Presidential Health and Succession


Friday, October 9, 2020

John Greabe

Professor John Greabe dives into presidential health and succession, especially in light of the age of the presidential candidates and Trump's recent COVID-19 diagnosis. Produced and Hosted by A. J. Kierstead

Read the NBC News Article referenced in the show here

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Legal topics include 25th amendment, constitutional law, president, government, health law, privacy

Read the Transcript

A. J. Kierstead (Host):

Professor John Greabe dives into presidential health and succession. This is The Legal Impact presented by the University of New Hampshire, Franklin Pierce School of Law, now accepting applications for J D graduate programs and online professional certificates. Learn more and apply at law@unh.edu. Opinions discussed are solely the opinion of the [inaudible 00:00:21] host and do not constitute legal advice or necessarily represent the official views of the university of New Hampshire. John, we're weeks away from an election where we have for the first time two candidates over the age of 70, with the incumbent even being diagnosed with COVID-19 just a week ago. This brings up many questions regarding presidential health and succession. To start off with what right does the American public have to the presidents health information? This has been ongoing issue when it comes to President Trump, even former vice-president Biden.

John Greabe:

AJ, like so many things, there's no clear rights specified in law anywhere. There's nothing in the constitution, no federal statute dictating disclosure of the president's health records. Yet, most would say that we, the American people, have a general right to know about the health and safety of the person who is enormously powered under our constitution, with respect to domestic law enforcement, international use of force and all sorts of other things. The answer to that question, isn't clear. The president has the power, like anybody else, to authorize disclosure of what he wants to be disclosed. He seemingly has the power as well to tell his doctors not to disclose anything he does not want disclosed. There's really little that anyone can do about that.

A. J. Kierstead (Host):

What was troubling for many, President Trump even asked some Walter Reed doctors to sign non-disclosure agreements. All linked to an NBC news article in the description that kind of covered this topic, which was kind of interesting and unprecedented, also. Isn't this kind of redundant considering HIPAA and other medical privacy restrictions also apply to sitting presidents.

John Greabe:

Yeah, they do. There's nothing in HIPAA that exempts the president from it's protections and HIPAA does regulate medical professionals with respect to the disclosure of private health information. There are some exceptions in HIPAA that some experts say could apply in cases of profound or overwhelming public necessity. There's no clear law on this. Like so much that's happening right now, it's relatively unprecedented. We'll see if after this period of time, when maybe saner heads prevail, will this be something that will be addressed. After the assassination of John F. Kennedy in 1963, the 25th amendment was adopted because there was a perception that under a constitutional order, there was really an insufficient ability to respond to the death of a president. The 25th amendment made provision for what happens when the president dies in a way that had not previously been written into the constitution.

A. J. Kierstead (Host):

That kind of brings up, I mean, what's the line between a president and being ill and having to relinquish their seat in government and who determines that?

John Greabe:

Well, it's ultimately the president determines that, and we have plenty of historical examples of presidents keeping serious, serious health problems secret. Woodrow Wilson history has shown suffered from the 1918 pandemic flu, and had a very, very serious series of strokes later in the year. Historians say that his wife was actually functioning as president. His wife and there were requests that his information, his situation rather be publicly disclosed and his physician and his wife resisted that. The public didn't know. The public didn't know the severity of Franklin Delano Roosevelt's polio. The public didn't know the extent to which president John F. Kennedy was suffering from crippling pain and was on all sorts of pain medications that can have an effect on one's judgment. This is not unprecedented. As you might imagine, the person in question, when that person is president, does not readily want disclosed anything that might serve as a basis for calling into question the president's judgment and actions.

A. J. Kierstead (Host):

With regards to the 25th amendment, getting added to the law was a lot more because of more modern times and globalization kind of making it more important than previous presidencies?

John Greabe:

That's probably true. By the time we reached the 1960s, the office of the president was so much more powerful than it had been at earlier points in history. Moreover, in the nature of the world had changed so that crises could emerge very, very quickly that affected the entire nation and indeed the entire planet. That would require a quick response. The 25th amendment sought to address that by providing a mechanism for first, the president on his or her own, to hand over power to someone else when the president becomes temporarily incapacitated. Then secondly, there's an extraordinarily difficult process written in there by which the vice president in conjunction either with other cabinet officials or somebody that Congress designates could seize power from an incapacitated president. It's very, very difficult under that provision, which is found in section four of the 25th amendment. It's very, very difficult for a vice-president to do that if the president were to resist.

A. J. Kierstead (Host):

Would the courts play any role in a worst case scenario in this situation?

John Greabe:

The courts really like to stay out of political questions. There's a political question doctrine that the court invokes fairly regularly in cases where the constitution arguably puts decisional power into another branch of government. I don't think there's much of a role for the court to play. Now, there certainly are some circumstances where one could imagine that the 25th amendment be interpreted. That there be some sort of fundamental disagreement about what the 25th amendment allows. In that sort of a situation you could, you could perhaps see the courts getting involved, but generally this is not something that we can look to the courts for, resolution of the problems that we're talking about you.

A. J. Kierstead (Host):

Thanks for listening to The Legal Impact, presented by UNH Franklin Pierce school of law. [inaudible 00:07:04] about the show. Please be sure to subscribe and comment on your favorite podcast platform, including Apple podcasts, Google play, and Spotify