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The History of Presidential Health, Succession, and the 25th Amendment in 15 slides.

Posted on | October 5, 2020 | No Comments

Mike Magee

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In 2019 I taught a course at the President’s College at the University of Hartford titled “The President’s Health and the 25th Amendment.” The questions raised then are now prescient and include:

1. What is the 25th Amendment?
2. How do you define “inability” and who defines it?
3. Has Presidential “inability” been a problem in the past?
4. What is the role of the White House physician?
5. What is his/her responsibility to the nation?
6. Is a Presidential candidate required to release medical records?
7. Have White House doctors lied to the public in the past?
8. Have Presidents lied about their health?

In this abbreviated format, here are 15 selected slides from that course with brief commentary.

Slide 1. The first commentary in our Constitution did not appear until 1787. This was not simply an oversight on the part of our Founding Fathers. Rather it reflected that the issue would be thorny and complicated – as it has remained to this day. In the statement, the position of Vice President is established, and (in the case of inability of the President) his duties “devolve on the Vice President” until the Congress identifies who should take the President’s place.

Slide 2. Over the next roughly half century, the issue of succession surfaces twice. In 1792, five years after the Constitutional Convention, Congress establishes that the line of succession after the Vice-President will be first to the leader of the Senate and then to the leader of the House of Representatives. When President William Henry Harrison dies in office from Typhus 49 years later, his Vice President, John Tyler”, has a local judge swear him in as “President.”  John Quincy Adams is outraged by this precedent setting move since most believed he was only entitled to serve for an interim period as “Acting President.”

Slide 3. Historically, turnover in the Executive Office has been relatively common in our history requiring frequent succession. Violence and disease have been the common instigators of these crises.

Slide 4. Formal discussions regarding how best to legislatively manage succession have often followed these acute crises. On July 2, 1881, James Garfield was shot. Though incapacitated, he (and his supporters) refused to relinquish control of the government for the next 80 days until he died. When Chester Arthur, his VP assumed the Presidency, he directed the Legislature to reconsider the issue of succession. In 1886, they passed the Succession Act. It created a line of successors in the Cabinet should a President and Vice President become disabled. The successor would be titled “Acting President.” The issue of defining “inability” and who could determine “inability” was left unaddressed.

Slide 5. President Woodrow Wilson is often cited as the prime example of Presidential abuse when faced with incapacity. During his second term, exhausted from campaign efforts in support of passage of the League of Nations, Wilson suffered a stroke on October 2, 1919. For the next 15 months, Wilson’s 2nd wife, Edith Wilson, his long time Chief of Staff, Joe Tumulty, and White House Dr. Gary Grayson entered into a conspiracy to run the government and cover up his incapacity. The VP would not confront the issue fearing he’d be accused of opportunism. When the Secretary of State, Robert Lansing, finally surfaced the problem, he was fired. Wilson had to be convinced not to run for a 3rd term. He died on March 4, 1921.

Slide 6. White House doctors through history have routinely lied about the President’s health. Wilson’s doctor was not an outlier. FDR’s doctor, Admiral Ross McIntire, actively hid FDR’s progressive and eventually fatal Congestive Heart Failure for over a year before he died in office. This included penning a rosy portrayal of the President’s health in Collier’s magazine, titled, “Unconquerable Spirit” 2 months before he died.

Slide 7. In the middle of the Cold War, on September 24, 1955, President Eisenhower suffered a massive heart attack that confined him for months out West until he could be transported back to his home in Gettysburg, PA. He reportedly insisted on waiting until he was capable of walking unaided up the airplane stairs for a photo op. The Democratic Congress at the time asked for hearings to clarify succession issues. In 1958, rather than submit to legislative changes, Eisenhower penned a letter to Nixon, authorizing a temporary and reversible transfer of power were he to declare “inability” to govern.

Slide 8. At the time, Congress raised, and Eisenhower partly addressed the issue in his letter to Nixon.

Slide 9. Senator Frederick Payne (R, ME) had this response in 1958. The key issue he said was “Who will determine ‘inability’?”

Slide 10. Attorney General Robert F. Kennedy commented directly on the role of the Vice-President in declaring “inability” if a President is unable to do so himself. After JFK is assassinated, LBJ seeks clarity on the issue of succession. A junior senator from Indiana agrees to head up a Congressional committee to explore the need for a Constitutional Amendment. Few believe it will amount to much.

Slide 11. Since 1788, there have been 11,000 proposed Amendments to the Constitution. Only 27 to date have succeeded and 10 of these were contained in the original Bill of Rights. Ratification of an Amendment requires support from 2/3 of both Houses of Congress, and approval by ¾’s of the states. On January 23, 1967, the 25th Amendment was ratified.

Slide 12.  During Nixon’s second term, the 25th Amendment gets a work out. VP Spiro Agnew resigns in disgrace. Gerald Ford is appointed by President Nixon. Nixon resigns and Ford assumes the Presidency. Ford appoints Rockefeller as his VP.

Slide 13. During his Presidency, Ronald Reagan ignores the 25th Amendment after an assassination attempt. His PR people create an inaccurate and deceptive heroic narrative for public consumption to cover-up the seriousness of his condition. Returning a “hero” to address both Houses of Congress helps Reagan pass his “trickle down” tax cut which is partially reversed one year later.

Slide 14.  When Reagan undergoes general surgery for colon cancer, he transfers power temporarily to George H. W. Bush, but specifically notes that he is not invoking the 25th Amendment. Late in his second term, the First Lady, and White House staff (including the White House doctors) cover-up Reagan’s declining mental status. George H. Bush is the first to formally invoke the 25th Amendment when under anaesthesia to Dick Cheney.

Slide 15. In 1992, twenty-five years after its passage, Birch Bayh and Fordham University Dean of the Law School, John D. Feerick (both of whom were involved in creating the original language for the 25th Amendment in 1967), co-chair a committee to re-examine the Amendment, and recommend any necessary changes. They conclude it should be left as is, deciding that the issue of both “inability” and “transfer of power” is primarily a political decision, and that transferring the power to override the result’s of the body politics vote to a medical committee, the Supreme Court, or other expert body, would create more problems than it would solve. They also reinforced their faith in Section 4 of the 25th Amendment – a succession scheme empowering the Cabinet and the Vice-President to appeal to Congress to remove an “inable” President who refuses to leave.

Pfizer CEO Should Distance Himself From Trump.

Posted on | October 1, 2020 | 2 Comments

Mike Magee

The executive team on the 18th floor at 42nd and 2nd Avenue had to be shifting in their seats a bit on Tuesday night as they heard the President of the United States assure the American public that Pfizer will very soon (maybe even in October) come to the rescue with a miraculous Covid-19 vaccine.

It’s been a heady two months for Pfizer’s new CEO, Albert Bourla. A veterinarian from Greece who spent 27 years working his way up the corporate ladder, he’s in the middle of a barnyard mess that is not of his making.

Two months ago, he teamed up with Germany-based BioNTech and landed a $1.95 billion deal with the US government. That contract is contingent on him finding a safe and effective vaccine and can deliver 100 million doses as promised (with 500 million more to follow).

With such happy news, why is Mr. Bourla increasingly sweating under the Primetime spotlight?

It’s likely because of the company he’s been forced to keep. As Trump former henchman Michael Cohen warned Congress on February 27, 2019. “I did the same thing that you’re doing now” and you will eventually “suffer the same consequences that I’m suffering.”

Increasingly Bourla finds himself out on the limb – a situation that became more tenuous during this week’s debate. First, Pfizer is some distance (months not days) away from completing phase three studies which have at least as good a chance of failing as succeeding. Second, if the vaccine is submitted for approval, it will have to survive a fully transparent and very public FDA review. Third, since Trump is a chronic liar who has displaced real science experts, it’s unlikely that the public will respond with open-armed trust even with an approval.

Bourla and the other PhRMA execs signaled as much when they sent out a joint release in September pledging not to cut corners on safety. Why did Bourla feel this was necessary? He told the Washington Post, “People are confused. Right now, they don’t know who to believe and what to believe. And we felt that, as this debate was peaking, we had to go out and say that we are going to stand with science. And we had to make it clear that if there are pressures, we are going to honor our legacy, and we are going to do whatever it takes to deliver a product that is safe and effective.”

He may not want to hit that “Pfizer’s legacy” too hard. As recounted in “Code Blue: Inside the Medical Industrial Complex”, the Pfizer “rap sheet” over six decades, from controversial experiments on children with meningitis in Nigeria to a $2.3 billion fine for massive over-marketing, is not exactly the kind of “legacy” worth defending in public.

The point being for Bourla, you’ve been warned. Aggressively maintain your distance from Trump, and listen to the advice of your fellow Greek, Aristotle, who said, “Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts.”

Sam Rayburn on Trump’s Disruptive Debate.

Posted on | September 30, 2020 | 4 Comments

Mike Magee

When it comes to policy and politics, it can be a struggle to maintain perspective and provide context. And as Trump’s performance in last night’s presidential debate well illustrated, Sam Rayburn was right when he said, “Any jackass can kick down a barn, but it takes a good carpenter to build one.”

In 1987, I published the “Positive Medicine Credo” – five principles to guide health professionals committed to caring for others. Underpinning all of these was health, further complicated by Covid-19.

A decade ago, I laid out seven principles that attempted to respond to the question, “How do we make America healthy again?”

The seven visions were:

1. Health is political.

2. Reconnecting the family.

3. Lifespan Planning.

4. Home-centered health care.

5. Integrating health databases.

6. Techmanity: Humanizing technology.

7. Caring for the “planetary patient.”

In the lead up to the 2018 Mid-Term election, The New Yorker’s  David Remnick mirrored these same values and visions in a piece titled “Trump’s illiberalism.” He also suggested that Trump and his followers were testing the resilience of  “sturdy-seeming American values” and the endurance of  “institutions that the President has scorned and threatened.”

He saw active turnout in the 2018 midterm elections as part of the test, but also suggested that any victory here would require more to follow.

Last night’s assault by the president on American standards and values should motivate, activate, and accelerate healthy Americans committed to embracing diversity, leading in the public sphere, exposing and addressing prejudice wherever and whenever it occurs, limiting guns and violence, encouraging respectful communications, and rising to the environmental challenges that threaten our planet’s health.

A healthy America requires healthy Americans. We need to get on with it. The message on November 3rd needs to be strong, clear and resounding in its rejection of Trump and his legislative enablers. Enough time has passed for us to rise to this challenge. #2020 Election.

The Future of the ACA Four Years Later – and The Perils of Being A Futurist.

Posted on | September 29, 2020 | 2 Comments

Mike Magee

Tonight we witness the first Presidential debate of 2020, and the future of the ACA (in the middle of a pandemic) is once again on the line. If past is prologue, make predictions of the outcome at your own risk.

Four years ago, 1 month before the election, the New England Journal of Medicine served as a platform for dueling visions of the outcome. UNC’s Jonathan Oberlander penned the fallout of a Democratic win, while Gail Wilensky presented the Republican version. Both landed far afield of what has happened since.

October, 2016

A Democratic Victory: by Jonathan Oberlander

1. While the ACA has resulted in a decline in the nation’s uninsured rate from 48 million to 27 million, the rising cost of insurance, especially for those at the upper levels of poverty (200% of the Federal Poverty Limit), where a family plan on average now costs more than $20,000 a year, is untenable. Translation: some changes will be required to address their needs.

2. There is also a problem with rising deductibles. This averaged $303 in 2006, but hit $1,077 in 2015. Hillary Clinton’s plan is to provide a refundable tax credit for citizens with high out-of-pocket deductibles.

3. Three major insurers (UnitedHealthcare, Humana, and Aetna) are planning to curtail their involvement with the ACA exchanges. They complain that the pricing differential they are allowed between the healthiest and sickest enrollees (3 to 1) is not adequate to cover their financial risk. In their view, we should go back to 5 to 1. It is unlikely they will force the government hand on this, any more than reversing the provisions that prevent exclusion based on prior conditions. Instead their stance will likely move both the federal government and state governments toward “public options”, whether through downward extension of age eligibility for Medicare, or expansion Massachusetts-like universal coverage plans to other states.

4. A Democratic victory would likely cause most Republican led states that have resisted Medicaid expansion under ACA to give up their resistance. Their abandonment of a stance that has been financially self-destructive to their states could be hastened by changes that assure permanent, near 100% federal funding of Medicaid into the future. This would come with greater standardization of rules nationwide governing the coverage package. Any move toward nationalization would carry with it more focus on cost and efficiency, with data transparency leading the charge to address price gougers, research result hiders, sloppy prescribers, and outcome outliers.

A Republican Victory: by Gail Wilensky

1. Gail Wilensky predicts the likely outcome of the presidential race to be a Democratic victory, with the House remaining under Republican control, but the Senate majority potentially shifting to the Democrats. In this light, she outlines the current Paul Ryan’ health care plan versus Donald Trump’s which bundles an outright repeal of the ACA with allowance of drug reimportation and negotiation of Medicare Part D drug prices.

2. Were the Ryan plan to be implemented, unchanged by a Democratic controlled Senate or presidential veto, we could expect:

a) Medicare age eligibility would gradually increase to age 67, and Medicare would become a “premium support” , partially privatized program.

b) High deductible plans, which deliberately increase consumer focus on cost, would be promoted through government supported Tax Savings Accounts, housing tax-exempt funds to cover excess medical costs.

c) The current prohibitions on exclusion for prior conditions or excessive cost profiles would remain in force. But insurers would be allowed a 5 to 1 cost ratio spread based on age.

d). Medicaid would be funded by a federal grant at “X” dollars per person, and states would have substantial leeway on how to prioritize spending as well as the ability to require “able bodied adult recipients to work”.

September 29, 2020

Our current ACA reality:

  1. Trump is trying for a second term.
  2. The ACA is still alive, though Trump and Republicans are still trying to kill it. The latest gambit – stack the Supreme Court with a conservative majority. His alternative? Still not clear.
  3. Large majorities of Americans now support universal health coverage, protection for pre-existing conditions, and a comprehensive basic benefit package.
  4. Only 12 deep red states continue to pass on the extended Medicaid offering built into the ACA.
  5. Medicare eligibility remains at age 65, and there is active debate whether the country should move to a “Medicare-for-all” plan.
  6. Cost of health care annually now approaches $4 Trillion, with approximately 25% (in multiple studies) wasted, and qualities outcomes far short of other developed nations.
  7. There are 16 health care workers for every one physician in America – and at least half of these have absolutely now clinical “hands-on” care role.

What will happen next?

Predict at your own risk.

The Science Community Has Had Enough of Trump and Is Finding Their Voice.

Posted on | September 18, 2020 | 1 Comment

Mike Magee

In its 175-year history, Scientific American has never endorsed a US presidential candidate – until now. This week they endorsed Joe Biden for president. One week earlier, H. Holden Thorp, the spicy new editor of Science, penned an editorial titled “Trump Lied About Science.”

Scientists have historically looked the other way and allowed the dust to settle. That’s what they did when George W. Bush flirted with creationism and put forward his cockeyed stem cell policy.  And they didn’t blink twice as Ronald Reagan super-charged  science infrastructure  while refusing to utter the words HIV/AIDS.

What especially had the Science editor worked up in an interview this week in Wired magazine, was Trump’s “constant drumbeat that scientists and science are somehow out to get the administration.” Add to this that the president is “willing to go into the Rose Garden or the briefing room and just say things that are blatantly untrue.”

But really what got Thorp’s goat was Trump’s March, 2020 remark to Pharma execs to “Do me a favor. Speed up a vaccine.”  That kind of interference can bend the risk/benefit curve, and have a long-lasting ill effect on the public’s trust of science in general.

“I believe we’ve been overly deferential to the idea that we should stay out of it. Look what that’s gotten us. It’s gotten climate denial. It’s gotten us creationism. It’s gotten us prohibited from doing stem cell research.”, said Thorp.

Scientific American, in its historic endorsement, was no more diplomatic. They wrote, “The evidence and the science show that Donald Trump has badly damaged the U.S. and its people—because he rejects evidence and science. The most devastating example is his dishonest and inept response to the COVID-19 pandemic, which cost more than 190,000 Americans their lives by the middle of September.”

Don’t expect any dampening of the controversy in the next sixty days. This week’s mental collapse of political hatchet man, Michael Caputo, and this headline in the New York Times – “C.D.C. Testing Guidance Was Published Against Scientists’ Objections:  A controversial guideline saying people without Covid-19 symptoms didn’t need to get tested for the virus came from H.H.S. officials and skipped the C.D.C.’s scientific review process.” – clearly suggests otherwise.

Structural Racism Within The Medicaid Program – Still Present a Half-Century Later.

Posted on | September 9, 2020 | 2 Comments

Mike Magee

If you would like to visit the meeting place of America’s two great contemporary pandemics –COVID-19 and structural racism – you need only walk down the historic Medicaid path and enter the dangling door of its weakest health care link, the Nursing Home.

The current pandemic is disproportionately killing and maiming Black Americans. This should come as no surprise to Medical Historians familiar with our Medicaid program. Prejudice and bias were baked in well before the signing of Medicaid and Medicare on July 30, 1965.

President Kennedy’s efforting on behalf of health coverage expansion met stiff resistance from the American Medical Association and Southern states in 1960. Part of their strategic pushback was the endorsement of a state-run and voluntary offering for the poor and disadvantaged called Kerr-Mills. Predictably, Southern states feigned support, and enrollment was largely non-existent. Only 3.3% of participants nationwide came from the 10-state Deep South “Black Belt.”

Based on this experience, when President Johnson resurrected health care as a “martyr’s cause” after the Kennedy assassination, he carefully built into Medicaid “comprehensive care and services to substantially all individuals who meet the plan’s eligibility standards” by 1977. But by 1972, after seven years of skirmishes, the provision disappeared.

Ever the political pragmatist, President Johnson had focused instead on Medicare and hospital compliance, rather than Medicaid and Nursing Homes. And that alone was a pitched battle at the time.

In the 1960s, hospitals throughout the South still maintained segregated restrooms and segregated floors and wards designed to separate black and white populations. The passage of the Civil Rights Act in July 1964 had sent a clear warning: Title VI of the bill stated, “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, denied benefits of, or be subject to discrimination under any program receiving federal assistance.”

Johnson deployed 1,000 federal inspectors across the country to ensure that the letter of the law was being implemented. Even with this, 10 months after Medicare had been signed into law, and a month or two before the launch date, half the hospitals inspected in 12 Southern states were still noncompliant. So he leaned on Vice President Humphrey to head south and communicate directly with every mayor in the noncompliant Southern cities and simply, one way or another, get the job done.

By May 23, 1966, all hospitals were compliant except in Alabama, Louisiana, Mississippi, and South Carolina. By July, they were clearly heading in the right direction, though 320 hospitals had not yet completed the conversions. All would soon comply.

Medicaid has always disproportionately served as a backstop for Black Americans. They are more likely to be financially eligible, and more likely to spend their final years in Nursing Homes funded by Medicaid dollars. They are also likely to die younger than white counterparts, have twice the rate of heart disease, high blood pressure and stroke. For younger Black women, lack of access to maternity care and mental health services places them at high risk. Their children are 500% more likely to die of asthma than white children.

As for Medicaid, a half-century later, we’re still fighting the same discriminatory battle, and largely in the very same states.

Southern states, led by Republican governors, have led the way in a decade long battle to collapse the Affordable Care Act, and most notably the 90% federally funded expansion of Medicaid services and eligibility which the Supreme Court deemed voluntary in a landmark 2012 decision. Until 2017, eighteen states stubbornly held ranks. But in the past three years six states (Idaho, Utah, Oklahoma, Nebraska, Maine and Missouri) have fallen in line after voter propositions passed in their states.

That leaves some 2 million vulnerable citizens without coverage that is readily available. Polls in those states show that 2/3rds of their citizens favor Medicaid expansion in opposition to their own governors – and that was before the pandemic. Even in red counties of red states, 1/3 of Republicans are polling in favor of Medicaid expansion.

When COVID-19 hit, Nursing Homes were at the epicenter. The major Southern states resisting enrollment in Kerr-Mills in 1965 were Texas, Arkansas, Louisiana, Tennessee, Mississippi, Alabama, Florida, Georgia, South Carolina, and North Carolina. Today, eight of the twelve states resisting Medicaid are the same. These 12 states account for 92% of adults eligible for but not covered by expanded coverage. As such, they are last in line for COVID-19 testing, PPE, and vaccines when they arrive.

As a recent Health Affairs article concluded: “Addressing these ills through policy is not the only step needed to end racism in our country, but it is a necessary—and long overdue—step.”

Trump “Compstockery” – Militarizing Our Post Office!

Posted on | September 3, 2020 | 2 Comments

Mike Magee

As we witnessed in last month’s Republication convention, when in doubt, go with the golden oldies. Australian songwriter Peter Allen said as much in the fourth stanza of his classic song, “Everything Old Is New Again”, which reads:

“Don’t throw the past away

You might need it some rainy day

Dreams can come true again

When everything old is new again”

In fact, there’s nothing original in Trump’s playbook, and that includes his postal service gambit. Manipulating and militarizing the US Postal Service dates back to 1873 in the form of one Anthony Comstock, a zealot who was fond of describing himself as a “weeder in God’s garden.”

A savvy New York City insider, he created the New York Society for the Suppression of Vice declaring himself committed to stamping out smut. But to accomplish this task, he needed a hammer. He turned to political allies in the United States Postal Service who provided him with police powers and the right to carry a weapon.

Still, the weapon was of little use without a law to enforce. So he turned to his friends in industry who reached out to Congress.  “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” was passed on March 3, 1873, ch. 258, § 2, 17 Stat. 599. Forever after known as the Comstock Law, the statute’s lofty intent was “to prevent the mails from being used to corrupt the public morals.”

“Obscenity” was broadly described and included all print materials advancing birth control, abortion or family planning. Comstock held the post as special agent to the Postal Service for the next 42 years, and during that time bragged that he had prosecuted 3,600 defendants and destroying 160 tons of obscene literature.

In the face of Congressional failure back then, opposition among citizenry stiffened. There was Margaret Sanger who labeled Comstock a “moral eunuch” and edited “The Woman Rebel” whose motto was “Working Women, build up within yourselves a conscious fighting character against all things which enslave you.” 

Sanger not only promoted family planning and women’s access to health care including abortions, but also challenged Comstock’s allies in industry writing, “We know the capitalist class must have a slave class, bred in poverty and reared in ignorance. That is why it is quite consistent with their laws that there should be a heavy penalty of five years’ imprisonment for imparting information as to the means of preventing conception. Industry…(must) undersell its rival competitors. They have only one way to do this, and that is to get labor cheap. The cheapest labor is that of women and children; the larger the number of children in a family, the earlier they enter the factory.”

Our nation then (and hopefully now) maintains the capacity to self-correct. In doing so, we rely on autocrats to over-play their hands. Trump is currently doing so with his face-off’s with LeBron James, Chris Webber and Doc Rivers.

A century ago, Comstock made poor choices as well. For example, he picked a fight with Irish playwright George Bernard Shaw by instigating the placement of his play “Man and Superman” on the “restricted book list” at the New York Public Library.  Queried by the New York Times for his reaction to the affront, Shaw posted this response from London on September 25, 1905:

“Dear Sir – Nobody outside of America is likely to be in the least surprised. Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”

Ouch!

The Supreme Court upheld the Comstock Law until 1983. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983), the Supreme Court re-examined the Comstock Law and concluded it did not support “a substantial governmental interest.”  In an historic smack down the Court declared, “that a restriction of this scope is more extensive than the Constitution permits, for the government may not reduce the adult population … to reading only what is fit for children.“

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Originally Published: The Health Care Blog/Sept. 1, 2020

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