The Fading Joe Biden and the 25th Amendment
by Cory Franklin
September 20, 2024
No matter your opinion of the Joe Biden presidency, it has clearly demonstrated the limitations of the 25th Amendment to the Constitution, which was meant to outline how the vice-president assumes the presidency. If the president dies, resigns, is impeached, or incapacitated, this has been the process for presidential succession since 1967. Yet the 25thAmendment was not invoked after it became apparent at the June debate with Donald Trump that Biden was not completely compos mentis.
The problem is primarily because Section 4 of the Amendment, dealing with the formal procedure for removing a president unable to discharge his or her duties, was designed more for acute events than for a president’s chronic mental deterioration. To provide flexibility, how to determine whether the president is “unable to discharge the powers and duties” of the office was left deliberately vague.
Currently, removal from office depends on both a majority of the Cabinet heads (usually presidential appointees) and approval by two-thirds of the members of the House of Representatives and Senate, a higher bar than that for impeachment and removal from office, which requires only a majority of the House and two-thirds of the Senate. Beyond this, the Amendment fails to mention whether medical evidence is necessary to determine if the president cannot carry out the office’s responsibilities.
In President Biden’s case, this is where his personal physician, Dr. Kevin O’Connor, the main repository for information on Biden’s health, comes in. As reports emerged about the President’s gradual deterioration, Dr. O’Connor may have let his personal politics and relationship with the Biden family compromise his professional status, misleading the public and complicating any attempt to implement the 25th Amendment.
This February, Dr. O’Connor released a detailed medical report that concluded the President “is a healthy, active, robust 81-year-old male, who remains fit to successfully execute the duties of the presidency, to include those as Chief Executive, Head of State and Commander in Chief.” There is specific attention to the President’s gait (attributed to orthopedic problems), and mention that “he exhibits no tremor, either at rest or with activity.” Both abnormal gait and tremor are associated with Parkinson’s disease – which some doctors have suspected – but neither issue in the report necessarily raised red flags at the time.
However, in retrospect, these facts take on new significance because White House visitor’s logs indicate a Parkinson’s disease specialist has visited the White House nine times since July 2023. Equally disturbing is that in a six-page medical report, there is no indication of cognitive testing that would normally be part of any detailed neurologic exam in an elderly person, such as the exam performed here (especially in someone with a history of brain aneurysm and COVID infection like Mr. Biden’s). Cognitive decline is a factor in the later stages of Parkinson’s and other related conditions. Dr. Lawrence Mohr, White House physician to two presidents, said that based on what he has seen publicly, “I don’t think there’s any question that the president should undergo a test of cognitive function, and he should do it very quickly.”
Dr. O’Connor’s role is concerning in two respects. First, although the position of White House physician should be non-partisan, Dr. O’Connor has been a donor to President Biden and other Democratic candidates. Moreover, he has intervened in a business arrangement involving the President’s brother and the U.S. Department of Veteran’s Affairs. (In fairness, President Trump’s physician, Dr. Ronny Jackson is a staunch Republican and currently a member of the House of Representatives).
Dr. O’Connor’s partisanship invites questions about his reluctance to discuss the president’s health in a public forum. Preferring to submit his findings in writing, O’Connor has been loath to hold press conferences or talk to reporters, making the president’s health a more opaque concern than it was in previous administrations.
Medical confidentiality is often cited for the president’s health being such a closely guarded secret. The main reason for confidentiality is so the patient’s health remains private between him or her and the physician. The patient must be confident that information will not become public after visiting a physician, otherwise he or she will avoid seeking care. The case of the presidency should be an exception, one where medical confidentiality is not of paramount importance.
Upon attaining office, the president should essentially forfeit medical confidentiality. In the past, this has not always been the case – to the country’s detriment – and should change. The public clearly has the right to know the health status of the commander-in- chief.
The closest situation to the one we have now involved Woodrow Wilson in the last year of his presidency in 1919-1920. After World War I ended, Wilson undertook a cross-country campaign for America to join the proposed League of Nations. Following the unsuccessful trip, Wilson suffered a stroke in late September 1919, rendering him partially paralyzed. His personal physician kept the severity of his condition secret from Congress and the public. His wife Edith, with assistance from his physician, oversaw virtually all communication to and from the president for over a year. She decided what papers required his attention, and she communicated any decisions that were made. While she meticulously managed all her husband’s activities until a new president was inaugurated in January 1921, it has never been clear to what extent she controlled the last year of his presidency.
One way to strengthen the 25th Amendment is to require that the White House physician be appointed by a bipartisan congressional committee and retained for a term of at least ten years, to discourage a doctor’s blind loyalty to a single president. This physician would be mandated to report annually, or more frequently if necessary, to Congress on the president’s health, with findings subject to the Freedom of Information Act. The president could still appoint his own personal physicians, but a congressionally appointed doctor is more likely to give Americans information about the health of the commander in chief who wields nuclear codes.
Given President Biden’s current status and the inherent uncertainty of the 25th Amendment, how confident can anyone be right now that the nation’s fate is in steady hands.
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Cory Franklin was director of medical intensive care at Cook County Hospital in Chicago for more than 25 years. An editorial board contributor to the Chicago Tribune op-ed page, he writes freelance medical and non-medical articles. His work has also appeared in the New York Times, Jerusalem Post, Chicago Sun-Times, New York Post, Guardian, Washington Post and has been excerpted in the New York Review of Books. Cory was also Harrison Ford’s technical adviser and one of the role models for the character Ford played in the 1993 movie, “The Fugitive.” His YouTube podcast “Rememberingthepassed” has received 900,000 hits to date. He published “Chicago Flashbulbs” in 2013, “Cook County ICU: 30 Years of Unforgettable Patients and Odd Cases” in 2015, and most recently coauthored, A Guide to Writing College Admission Essays: Practical Advice for Students and Parents in 2021. Dr. Franklin is the author of the forthcoming book, “The COVID Diaries 2020-2024: Anatomy of a Contagion As It Happened.”
Comments 32
This clown of a man ( a life-long, bully, cheat and grifter and now with dementia) will plunge the world into war and sadly the people who ended his candidacy for 2024 are just fine with that, God help us all.
When you are a life long, bully, cheat, grifter, liar dementia tends to set in early, and hard 🙂
..praying..
Would Harris in charge really put the nation in steady hands? Not likely.
We have laws, amendments to the constitution and procedures in place for a reason. While I am not a Joe Biden fan or supporter I do support the legal system. Hippa laws are in place to protect a persons medical history. Biden should be afforded this same right as any one of us. If his actions are detrimental to the safety of the nation then action needs to be taken.
An appointed POH could certainly allow for Biden to seek treatment while his condition is evaluated and a course of treatment is established. A detailed POH would allow him the dignity required to step aside.
Yes this is a very slippery slope as to what should be disclosed and to what extent while still allowing the patient the dignity required to maintain their life.
We now have concrete proof that neither Biden nor Kackling Kamala are running this country and that should alarm everyone!
The Deep State is running the country and has been since 2021. They lost power in 2016 after pseudo-running it under Obama and hence we all are witness to their attempts to destroy Trump’s administration. Internally, they undercut Trump’s cabinet whenever they could get away with it. Hence, the federal government agencies need a complete redesign, with top and middle management removed from roles they hold (like Fauci) for far too long. Need executive agency term limits for roles above a certain responsibility level.
Jonathan Swift predicted this in Gulliver’s Travels, with the “flappers,” who were bureaucrats that controlled what the putative “rulers” noticed and responded to in Lilliput. It is absolutely about our current bureaucrats who have been working at taking over for so long – and are, horribly, succeeding.
I’ll indulge a pet peeve here. Edith Wilson, wife # 2 was a functional illiterate who let Wilson’s long-time aide/advisor/confidant Colonel House make the decisions. Biden’s situation is worse, he’s largely a figurehead.
This situation isn’t as unusual historically. James Madison [possibly epileptic] spend most of his second term ‘on vacation’ at his plantation across the river, Cleveland had emergency surgery secretly in the White House, FDR was dying during his last campaign, Kennedy was taking [proscribed] mind-altering medication, etc., etc.
So much for the ‘independent’ press.
It doesn’t matter. We get nothing but lies from the White House, and as we have seen, they will do anything to keep power. There are no leaders in the Republican ranks, at least none with the fortitude to do what needs to be done. America as we’ve known it is over.
Disagree with your pessimistic attitude, although we are near a tipping point!
George
Very well said & as I see unavoidable.
The history of democracy through time is they falter after about 300 years. We are getting there. God help those that come after us.
Dr Franklin is correct in his assessment along with a solution to reduce potential medical bias. I would add to include part of the process be the taking cabinet members out of the equation since they too have a bias and loyalty. Paul is right about the HIPPA concern. However, the HIPPA confidentiality should not apply to specific conditions and allow a qualified independent medical professional (not a political or DEI hire) to disclose a condition of incapacitation and then have a process in which it would be minimally exposed to those who would need to initiate invoking the amendment.
The whole bastardization of our laws and constitution by the current Radical Democrat (or is it Communist) regime, across the board has made this entire situation grave for quite awhile now. It doesn’t appear to be getting better and Cackles isn’t the answer. But, as crazy as it sounds, she would still be a better option, at least in appearance, to Judas Joe. However, replacing Joe at this point isn’t much more than closing the barn door until after the horses escaped. It doesn’t make much sense and it wouldn’t make a difference. This goes much deeper than him. The damage is done. The question is – can it be fixed or is it really too late ?
Cory, thanks for an insightful column. I agree that taking on the role of President or V.P. means you forgo at some level your HIPPA rights. I concur that a congressionally appointed M.D. to a 10 year term is appropriate to conduct an annual “peoples” evaluation of the President and V.P.’s health. The country currently (at least on paper in the Constitution) still belongs to “we the people”.
The non- partisan medical evaluation is the correct approach. HIPAA concerns are secondary to the detriment of sustaining an incapacitated chief executive. A select committee should be authorized to consider any privileged medical reports. Swalwell and Schiff would never leak from a Democrat administration.
You need to update Cory’s bio-sketch. His book “The Covid Diaries” is not forthcoming, but rather recently published. I bought it, read it and passed it along to my sister who worked for the Shelby County, TN, Dept of Health during the pandemic.
Great points Dr. Cory. The whole issue would probably be settled if the Department of Justice would just release the tapes of Bidens interview with them that basically led to his acquittal of any criminal charges for having unsecured documents. When something needs to be concealed and buried you can always fall back on the guise of “national security”. Shame on the Republicans for not forcing the issue and letting it die. Just like they’re letting the Deep State apparatus off the hook for allowing assassination attempts on Trump’s life. “National Security” it is indeed.
The 25th amendment will not be invoked until Biden displays a clear and present disability like a stroke or terminal disease diagnosis. Even if he falls down in plain sight of the TV cameras he will not be removed. But there is another way it could happen–if he starts a nuclear war. That might get Congress’ attention.
I’m quite certain the nation’s fate is in unsteady hands. Cory’s recommendations should be added to the constitution although I don’t see any bipartisan cooperation happening in congress. I would also take it a step farther and make it mandatory that a report on physical and mental health be made public when a person is officially nominated as a candidate for president and vice president. A substantial number of government officials knew about Biden’s mental and physical condition back in 2020 and were complicit in the cover up. The safety and well being of the nation’s citizens is too important to let this happen again. Thanks to Cory for his essay on an important issue.
A congressionally appointed doctor is not a good idea. The position would be weaponized. Imagine it in the hands of a Democratic Congress against (a future) executive like a President Trump. Waiving HIPAA protections (except for the betting line in professional sports) would also be weaponized. The status quo, imperfect as it is, is better than an ad hoc correction aimed at a single person. Yes, the Edith Wilson scenario is a threat. So are the current (and future) puppeteers behind the President. Wishing for a Harry Truman who will rise to the office is likely a vain hope.
I agree. Not a good idea. In fact a very bad idea. As you say, it would clearly be weaponized. Some political problems have no fool proof remedy. This is one.
Cory,
Whaddaya mean – who’s running the country? Even us chumbolones can see through the curtain of oz – it’s Obama and Nancy of course, consulting with FLOTUS perhaps! For sure it’s not Kackling Kamala – if she had a brain, she’d really be dangerous! God help us….
1. Obey the Hippocratic oath, Doctor.
2. There is no need to make ANY patients medical history public, UNLESS they have some deadly, easily spread infectious disease. Then public health dictates action. Case in point: Typhoid Mary, NYC.
3. There are means to remove him/her/ from office. ITS MEANT TO BE DIFFICULT. QUIT WHINING LIKE A 2 YEAR NOT GETTING HIS/HER WAY. Awww it’s too hard. Too bad.
4. Cognitive tests are BS. Most readers of this website would fail alot of questions
To Thomas Rudd: Thank you for your voice of sanity. It is beyond my comprehension how intelligent people can ignore the incoherent unhinged babble spewed by Trump and not question his (Trump’s) mental capacity. Add to that the cruel, white supremacist, racist lies spewed by Vance. These people and their henchmen and women are pure Evil.
In fact I agree with you. Can you imagine the “circus” that would entail an “abnormal” cognitive test? Dr. Franklin invoke “cognitive testing” as some sort of miraculous solution. He ignores all the inconvenient and complex issues of such testing such as sensitivity, specificity, PPV, NPV. Such testing – in an older population such as the readership here (as you point out) or our older Presidential candidates, where the prevalence of mild cognitive impairment is relatively high – would prove problematic. So I agree, Dr. Franklin’s idea is beyond bad, it is a future bigger problem disguised as a solution.
Thomas, I neglected to comment on your most powerful insight: Obey the Hippocratic Oath: “first do no harm.” Dr. Franklin’s remedy does more harm than the disease in question. The so called “independent, non partisan” physician will likely be neither, as Mr. Coon points out. This reminds me of the “independent counsel” and his persistent fiascos and absurdities.
Thank you Cory for this column and explanation of what we all see and hear….when made public. Those last three words are the crux of the whole column and your reasoning of a non-partisan presidential doctor in place for 10 years should be taken up and put into law. But, with the division within our Congress, that probably is a dead fish.
God bless you sir and keep on keeping on.
Tom
All good points.
That said, I’m concerned about bad actors across the globe who could exploit the current White House leadership.
Specifically, who would be calling the shots in the event of a conflict or crises?
Gary Riemersma
Cory, I love the idea of an independent White House physician requiring congressional approval. Excellent suggestion.
The irony here is that one of our greatest Presidents, one who John Kass admires to the point of idolization, Ronald Reagan, was likely moderately cognitive impaired (and maybe worse) … certainly pretty obvious in the last two years of his presidency. And in retrospect knowing his final medical outcome there is little doubt about this.
Cory, excellent column, but one minor correction: Warren Harding didn’t become president until early March 1921. The changeover date was not switched to January 20 until 1937, FDR’s 2nd term. That means Edith Wilson was acting as president, or trying to, for a full year and a half after her husband’s stroke. (Of course, “Doctor” Jill Biden many have broken that record by now…)
https://nypost.com/2024/09/20/us-news/jill-biden-leads-one-of-husbands-last-cabinet-meetings-before-hosting-rose-garden-party-without-him/
In a way, Joe’s obvious mental decline (obvious to all but mainstream media liars) is in one respect not the end of the world, since Obama has been running the show since January 2021.