[Congressional Record Volume 163, Number 26 (Tuesday, February 14, 2017)]
[Senate]
[Pages S1142-S1149]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONGRESSIONAL DISAPPROVAL OF A RULE SUBMITTED BY THE
SOCIAL SECURITY ADMINISTRATION
The PRESIDING OFFICER. The clerk will report the joint resolution.
The legislative clerk read as follows:
A joint resolution (H.J. Res. 40) providing for
congressional disapproval under chapter 8 of title 5, United
States Code, of the rule submitted by the Social Security
Administration relating to Implementation of the NICS
Improvement Amendments Act of 2007.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, today I come to the floor to address my
colleagues about the bipartisan resolution of disapproval that I
introduced on January 30, along with Senator Crapo and 24 other
cosponsors. This resolution now has 32 cosponsors, and of course this
resolution of disapproval is absolutely necessary.
The resolution of disapproval is a procedure, as we know, under the
Congressional Review Act for repealing executive branch regulations.
The regulation at issue here in this disapproval resolution was issued
by the Social Security Administration under President Obama. This
regulation unfairly stigmatizes people with disabilities. If the
regulation is not repealed, it will allow the agency to very unfairly
deprive Social Security recipients of their Second Amendment rights.
The regulation would result in disability recipients being reported to
the National Instant Criminal Background Check System as ineligible to
own a firearm and, thus, have their Second Amendment rights violated.
This is essentially a national gun ban list. The agency accomplishes
this by doing two things: determining if a person has a disorder on a
vague ``mental disorders'' list, and, two, appointing a representative
payee to manage benefit payments.
This process has been in place for years to merely assign a
representative payee. That is merely someone who is authorized to deal
with the bureaucracy on behalf of that Social Security recipient to
help a recipient with their finances. Now it is being used to report
beneficiaries to a list so that they cannot buy or own a gun. Of
course, once on that list, individuals are prohibited, as I have
already inferred, from purchasing, owning, and possessing firearms,
thus violating Second Amendment rights.
The regulation is flawed beyond any kind of repair. It results in
reporting
[[Page S1143]]
people to the gun ban list that should not be on that list at all. It
deprives those people of their constitutional rights and, in a very
important way, violates their constitutional rights without even due
process.
Under current Federal law, one must first be deemed ``mentally
defective'' before being reported to the gun ban list. However, the
mental disorder list in this regulation is filled with vague
characteristics that do not fit into the Federal ``mentally defective''
standard.
The disorder list is inconsistent with the Federal mentally defective
standard. More importantly, the list was never designed to regulate
firearms. As such, it is improper to use it for that purpose.
Many of the disorders on the list are unrelated to gun safety. For
example, the disorders list includes eating disorders, disorders that
merely impact sleep or cause restlessness, and even disorders that
could cause ``feelings of inadequacy.''
Because the Second Amendment is a fundamental right, the government
must have a very compelling reason to regulate, and the regulation must
be very narrowly tailored. It unfairly stigmatizes people with
disabilities. The government is essentially saying that a person with a
disability, such as an eating disorder, is more likely to be violent
and should no longer be allowed to own a gun.
There is no evidence to support that general idea and, consequently,
people being denied constitutional rights without due process. And if a
specific individual is likely to be violent due to the nature of their
mental illness, then the government should have to prove it. It is
pretty basic constitutional law: The government should have to carry
the burden before denying a constitutional right.
The National Council on Disability--and that happens to be a
nonpartisan and independent Federal agency--has said this:
The rule stigmatizes a group of people who are not likely
to perpetuate the kind of violence the rule hopes to address.
Furthermore, it deprives a much broader class of individuals
of a constitutional right than was intended by Federal law.
In addition, the American Civil Liberties Union has said:
We oppose this rule because it advances and reinforces the
harmful stereotype that people with mental disabilities, a
vast and diverse group of citizens, are violent. There is no
data to support a connection between the need for a
representative payee . . . and a propensity toward gun
violence.
That was a quote from the American Civil Liberties Union.
The Consortium for Citizens with Disabilities--and that is a
coalition of 100 national disability groups--shares the same concerns
about regulations, and I will quote from them:
The current public dialogue is replete with inaccurate
stereotyping of people with mental disabilities as violent
and dangerous, and there is a real concern that the kind of
policy change encompassed by this rule will reinforce those
unfounded assumptions.
In other words, those unfounded assumptions are about who might be
disabled or not.
I ask unanimous consent to have these letters printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Council on Disability,
Washington, DC, January 24, 2017.
Hon. Mitch McConnell,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Paul Ryan,
Speaker of the House, U.S. House of Representatives,
Washington, DC.
Dear Majority Leader McConnell and Speaker Ryan: I write on
behalf of the National Council on Disability (NCD) regarding
the final rule the Social Security Administration (SSA)
released on December 19th, 2016, implementing provisions of
the National Instant Criminal Background Check System (NICS)
Improvement Amendments Act of 2007, 81 FR 91702. In
accordance with our mandate to advise the President,
Congress, and other federal agencies regarding policies,
programs, practices, and procedures that affect people with
disabilities, NCD submitted comments to SSA on the proposed
rule on June 30th, 2016. In our comments, we cautioned
against implementation of the proposed rule because:
``[t]here is, simply put, no nexus between the inability to
manage money and the ability to safely and responsibly own,
possess or use a firearm. This arbitrary linkage not only
unnecessarily and unreasonably deprives individuals with
disabilities of a constitutional right, it increases the
stigma for those who, due to their disabilities, may need a
representative payee[.]''
Despite our objections and that of many other individuals
and organizations received by SSA regarding the proposed
rule, the final rule released in late December was largely
unchanged. Because of the importance of the constitutional
right at stake and the very real stigma that this rule
legitimizes, NCD recommends that Congress consider utilizing
the Congressional Review Act (CRA) to repeal this rule.
NCD is a nonpartisan, independent federal agency with no
stated position with respect to gun-ownership or gun-control
other than our long-held position that restrictions on gun
possession or ownership based on psychiatric or intellectual
disability must be based on a verifiable concern as to
whether the individual poses a heightened risk of danger to
themselves or others if they are in possession of a weapon.
Additionally, it is critically important that any restriction
on gun possession or ownership on this basis is imposed only
after the individual has been afforded due process and given
an opportunity to respond to allegations that they are not
able to safely possess or own a firearm due to his or her
disability. NCD believes that SSA's final rule falls far
short of meeting these criteria.
Additionally, as NCD also cautioned SSA in our comments on
the proposed rule, we have concerns regarding the ability of
SSA to fairly and effectively implement this rule--assuming
it would be possible to do so--given the long-standing issues
SSA already has regarding long delays in adjudication and
difficulty in providing consistent, prompt service to
beneficiaries with respect to its core mission. This rule
creates an entirely new function for an agency that has long
noted that it has not been given sufficient resources to do
the important work it is already charged with doing. With all
due respect to SSA, our federal partner, this rule is simply
a bridge too far. In fact, it is conceivable that attempts to
implement this rule may strain the already scarce
administrative resources available to the agency, further
impairing its ability to carry out its core mission.
The CRA is a powerful mechanism for controlling regulatory
overreach, and NCD urges its use advisedly and cautiously. In
this particular case, the potential for real harm to the
constitutional rights of people with psychiatric and
intellectual disabilities is grave as is the potential to
undermine the essential mission of an agency that millions of
people with and without disabilities rely upon to meet their
basic needs. Therefore, in this instance, NCD feels that
utilizing the CRA to repeal the final rule is not only
warranted, but necessary.
Regards,
Clyde E. Terry,
Chair.
____
American Civil Liberties Union,
February 9, 2017.
Vote YES on the Resolution of Disapproval, S.J. Res. 14
(Social Security Administration NICS Final Rule).
Vote NO on the Resolution of Disapproval, S.J. Res. 12
(Federal Acquisition Regulation/Fair Pay and Safe
Workplaces EO).
Dear Senators: On behalf of the American Civil Liberties
Union (ACLU), we urge members of the Senate to support the
resolution disapproving the final rule of the Social Security
Administration which implements the National Instant Criminal
Background Check System Improvement Amendment Acts of 2007.
Additionally we urge members to oppose the resolution of
disapproval of the rule submitted by the Department of
Defense, the General Services Administration, and NASA
relating to the Federal Acquisition Regulation that implement
the Fair Pay and Safe Workplace Executive Order 13673.
Social Security Administration (SSA)'s Implementation of the NICS
Improvement Amendment Acts of 2007 Harms People with Disabilities
In December 2016, the SSA promulgated a final rule that
would require the names of all Social Security Disability
Insurance (SSDI) and Supplemental Security Income (SSI)
benefit recipients--who, because of a mental impairment, use
a representative payee to help manage their benefits--be
submitted to the National Instant Criminal Background Check
System (NICS), which is used during gun purchases.
We oppose this rule because it advances and reinforces the
harmful stereotype that people with mental disabilities, a
vast and diverse group of citizens, are violent and should
not own a gun. There is no data to support a connection
between the need for a representative payee to manage one's
Social Security disability benefits and a propensity toward
gun violence. The rule further demonstrates the damaging
phenomenon of ``spread,'' or the perception that a disabled
individual with one area of impairment automatically has
additional, negative and unrelated attributes. Here, the rule
automatically conflates one disability-related
characteristic, that is, difficulty managing money, with the
inability to safely possess a firearm.
The rule includes no meaningful due process protections
prior to the SSA's transmittal of names to the NICS database.
The determination by SSA line staff that a beneficiary needs
a representative payee to manage their money benefit is
simply not an ``adjudication'' in any ordinary meaning of the
word. Nor is it a determination that the person ``lacks the
mental capacity to contract or manage his own affairs'' as
required
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by the NICS. Indeed, the law and the SSA clearly state that
representative payees are appointed for many individuals who
are legally competent.
We recognize that enacting new regulations relating to
firearms can raise difficult questions. The ACLU believes
that the right to own and use guns is not absolute or free
from government regulation, since firearms are inherently
dangerous instrumentalities and their use, unlike other
activities protected by the Bill of Rights, can inflict
serious bodily injury or death. Therefore, firearms are
subject to reasonable regulation in the interests of public
safety, crime prevention, maintaining the peace,
environmental protection, and public health. We do not oppose
regulation of firearms as long as it is reasonably related to
these legitimate government interests.
At the same time, regulation of firearms and individual gun
ownership or use must be consistent with civil liberties
principles, such as due process, equal protection, freedom
from unlawful searches, and privacy. All individuals have the
right to be judged on the basis of their individual
capabilities, not the characteristics and capabilities that
are sometimes attributed (often mistakenly) to any group or
class to which they belong. A disability should not
constitute grounds for the automatic per se denial of any
right or privilege, including gun ownership.
Fair Pay and Safe Workplaces Regulations Advance Worker Safety and
Rights
The rules implementing the Fair Pay and Safe Workplaces
Executive Order take an important step towards creating more
equitable and safe work conditions by ensuring that federal
contractors provide workplaces that comply with federal labor
and civil rights laws.
Employers that have the privilege of doing business with
the federal government must meet their legal obligations. The
Fair Pay and Safe Workplace regulations are crucial because
they help ensure that federal contractors behave responsibly
and ethically with respect to labor standards and civil
rights laws and that they are complying with federal labor
and employment laws such as the Fair Labor Standards Act
(which includes the Equal Pay Act), Title VII of the Civil
Rights Act, the Americans with Disabilities Act of 1990 and
the Occupational Safety and Health Act, and their state law
equivalents. The Executive Order also bans contractors from
forcing employees to arbitrate claims under Title VII of the
Civil Rights Act as well as claims of sexual harassment and
sexual assault.
Congress should stand with workers, increase the
accountability of federal contractors and oppose any attempts
to undo the Fair Pay and Safe Workplaces regulations. These
rules will help ensure that the federal government does not
contract with employers that routinely violate workplace
health and safety protections, engage in age, disability,
race, and sex discrimination, withhold wages, or commit other
labor violations.
If you have any questions, please feel free to contact
Vania Leveille, senior legislative counsel, at
[email protected] or (202) 715-0806.
Sincerely,
Faiz Shakir,
Director, Washington Legislative Office.
Vania Leveille,
Senior Legislative Counsel, Washington Legislative Office.
____
Consortium for
Citizens with Disabilities,
Washington, DC, January 26, 2017.
Hon. Mitch McConnell,
Senate Majority Leader,
Washington, DC.
Hon. Chuck Schumer,
Senate Minority Leader,
Washington, DC.
Dear Majority Leader McConnell and Minority Leader Schumer:
The Co-Chairs of the Rights Task Force of the Consortium of
Citizens with Disabilities (CCD) urge you to support a
Congressional Review Act (CRA) resolution to disapprove the
Final Rule issued by the Social Security Administration (SSA)
on December 19, 2016, ``Implementation of the NICS
Improvement Amendments Act of 2007.'' This rule would require
the Social Security Administration to forward the names of
all Social Security Disability Insurance (SSDI) and
Supplemental Security Income (SSI) benefit recipients who use
a representative payee to help manage their benefits due to a
mental impairment to the National Instant Criminal Background
Check System (NICS).
The Consortium for Citizens with Disabilities (CCD) is the
largest coalition of national organizations working together
to advocate for Federal public policy that ensures the self-
determination, independence, empowerment, integration and
inclusion of children and adults with disabilities in all
aspects of society.
Prior to the issuance of the Final Rule, the CCD Rights
Task Force conveyed its opposition to the rule through a
letter to the Obama Administration and through the public
comment process. We--and many other members of CCD--opposed
the rule for a number of reasons, including:
The damaging message that may be sent by a SSA policy
change, which focused on reporting individuals who receive
assistance from representative payees in managing their
benefits to the NICS gun database. The current public
dialogue is replete with inaccurate stereotyping of people
with mental disabilities as violent and dangerous, and there
is a real concern that the kind of policy change encompassed
by this rule will reinforce those unfounded assumptions.
The absence of any data suggesting that there is any
connection between the need for a representative payee to
manage one's Social Security disability benefits and a
propensity toward gun violence.
The absence of any meaningful due process protections prior
to the SSA's transmittal of names to the NICS database.
Although the NICS Improvements Act of 2007 allows agencies to
transmit the names of individuals who have been
``adjudicated'' to lack the capacity to manage their own
affairs, SSA's process does not constitute an adjudication
and does not include a finding that individuals are broadly
unable to manage their own affairs.
Based on similar concerns, the National Council on
Disability, an independent federal agency charged with
advising the President, Congress, and other federal agencies
regarding disability policy, has urged Congress to use the
Congressional Review Act to repeal this rule.
We urge Congress to act, through the CRA process, to
disapprove this new rule and prevent the damage that it
inflicts on the disability community.
On behalf of the CCD Rights Task Force, the undersigned Co-
Chairs,
Dara Baldwin,
National Disability Rights Network.
Samantha Crane,
Autistic Self-Advocacy Network.
Sandy Finucane,
Epilepsy Foundation Law.
Jennifer Mathis,
Bazelon Center for Mental Health.
Mark Richert,
American Foundation for the Blind.
Mr. GRASSLEY. Mr. President, some of the supporters of the new gun
ban have brought forth arguments to try to discredit the other side.
They have said that repealing the agency rule will allow the mentally
ill to acquire firearms.
Let me tell you why that is not true. Under this regulation, the
Social Security Administration never, ever determines a person to be
mentally ill before reporting them to this gun ban list. It does not
provide due process before reporting them to the list. Once the agency
places a person on this disorders list, it then moves to assign a
representative payee. But that is a very flawed process as well.
The former Social Security Administration inspector general said the
following last year in testimony before a committee about assigning a
representative payee. This will be a very short quote from the
inspector general: ``It's not a scientific decision; it's more of a
personal opinion.''
It is quite obvious under our Constitution's due process clause that
the personal opinion of a bureaucrat cannot be the basis for taking
away a person's Second Amendment rights.
Further, a June 2015 internal Social Security report found
significant shortcomings in the representative payee process, namely
that--and I will quote from the Social Security report--``the Social
Security Administration's capability determinations were undeveloped,
undocumented, or insufficiently documented.''
A very legitimate question can be raised: How can any of us be
comfortable allowing our fellow citizens to be subjected to such a
process, a process that leads to the violation of constitutional
rights? The regulation does not then require a formal hearing at any
point.
Federal law and other regulations require that a formal hearing take
place.
Mr. President, 18 U.S.C. 922(d)(4) requires adjudication before
depriving someone of the right to own a firearm due to mental illness.
There can be no adjudication if there is no hearing.
A 1996 ATF Federal Register Notice says ``the legislative history of
the Gun Control Act makes it clear that a formal adjudication is
necessary before firearms disabilities are incurred.''
The Obama administration knew that fundamental rights required
constitutional due process. At the bare minimum, that requires a
hearing. Yet, in this rule, no hearing is being afforded to that
individual that will eventually have their constitutional rights
abrogated. Of course, that ought to be considered not only a travesty
but a travesty on the Constitution as
[[Page S1145]]
well. The constitutional due process is entirely nonexistent because
there is absolutely no opportunity for an individual to challenge the
proceedings against them.
The American Civil Liberties Union has echoed the same concerns,
stating that ``the rule includes no meaningful due process protections
prior to the Social Security Administration's transmittal of the names
to the National Instant Criminal Background Check System database.''
The Second Amendment is very much being tossed aside without a formal
dispute process to challenge the action before the constitutional right
is abridged. On these facts alone, the regulation should be repealed.
Yet there is more.
The regulation fails to establish that a person is a danger to
themselves or a danger to others before taking away the constitutional
rights the Second Amendment allows. If a rule premised on safety is to
have any credibility, one would obviously think that the government
needs to prove a person is dangerous, but this rule fails in that
regard because it does not require the agency to find a person is, in
fact, dangerous. The Second Amendment is a fundamental right requiring
the government to carry the burden showing a person has a dangerous
mental illness. This regulation obviously and simply does not achieve
that requirement.
To be clear, however, if this regulation is repealed, Federal gun
prohibitions will still exist. Individuals who have been determined to
be a danger to themselves or others will still be prohibited from
purchasing firearms. Also, individuals who are found to have a
dangerous mental illness will be prohibited from purchasing a firearm.
A person convicted of a felony or a misdemeanor crime of domestic
violence will still be prohibited from purchasing, owning, and
possessing a firearm. The same is true for those involuntarily
committed to a mental institution.
As government expands, liberty contracts. It follows that with the
expansion of government, power is centralized here, in this island
surrounded by reality that we call Washington, DC, rather than with the
American people. Often with that centralization of power, fairness does
not necessarily follow, as demonstrated by this regulation. This Obama-
era regulation is a perfect example of government wielding too much
power--the power to deny people due process, the power to deny people
their constitutional rights under the Second Amendment.
The process described herein is extremely problematic and
necessitates being done away with by the passing of this resolution of
disapproval. It is not clear that any of these disorders a person is
labeled with has anything whatsoever to do with a person's ability to
responsibly own a firearm, and there is insufficient due process to
ensure that a person actually has a given disorder that would interfere
with their safe use of a firearm. Notably, even if a representative
payee has been assigned, the individual still maintains the capacity to
contract.
Thus, the government is subject to a very low threshold to report
names to the gun list and no burden of proof is required. By contrast,
under this regulation, those who are reported to the list must prove
the negative. They have to prove that the government is wrong. They
must prove they are not a danger in order to get their name off that
gun ban list. For the government to shift the burden to the citizen
whose rights are being deprived is clearly unfair and unconstitutional.
The failure to determine if a person is mentally ill or a danger to
self or others is a material defect to this regulation, as is the
failure to afford constitutional due process. There is no reasonable
basis under this regulation to justify abridging that very important,
fundamental constitutional right, and that is why this regulation must
be repealed through the passage of this resolution of disapproval.
I yield the floor.
Order for Recess
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Senate
recess from 12:30 p.m. to 2:15 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. Mr. President, the Senate is now considering H.J. Res. 40,
a resolution of disapproval regarding a misguided Social Security
Administration regulation that infringes on many Americans' Second
Amendment rights. As a cosponsor of the Senate companion to this
resolution, which was filed by Chairman Grassley, I would like to add
my voice to that of the many advocates, including the National
Disabilities Rights Network and groups such as the National Rifle
Association that work to protect the rights of law-abiding gun owners
who have expressed support for this important legislation.
I would also like to express my appreciation to Chairman Grassley and
others for their leadership on this issue. This ill-advised regulation
not only stigmatizes individuals with disabilities, it also violates
the Second Amendment and due process rights of many Americans, and it
should be repealed.
As a longtime supporter of Americans' constitutional right to keep
and bear arms, I was deeply troubled by this regulation, which allows
the Social Security Administration to report individuals they consider,
in the words used in the regulation, to be ``mentally defective'' to
the National Instant Criminal Background Check System, or NICS, if they
have ``mental impairments,'' receive disability insurance benefits, and
receive those benefits through a representative payee.
When someone receives benefits through SSA's representative payee
program, SSA field office employees have deemed them unable to manage
their finances. However, SSA's representative payee program itself is,
by many accounts, ineffectively administered.
You don't have to take my word for it. As recently as 2013, the
Government Accountability Office identified that SSA ``struggles to
effectively administer its Payee Program.'' There are unexplained and
large discrepancies across various regions of the country that SSA
serves in numbers of beneficiaries who are assigned by SSA field
offices to be in the payee program. Yet, despite these known gaps and
discrepancies, SSA apparently thought that this system was sufficient
to determine whether some beneficiaries should be afforded a
constitutional right.
Let's be clear. Under SSA's rule, individuals who are not found by
SSA employees or any other competent authority to be a danger to
themselves or others but rather simply need help managing their
finances will be prohibited from legally purchasing a firearm. While we
all want to make sure that the NICS system works effectively to prevent
violent criminals and those who actually do pose a threat from
purchasing firearms, this regulation is exceedingly overbroad.
Moreover, it is not at all clear to me that SSA employees in field
offices should be put in charge of deciding who can legally purchase a
firearm. Of course, the bureaucrats at SSA who were prodded by the
Obama administration to write the rule say they will create some sort
of internal structure to allow beneficiaries to appeal the decisions of
SSA employees. Of course, that means SSA would need to construct a new
costly adjudication system to review decisions that its employees are
not well-equipped to make in the first place. This is particularly
strange, given that it is standard practice at SSA to decry the
agency's funding levels while also claiming it is already unable to
adequately serve its beneficiaries due to budgetary shortfalls.
All of this simply does not add up. The SSA is not at all equipped
for this kind of decisionmaking; moreover, the standards that would
apply under the regulation for SSA to report a beneficiary to the NICS
represent a much lower bar than the one anticipated in the applicable
Federal statutes to determine the eligibility to purchase a firearm.
That being the case, we need to pass Chairman Grassley's resolution of
disapproval, which has already been approved by the House of
Representatives with bipartisan support.
I encourage my colleagues to join me in voting in favor of this
resolution.
I thank my friend from Oregon for allowing me to go forward on this
short set of remarks.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I listened carefully to my colleagues on
the
[[Page S1146]]
other side, and I want to make sure people really understand what this
debate is all about. This debate is about background checks. It is
about mental health. It is not about taking away constitutional rights.
I am struck--and I know the distinguished Presiding Officer has taken
part in a lot of these debates as well--that whenever there is a
discussion about guns in the U.S. Senate, Senators get up and say: We
shouldn't be debating guns, we ought to be debating mental health. That
is what we are talking about today--mental health and background
checks.
The fact is, we can go into townhall meetings in any part of America
and hear extraordinary support for the whole idea of background checks.
Background checks are right at the heart of this morning's debate and
supporting background checks is not some extreme far-out position to
hold. In fact, opposing background checks is the view that is way out
of the mainstream of American political thought.
A recent poll found that 92 percent of gun owners supported expanded
background checks. Let me just repeat that 92 percent of gun owners in
America support expanded background checks. As the courts continue to
interpret the language of the Second Amendment, one matter has been
made clear: background checks are a constitutional part of the exercise
of those rights.
So what I am going to do is describe what this is all about, but I
want to, as we get going, make sure people understand that
fundamentally this is about background checks, and it is about mental
health. It is not about taking away somebody's constitutional rights.
Here is how the proposal under discussion works. If there is an
individual with a severe mental impairment that means that another
person--perhaps a family member--is in charge of their Social Security
benefits, then the background check is to be informed by Social
Security that the person with a severe mental impairment is ineligible
to buy a gun. The fact is, we can always talk about tailoring the rule
in a slightly different way. It is critically important that
individuals who wind up in the background check system are not treated
unfairly, but the fact is, anyone who thinks they have been unfairly
affected by this proposal can appeal, and they are most likely going to
win, as long as they are not a danger to themselves or anyone else. If
the Social Security Administration says no, that person has the power
to take their case to court.
What we are talking about here is, in my view, not about Democrats or
Republicans, liberals and conservatives; I think we are just talking
about plain old, unvarnished common sense. We want to, all of us--all
of us--stop shootings by those who are in danger of hurting themselves
or other persons.
The rule came out last year, but it goes back to the shootings at
Virginia Tech and Sandy Hook. What the previous administration sought
to do was to find some commonsense gun safety steps that could be taken
under laws on the books. I want to emphasize this as well because
whenever we talk about guns, what Senators always say is: Let's use the
laws on the books. Let's use the laws on the books. We don't need to
chase new laws and the like.
So the administration sought to use the laws on the books--the
previous administration--to prevent the horrendous acts of violence
that have so scarred our country in recent years. I know the
distinguished Presiding Officer knows something about that from his own
State.
I hope my colleagues will oppose the resolution. I think we are all
aware in the Senate that whenever you have an issue that even touches
on guns, everybody goes into their corners. They go into their
respective corners.
My own view is--and I represent a State with a great many gun owners.
I have had more than 750 townhall meetings at home. A lot of them--a
lot of them--involve debates about guns. Overwhelmingly, in a State
like mine, where there are a lot of gun owners, gun owners support
making sure there are background checks. They want to address this as a
mental health issue. Gun owners overwhelmingly say they have just had
it with Congress doing absolutely nothing when it comes to practical,
commonsense gun measures like background checks. They look at what goes
on in Washington, DC--and I have had so many gun owners--and this comes
up not just at town meetings. We have an icon in our State, Fred Meyer,
a store. I think I have had chicken in every Fred Meyer in the State of
Oregon. People come up and talk about issues like this in a Fred Meyer,
and they ask: Why in the world can't there be Democrats and Republicans
who just come together and do something that helps make our country a
little bit safer? That is what this is all about.
I am not here to say this measure is a panacea; that somehow this is
a magical elixir that is going to reduce gun violence in America. That
wouldn't be right and certainly not part of how I see these debates. I
see this as addressing a commonsense, practical measure relating to
background checks and mental health.
I listened to my colleague, my friend from the Finance Committee,
Senator Grassley. If Members of the Senate feel so strongly that this
particular rule needs addressing, then there ought to be a debate. The
Senate, Democrats and Republicans, should get together and figure out
how to improve the rule.
What is important is that is not going to be possible if this
resolution passes. If this rule is struck down under the Congressional
Review Act, it wouldn't just scrap this particular background check, it
would salt the Earth. It would prevent this issue from being addressed
for quite a number of years.
I am going to close by talking a bit personally for a minute about
why I feel so strongly about this. My late brother Jeff, who passed at
the age of 51, suffered from schizophrenia, a serious mental
impairment. He started to withdraw in his teens. His condition got
worse over the next few years. We were close. He was just a couple of
years younger than I. I watched the continuing odyssey that Jeff went
through of various mental health facilities, run-ins with the law on
the streets.
I will say to the Presiding Officer that not a day went by in the
Wyden household when we weren't worried that Jeff was going to hurt
himself or somebody else. That was the reality for the Wyden family,
and that is a fear that I know is felt in households all across the
country, day in and day out.
My brother received benefits from public programs while he struggled
with a mental impairment. My dad wrote a book about it because we were
so hopeful at one time. He wrote a book called ``Conquering
Schizophrenia.'' We thought there was a breakthrough drug known as
olanzapine.
We always felt during those years that it would be a big mistake if
Jeff Wyden could buy a gun. He would have been a danger to himself. He
would have been a danger to others. I don't think Americans should have
to carry that burden and experience that kind of worry that comes along
with the danger we felt week after week for years in the Wyden
household and that I know other families across the country feel as
well.
(Mr. CRUZ assumed the Chair.)
The Presiding Officer wasn't in the Chair when this began, and I
started off by way of saying that, to me, this is about background
checks, it is about mental health; it is not about taking away people's
constitutional rights, but I can understand why other people would have
a difference of opinion. That is what the Senate is about. That is what
the Senate is supposed to do--to debate these issues. So if somebody
said: Well, there is a better way to do this, to improve it, count me
in--count me in to talk with colleagues, the Presiding Officer, and
others--but if you support this resolution today, you close off that
door. You preempt that possibility because of the way the Congressional
Review Act actually works.
I urge my colleagues to oppose this. This is what the Senate says it
wants to do when we talk about guns. I wish I had a nickel, in fact,
for every time the Senate talked about guns--I wish I had a nickel for
each time a Senator got up and said: We shouldn't be working on guns.
We ought to be working on mental health. That is what this is about,
mental health and background checks.
I urge my colleagues to oppose the resolution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. MURPHY. Mr. President, I have heard my Republican friends tell
those
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of us who want the laws of this country changed to protect our
constituents against gun violence that what we should focus on is
enforcing the existing law; that we don't need any new laws, all we
need to do is focus on enforcing the existing law.
Senator Wyden said he wished he had a nickel for every time he has
been told our focus should be on background checks. Well, I wish I had
a nickel for every time my colleagues told me we should focus on
enforcing the existing law. Yet I would also be a rich man if I had a
nickel for every time Republicans came to the floor and tried to
undermine the existing law, tried to rewrite the existing law to make
it harder to enforce it.
The Appropriations Act is, on an annual basis, loaded up with riders
that hamstring enforcement agencies, don't allow them to actually
enforce existing laws. The CRA we have before us today will make it
harder for the Federal Government to do what we have told them to do
for decades, which is to put dangerous people and people who are
seriously mentally ill on the list of those who are prohibited from
buying guns. That is the existing law. The existing law says that if
you are convicted of a serious crime or you have a serious mental
illness and you have gone through a process by which a determination
has been made by a government agency as such, that you should not be
able to buy a weapon.
Why do we have that law on the books? Why have we come together as
Republicans and Democrats to say that people with serious mental
illness or people who have been adjudicated of a violent crime
shouldn't be able to buy weapons? It is because the evidence tells us
over and over again that if you have committed a violent crime, you are
likely--more likely than if you haven't committed a violent crime--to
commit another one. And over and over again, as we have seen these mass
shooters walk into places like Sandy Hook Elementary School or a movie
theater in Colorado or a classroom in Blacksburg, we know that people
with serious mental illness in this country can go buy a very powerful
weapon and do great damage with it.
That does not mean there is an inherent connection between mental
illness and violence. In fact, we know the opposite to be true. If you
are mentally ill, you are probably more likely to be the victim of
violence than you are to be the perpetrator of it. But we do know that
in this country, given the fact that weapons are so easy to come by,
people with mental illness--serious mental illness--who have an
intersection with visions of violence often do great harm. So we made a
collective decision as Republicans and Democrats that if you have a
serious mental illness, you probably shouldn't be able to go and buy an
assault weapon. That is what the law says.
Section 101 of the NICS Improvement Act is titled ``Enhancement of
requirement that Federal departments and agencies provide relevant
information to the National Instant Criminal Background Check System.''
That is a piece of legislation which both Republicans and Democrats
supported. It commands that Federal agencies provide relevant
information to the criminal background check system.
What is relevant information? ATF defines someone who should not be
able to buy a gun as one who ``lacks the mental capacity to manage his
own affairs.'' So there is the existing statute. The existing statute
says that relevant agencies should forward information to the criminal
background check system on individuals who are prohibited from owning
guns, and that is defined in part as an individual who ``lacks the
mental capacity to manage his own affairs.''
That is exactly what the regulation proffered by the Obama
administration at the end of last year does. It says that individuals
who have filed a claim for disability, who meet the requirements of one
of Social Security's mental disorders listing of impairments, have been
found to be so severely impaired that they are unable to work, and have
been found, with due process, to be incapable of managing their own
benefits and have had a representative appointed to them to manage
their disability benefits, that those individuals meet the definition
of someone who lacks the mental capacity to manage their own affairs.
If you are supporting this CRA today, then you are undermining the
ability of law enforcement to do their job to enforce the law as
Congress has passed. So spare me this rhetoric about passing no new
laws because we should just focus on enforcement. Once again, with this
CRA, you are undermining the ability of the Federal Government and of
law enforcement to enforce the law.
Let's be clear about what the danger is. It is correct to state that
there is no inherent connection between being mentally ill and being
dangerous, but the risk is not just that an individual is going to buy
a gun and use it themselves; the risk is that someone who literally
can't deposit their own paycheck probably can't or likely can't
responsibly own and protect a gun.
I could sit here for the rest of the day and recite the number of
times a gun owned by one individual got used in an accidental shooting,
got taken illegally, stolen from their premises, and used in a crime.
The danger of an individual who has severe mental incapacity is not
just that they are going to take that weapon and fire it but that they
are not going to own, keep, and protect it responsibly. If you can't
manage your own financial affairs, how can we expect that you are going
to be a responsible steward of a dangerous, lethal firearm?
We are talking about a very limited group of individuals here--who,
by the way, under the regulation, have due process to contest the
determination. First of all, they have an ability to contest the
determination by Social Security that they shouldn't be able to manage
their own financial affairs, and then the regulation secondarily gives
them the ability to specifically contest their limitation on gun
ownership. So there is full ability for the individual or for the
family to contest this limitation, which makes it completely
constitutional. Nonsense that this is a restriction of a constitutional
right.
The Heller decision, which does hold that an individual has a right
to gun ownership, also makes it explicit in Justice Scalia's opinion
that there are limitations on that right, and the Scalia decision
itself lists as one of those conditions the restriction of gun
ownership by people who are seriously mentally ill.
The law is clear that Federal agencies are required to upload
information onto NICS of those individuals who cannot manage their own
financial affairs because of mental illness. The Supreme Court is clear
that this is entirely constitutional. So why are we doing this? Why are
we having a debate about rolling back the criminal background check
system when 90 percent of Americans support it?
No matter what State you live in, sit down with your constituents and
tell them that you voted to allow people who are seriously mentally ill
to be able to buy guns. You are not going to get a lot of takers. And
it is not because people don't have compassion for people with mental
illness. I have worked for the last 2 years to pass the most
substantial mental health reform act that this body has seen in a
decade. I have spent as much or more time than anybody in this Chamber
advocating for the rights of people with mental illness and for their
treatment. But I also understand that when people are so mentally ill
that they can't manage their own financial affairs, they probably
shouldn't buy a gun. That is a small class of people.
What makes me so angry about this is I have no idea how to go back to
the people whom I represent in Connecticut and tell them that in the 4
years since the massacre in a smalltown elementary school, not only has
Congress passed no law, made no change in statute to try to keep
dangerous weapons out of the hands of would-be shooters, but that today
we are doing exactly the opposite. The response to the epidemic of mass
shootings in this country is to make it easier for people with serious
mental illness to get guns. How do I explain that to people in
Connecticut?
How do the folks representing areas where shootings are a regular
occurrence explain that Congress has done nothing to address mass
shootings, to address the epidemic rates of gun violence in our cities,
and yet we think it is so important to undermine the criminal
background check system--not strengthen it, undermine it--that in the
first month of this new administration and this new Congress, we are
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rushing through this repeal of a commonsense regulation? That is deeply
offensive to the majority of Americans, who think we should be
strengthening our criminal background checks system, not undermining
it. Ninety percent of Americans think we should have universal
background checks. Not only are we not listening to them, we are
undermining the criminal background checks system today.
I get that the gun lobby is pretty powerful in this place. I get that
they have stood in the way of changes in our criminal background checks
system that were supported by 90 percent of Americans. But even I
wasn't cynical enough to think they had so much power that they could
get Congress to roll back, to undermine the criminal background check
system in the wake of this continued horrific level of gun violence all
across the country.
Senator Wyden is right. The danger in this is not just that it has
the immediate impact of undermining the criminal background check
system, but it potentially blocks our ability to get this right in the
future. We don't know what the precedent is for CRAs because we haven't
done them before. What we know is that it says you can't pass any
regulation that is substantially similar to the regulation that you
legislated on. Well, what does that mean in the context of keeping
people with serious mental illness off the criminal background check
system? Does that mean we can't ever legislate or regulate on the
narrow issue of individuals who have had their right of financial
affairs restricted through Social Security, or is that a broader
prohibition that limits the administration's ability to regulate on
strengthening of the criminal background check system in a much more
comprehensive way?
We are playing with fire here because this is a precedent we know
nothing about. We are playing with fire because we are potentially
limiting the ability to ever get this issue right in the future when 90
percent of Americans want us to work together on it.
I understand this issue is a sensitive one. Having spent my entire
career working hand in hand with committed advocates for people with
mental illness, I understand the danger of conflating mental illness
with violence. But this is a narrow category of individuals who by
definition fit the parameters in existing law for those who are
supposed to be on the NICS system.
For all the things that we disagree about on gun policy--I don't
suspect we are going to get a meeting of the minds this Congress on
whether all gun sales should be subject to background checks. I don't
suspect we are going to figure out a way to work together on
restricting access to high-capacity magazines or assault weapons. I
thought at least we agreed on keeping the background check system that
we have.
The existing law says that individuals who lack the mental capacity
to manage their own affairs should be included on the list of those who
are prohibited from buying weapons, and today we are undermining that
existing law. We are undermining the enforcement of current statute--
something Republicans have said over and over again they are not
interested in doing.
I strongly urge my colleagues to vote against this measure.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Mr. President, I ask unanimous consent to be able to
complete my remarks before the Senate recesses.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cabinet Nominations
Mr. THUNE. Mr. President, yesterday we began yet another week of
considering Cabinet nominations in the Senate--our fourth week, to be
precise--and we still have a long way to go. If anyone is wondering
whether this is a normal confirmation process, the answer is no, it is
not. Historically, Senate practice has been to quickly confirm a
President's Cabinet nominees. President Obama had six nominees
confirmed on his first day as President and nearly all the rest within
the first 2 weeks. This tradition of speedy confirmation goes back a
long way. By the point in every Presidency since President
Eisenhower's, most, if not all, of the President's Cabinet nominees had
been confirmed by now. Between 1881 and 1933, every incoming President
had all of his Cabinet nominees confirmed on day one.
What is the reason for this? Historically, Senators of both parties
have recognized that Cabinet officials play an essential part in
getting an administration up and running, doing the business of the
American people. Once the American people elect a President, the
thinking historically has gone that it is only right that the President
be given the advisers he needs to do the job he was elected to do--that
is, until now.
This year, Democrats decided that they have had enough of timely
Cabinet confirmations, that they have had enough of bipartisanship.
Since President Trump was inaugurated, Democrats have done everything
they can to drag out his Cabinet nominations. We don't have to take my
word for it; here is what Politico had to say:
Senate Democrats . . . are slow-walking the installation of
Trump's Cabinet to a historic degree. . . . They are voting
against Trump's Cabinet picks in unprecedented numbers.
Two weeks ago, the Washington Post published a piece titled ``Trump's
confirmations really are taking longer than his predecessors.''
``Democrats,'' the Post noted, ``have tried to slow the process,
invoking arcane parliamentary procedure to force delays, and boycotting
committee meetings to prevent votes.''
For a party that has spent a lot of time complaining about
obstruction, Democrats really are taking it to new heights. Thanks to
Democrats' obstruction, the Senate has had to spend so much time
confirming nominees that we have had very little time for actual
legislative business. We still have a long way to go to finish
confirming the President's Cabinet, unless the Democrats decide to stop
their obstruction. Democrats aren't even really accomplishing anything
with their delays.
Thanks to the rules change that they put in place in 2013--that was
something that was engineered in 2013 where they literally broke the
rules to change the rules--they can't actually prevent President
Trump's nominees from being confirmed. The only thing they can do is to
tie up the business of the Senate and delay work on legislation to
address the challenges that are facing American families.
Democrats may not like President Trump, but it is high time they get
used to the fact that he is our President. Democrats are not helping
anyone by preventing the President from having a fully functioning
administration. It is time for Democrats to abandon the obstruction,
confirm the President's nominees, and allow the Senate to move forward
with the business of the American people.
Nomination of Neil Gorsuch
Mr. President, in addition to Cabinet nominees, the Senate will be
considering another key nomination in the coming weeks, and that is
Judge Neil Gorsuch's nomination to the Supreme Court.
I met with Judge Gorsuch last week, and our meeting confirmed my
opinion that President Trump could not have made a better pick for the
Court. By now, I think Judge Gorsuch's qualifications are well known:
his exceptional intelligence, his gift for the written word, his
outstanding resume, and, most of all, his clear understanding of the
proper role of a judge.
In his remarks at the White House after accepting the nomination,
Judge Gorsuch spoke of judges' obligation to follow the law ``as they
find it and without respect to their personal political beliefs.''
``A judge who likes every outcome he reaches is very likely a bad
judge.'' Judge Gorsuch has said those words more than once. Why?
Because a judge who likes every outcome he reaches is likely making
decisions based on something other than the law.
That is a problem. The job of a judge is to interpret the law, not
write it--to call the balls and strikes, not to rewrite the rules of
the game. Everyone's rights are put in jeopardy when judges step
outside of their role and start changing the meaning of the law to suit
their personal opinions.
Judge Gorsuch doesn't just understand judges' responsibility; he
lives it. He has won respect from liberals and conservatives alike for
his deep commitment to following the law wherever
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it leads, even when he doesn't like the results.
Here is what Neal Katyal, an Acting Solicitor General for President
Obama, had to say about Judge Gorsuch:
I have seen him up close and in action, both in court and
on the Federal Appellate Rules Committee (where both of us
serve); he brings a sense of fairness and decency to the job,
and a temperament that suits the nation's highest court. . .
. I, for one, wish it were a Democrat choosing the next
justice.
But since that is not to be, one basic criteria should be
paramount: Is the nominee someone who will stand up for the
rule of law and say no to a president or Congress that strays
beyond the Constitution and laws?
I have no doubt that if confirmed, Judge Gorsuch would help
to restore confidence in the rule of law.
His years on the bench reveal a commitment to judicial
independence--a record that should give the American people
confidence that he will not compromise principle to favor the
president who appointed him.
Again, those are not the words of a Republican. That is what Neal
Katyal, formerly an Acting Solicitor General for President Obama, had
to say about Judge Gorsuch. It is pretty high praise coming from a
Democrat.
One of the Democrats' favorite tactics is to accuse Republican
nominees of being extremists, no matter how mainstream they actually
are. No matter how hard they try, I don't think they are going to have
much success with that tactic against Judge Gorsuch.
When liberal after liberal attests to his fairness and impartiality,
it is pretty hard to pretend he is anything but an excellent pick for
the Supreme Court.
Then there are the stats from his time on the Tenth Circuit. Last
week, the Wall Street Journal reported:
Judge Gorsuch has written some 800 opinions since joining
the Tenth Circuit Court of Appeals in 2006.
Only 1.75 percent (14 opinions) drew dissents from his
colleagues.
That makes 98 percent of his opinions unanimous, even on a
circuit where seven of the 12 active judges were appointed by
Democratic Presidents and five by Republicans.
So it is a very divided circuit court in terms of the composition.
Let me repeat that last line.
That makes 98 percent of his opinions unanimous even on a
circuit where seven of the 12 active judges were appointed by
Democratic Presidents and five by Republicans.
When 98 percent of your opinions are unanimous, it is pretty much
impossible to argue that you are somehow outside of the judicial
mainstream. Very few of Judge Gorsuch's decisions have gone to the
Supreme Court. When they have, they have been almost universally
upheld--often, unanimously. I wish Democrats luck in portraying Judge
Gorsuch as an extremist. I think they are going to have a very uphill
climb.
Both liberals and conservatives recognize that Judge Gorsuch is a
supremely qualified jurist who would make a terrific addition to the
Supreme Court. I hope that Senate Democrats will listen to the
consensus in favor of his nomination and abandon their threats of
obstruction. Democrats spend a lot of time talking about the importance
of confirming a ninth Justice to the Court. Now they are going to have
a chance to confirm an outstanding nominee. I hope they take it.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. Will the Senator withhold his suggestion?
Mr. THUNE. I withhold my suggestion.
____________________