebellion just before the Civil War. Perhaps most interesting is the 1803 impeachment and conviction of District Judge John Pickering, who was impeached for an unpopular decision and for "being a man of loose morals and intemperate habits," appearing in court "in a state of total intoxication ... and frequently, in a most profane and indecent manner, invok[ing]the name of the Supreme Bring, to the evil example of the good citizens of the United States," and other "high misdemeanors, disgraceful to his own character as a judge, and degrading to the honor and dignity of the United States."
Sources: Impeachment: A Constitutional Primer, by Jason J. Vicente, Texas Review of Law and Politics, Fall 1998 (3 Tex. Rev. Law & Pol. 117). Constitutional Grounds for Presidential Impeachment, by the House Committee on the Judiciary, 93d Cong. "Before the trial, ask the pivotal question," by Jack Rakove, New York Times, January 12, 1999. "What's an impeachable offense? Past is fuzzy," by William Glaberson, New York Times, September 12, 1998.
Executive Authority and the Twenty-fifth Amendment (last updated April 24, 2001) (back to top)
The Twenty-fifth Amendment, created in the wake of the assassination of President John F. Kennedy in 1963, adopted by Congress in 1964, and finally ratified by the states in 1967, dictates how executive power is transferred when the chief executive is "unable to discharge" his duties. The full text is here.
The first two sections clarify the succession from president to vice-president. The third section deals with the situation when a president voluntarily recognizes his inability to serve; the fourth deals with the removal of a president who does not or cannot recognize such inability.
Under the third section, the president can voluntarily transmit a "written declaration that he is unable to discharge the powers and duties of his office," and until he transmits another written declaration to the contrary, the vice president serves as acting president with full powers and duties. Under the fourth section, the vice president and the majority of the president's Cabinet can declare the president unable to serve; the vice president then immediately serves as acting president until the president can declare that no such inability exists.
The third section has never been formally invoked, despite two known opportunities - both during the Reagan presidency - in which it (or the fourth section) arguably should have been.
First was the March 1981 assassination attempt in which Reagan was seriously wounded. Reagan did not sign a written declaration, nor did his staff invoke the Twenty-fifth Amendment's fourth section. For 12 hours, while Reagan was under anesthesia and in surgery, there was no one holding the powers and duties of the presidency. Even Reagan's own cabinet was confused about who held the reins of power, with Secretary of State Alexander Haig incorrectly declaring that he was "in control" and misquoting the Constitution.
Second was in July 1985, when Reagan underwent colon surgery "during which time I will be briefly and temporarily incapable of discharging the constitutional powers and duties of the office of the President of the United States." Reagan specifically stated that he did not believe the Twenty-fifth Amendment to apply to "such brief and temporary periods of incapacity" like this one but that it was "my intention and direction" that Vice President George Bush discharge presidential powers upon the administration of anesthesia. Bush served as acting president for only eight hours, but many have questioned whether Reagan's letter constitutionally did transfer even temporary power and whether there was anyone legally holding the powers and duties of the presidency for that period.
Thankfully, these transfers of power were temporary and did not raise any actual constitutional crises. George Bush, when he became president, made more formal plans for the transfer of power if necessary, and Bill Clinton did the same when he took office. Still, some have argued that better mechanisms are necessary to handle future scenarios.
Source: Kenneth Crispell and Carlos Gomez, Hidden Illness in the White House, Duke University Press, 1988.
Equal Rights Amendment (last updated April 24, 2001) (back to top)
Twenty-four words that almost became part of the United States Constitution.
"Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
Contrary to what Ainsley might lead you to believe, the Equal Rights Amendment had widespread, bipartisan support when it was submitted to the states for ratification in 1972 (even Nixon endorsed it). The House passed the ERA overwhelmingly 352-15; the Senate passed it 84-8. Opinion polls were in favor of it 3 to 1. Ratification by the states was the only step left for the ERA to become the 27th Amendment. It was a sure thing.
In fact, the only serious opposition to the ERA before the 1970s had come from only one quarter: the labor movement. Labor leaders opposed the ERA because they thought it would undo some of their hard-won gains such as shorter work days for women; they were worried that the ERA would benefit upper-class women at working women's expense. By 1972, however, even labor was grudgingly on board.
So what happened?
Gilbert V. Steiner in his book Constitutional Inequality (Brookings Institution 1985) blames bad timing that allowed ERA's opponents to mobilize better.
First, Roe v Wade caught many people off-guard when the decision came down in January 1973, and anti-ERA activists argued that supporting the ERA would force the government to finance abortions. Second, Russia's invasion of Afghanistan gave new life to fears that women would be drafted and put into combat. And finally, the Watergate crisis made a hero out of Senator Sam Ervin (D-North Carolina), whose opposition to the ERA was given more credence after he emerged as savior to the Constitution.
Even so, it was close. Thirty-five state legislatures approved the ERA (three did so without a single dissenting vote). Only three more states were needed, and a switch of just seven legislators' votes in those states (3 in Nevada, 2 in North Carolina, 2 in Florida) would have been enough to put the ERA over the top. Even an extension of the ratification period did not help, and the ERA expired officially in 1982, not to be seriously resurrected ever again.
Had it become law, the ERA would have made sex a "suspect classification" triggering "strict" judicial scrutiny, which means that courts would use the ERA to strike down any law that uses sex in a way that is not well-justified and not narrowly tailored. Race and alienage are the only classes that are protected so severely by the courts, and this is because the 14th Amendment explicitly requires such protection. Without the ERA, sex remains a quasi-suspect classification, so the courts hold sex-related laws and government actions to a less strict standard. The picture is thus murkier and harder to predict.
Thus, by definition, Ainsley is wrong when she says that the 14th Amendment accomplishes everything that the ERA would have; the whole point of the ERA was to have sex recognized as a suspect classification on the level of race, something that the Supreme Court had not done, and thus to prevent all laws and governmental action that distinguished between people because of their sex. The 14th Amendment can do much of the same things that the ERA would have, but the ERA would have done more.
The Supreme Court almost interpreted the 14th Amendment in such a way that would have truly made the ERA redundant, but three justices ducked the question in the Frontiero case of 1973 because they wanted to see what would happen with the ERA first. The issue has not been reconsidered since then in this regard.
Ironically, the failure of the ERA probably is good for liberal women in the modern political climate.
Intermediate scrutiny does let some laws hurting women to survive, but it also lets laws benefiting women survive as well. Intermediate scrutiny is enough to open up the Virginia Military Institute but it also preserves affirmative action for women. Women's issues - now that women have far more political power than they did even 30 years ago - might be better off without inviting the legal scrutiny that is now undercutting the laws that helped racial minorities in the late-20th century.
Had the ERA become law, any programs or laws that benefits women over men would probably be stricken down as unconstitutional.
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