[Congressional Record Volume 163, Number 26 (Tuesday, February 14, 2017)]
[Senate]
[Pages S1149-S1157]
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--Continued
The PRESIDING OFFICER. The majority whip.
Cabinet Nominations
Mr. CORNYN. Mr. President, for the last several weeks, we have been
doing all we can to take up and consider the President's nominations
for his Cabinet, even though we have had little or no cooperation from
the other side of the aisle.
Last night, we confirmed the President's top economic adviser--
something you would think people would think was pretty important--the
Secretary of the Treasury, and we did confirm the President's Secretary
of Veterans Affairs. Ironically, the vote for the Secretary of Veterans
Affairs was 100 to 0. So maybe somebody can explain to me what was the
necessity of delaying the confirmation of the Secretary of Veterans
Affairs for 3 weeks, leaving that important agency without a designated
and Senate-confirmed head?
Earlier today, we considered the nomination of Linda McMahon to serve
as the next head of the Small Business Administration, to help our
country's job creators reach their potential. Again, we had an
overwhelming vote for Linda McMahon for the SBA. So, again, my question
is, What purpose is served by delaying, by foot-dragging, and by
obstructing the President's choice of his Cabinet members?
We are glad we finally confirmed them, but to be honest, it is not
much to celebrate. By carrying out this unprecedented obstruction of
qualified nominees, our friends across the aisle are simply precluding
the Senate from considering other acts of legislation that would
actually be helpful to the American people. From my vantage point, it
is pretty clear. While they are headed down this self-destructive path,
our friends continue to listen and, sadly, cater to radical elements of
their own party that simply haven't gotten over the election and have
decided to obstruct the President and his agenda at all cost.
But we know for a fact, from our private conversations, that our
Democrat friends are not--well, they are fractured. Some of them
remembered what happened in 2014, when, under the leadership of then-
Majority Leader Reid, essentially everybody was frozen out of offering
legislation or amendments to legislation on the floor, including
Members of the majority party--then, Democrats, at the time. That
strategy really backfired, resulting in a huge Republican class of
outstanding Senators in 2014.
People don't like that across the country. They think we are sent
here to solve problems, and we work together and make progress on
behalf of the American people. This sort of mindless obstruction or
foot-dragging for foot-dragging's sake doesn't make any sense to them,
and it doesn't make any sense to me either.
Now, I realize the minority leader--the Democratic leader--probably
has the toughest job in Washington, DC--to try to keep the far left
fringes of his party happy, while trying to do the work of the American
people who sent us here to legislate. I do know that there are Members
of the Democratic caucus who are very interested in trying to
demonstrate their effectiveness by working on bipartisan legislation.
Some of them happen to be running for election in 2018 in States
carried by President Trump. You would think they would be incentivized
to tell the leadership of their own party--or the far left of their
party, which wants to do nothing but resist the Trump agenda and our
bipartisan agenda in the Senate--to stand down or that they are not
going to participate in that sort of mindless obstruction, because I
think their enlightened self-interest tells them that not only is this
what the American people sent us to do--to be productive on a
bipartisan basis--but it is also in their electoral self-interest, as
well.
As long as the Democratic leader caters to the fringe of his own
party and resists any sort of cooperation, I think they can expect the
same sort of results after Senator Reid led his party down that path in
2014. We are now headed into the fourth week of the new administration,
and we have only confirmed a handful of this President's Cabinet picks.
That is bad news not just for us but for the American people, as well.
Surely, after the election of November 8, when President Obama said
he wanted to make sure he participated in a peaceful transition of
power to the next administration, he was appealing to the better angels
of all of those who perhaps were disappointed by the outcome of the
election. But that is what
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we do as Americans. We pull together in the best interest of the entire
country. We get together and we fight, perhaps, and we take opposing
parties in elections. But once the election is over, after the ballots
are counted, we work together in the best interest of the American
people.
But that is not happening, and that is really not just bad for the
Senate. That is bad for the country. Our job in the Senate is to
consider these nominees and to move on them so that the President of
the United States can be surrounded by the people he has chosen to help
him lead the country. I will tell you that I have been incredibly
impressed by the quality of people he has selected. So as we begin to
consider the remaining nominees put forward by President Trump, I hope
our friends on the other side will start to realize the ramifications
of their quest to stop the Senate or to drag out these deliberations
and preclude us from doing other constructive work.
One thing I can promise you is that, thanks to the efforts of Senator
Reid in the last Congress, all of these nominees will be confirmed. Our
colleagues face the same choice they have had all along. They can
either work with us to help get these advisers vetted and then
confirmed, or they can make it painful for all of us for no good reason
and reveal to the country just how ineffective they truly are when it
comes to trying to obstruct this confirmation process.
My hope is that they will decide to course-correct and determine for
the good of the entire country that the right thing to do is to move
forward on these nominees. We were able to take up the VA Secretary and
the Administrator of the SBA, basically by consent, by agreement,
without having to grind through this lengthy process that we are having
to do on the Mulvaney and the Pruitt nominations, just to get those
done before Saturday. It is not necessary, and it is not going to
change the outcome.
Mr. President, we are also going to take up an important
congressional resolution of disapproval. The rule in question allows
the Social Security Administration to report folks who may need help
managing their money to the National Instant Criminal Background Check
System, also known as NICS.
This is just another chapter in the same story that we heard last
year when we successfully pushed back on the Veterans' Administration
for trying to do the same thing--bureaucrats unilaterally taking away
people's constitutional rights without even notifying them of the
reason, much less without giving them an opportunity for a due process
hearing. Well, this isn't a small matter. We have to make sure that the
bureaucracies can't continue to infringe on fundamental rights
guaranteed to all Americans. Now we have a chance to repeal this
unconstitutional rule and to protect those just trying to receive the
Social Security benefits they have earned.
I look forward to doing away with this particularly noxious rule
soon, this week.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Calling for a Special Counsel
Mr. BLUMENTHAL. Mr. President, I am here principally to speak about
the NICS Social Security Act, Congressional Review Act resolution that
is before our Chamber, but events of the last 24 hours really raise
before us the urgent and unavoidable issue of needing an investigation
into the recent activities of Michael Flynn. He resigned as the
National Security Advisor last night after revelations that he misled
Vice President Mike Pence and other top White House officials. He may
have misled the President and others in the White House, but there are
also very serious questions about who knew what when. These classic
what did they know and when did they know it questions must be answered
by an independent counsel or commission, and the reason it must be
independent is the same very profoundly important reason that I gave to
then-Nominee Jeff Sessions, now Attorney General.
The Attorney General must appoint a special counsel in cases where
there is reason to question his complete impartiality and objectivity;
the reality as well as the appearance mandate here that there be an
independent investigation by a special counsel.
Only a special counsel, independent of the Attorney General and of
the White House, can ask with penetrating, aggressive, unflinching
analysis whether the President knew before Michael Flynn made those
phone calls to the Russian Ambassador and other phone calls to other
foreign powers what the subjects of the conversations were, even
whether they were going to be made, and only an independent counsel can
know, with complete credibility and being regarded that way by the
public, as to what happened and who knew what happened and when they
knew.
This issue is about more than just a phone call to the Russian
Ambassador. It is about the integrity and honesty of public officials,
about the protections we give to our intelligence, and about the
independence of our justice system.
I certainly have respect for the Office of Attorney General, but Jeff
Sessions was deeply involved in President Trump's campaign and in the
Presidential transition. I expressed to him in the hearing on his
nomination that he would have to distance himself from an investigation
of exactly these issues to maintain impartiality and objectivity in
that investigation. So I will write to him today, and the letter will
be made public shortly, asking for an independent counsel, a special
investigator who can produce the information that is necessary for the
public to be assured that there has been an inquiry that is impartial,
objective, comprehensive, and thorough. It has to be unflinching and
unstinting, and it should be done as soon as possible.
Mr. President, I want to address the issue that is before us on the
floor relating to the Congressional Review Act resolution that we will
vote on shortly and in my view that will undermine existing law if it
is passed. Too many times in recent years we have had the terrible
responsibility of bearing witness to the trauma and grief that follow
gun violence. We see it in our streets every day, not just in Sandy
Hook, which every day weighs on our minds and thoughts and hearts in
Connecticut but the more than 30,000 deaths every year and countless
injures all across the country in big and small towns, the streets of
Hartford as well as rural and suburban communities.
I am far from the only one in this Chamber who has borne witness to
that trauma and grief. Gun violence has claimed too many lives in too
many places, through mass shootings in movie theaters as well as the
constant drumbeat of shootings that never make the headlines. Our
constituents count on us to make them safe. That is one of the
fundamental responsibilities of our government. And by overwhelming
majorities, including majorities of Republicans and of gun owners, they
support commonsense steps to keep guns out of the hands of dangerous
people. In failing to move forward with legislation that would advance
those goals, Congress has been complicit in this ongoing epidemic. It
is truly a public health crisis. If more than 30,000 people died every
year from disease or other kinds of communicable illnesses, there would
be a call for drastic action.
This kind of public health crisis must be met with strong steps. When
many of us in this body who believe that Congress must now take action
to stem the scourge of gun violence hear one refrain from our
colleagues--``enforce the law; enforce the law that already exists''--
we must heed that cry.
Enforcing the law that already exists is exactly what this regulation
entails. So we must be ready to move forward. Yet, as my friend and
colleague Senator Murphy noted earlier, the Congressional Review Act
resolution we are about to vote on will not only fail to enforce
existing law, it will undermine existing law. Federal law prohibits
those who have severe mental health issues--that is to say, issues that
would prevent them from safely handling a gun, from possessing a gun.
Federal law also requires agencies that have information indicating
that people are disqualified from gun possession to share that
information with the NICS background check system. Under this
regulation, the Social Security Administration has proposed to do
[[Page S1151]]
exactly that. Pursuant to the 2007 NICS Improvement Amendments Act--a
law passed in the wake of the horrific Virginia Tech shooting to
address significant loopholes in the background check system--the
Social Security Administration will submit records to NICS for Social
Security recipients who meet a specific set of carefully defined
criteria. The regulation will apply only to a subset of Social Security
disability recipients. It does not apply to those who are receiving
Social Security retirement benefits. It applies only to those
disability recipients who have been found, based on the Social Security
Administration's established criteria, to be severely impaired due to a
mental disability and who are therefore unable to perform substantial
work or manage their own disability benefits.
Repealing this regulation could lead to great harm, exacerbating
loopholes and failings in the background check system that erode public
safety.
I have a letter from the United States Conference of Mayors, which
represents city leaders from across our country. It says that ``due to
loopholes in current law, too many mass murderers are still able to too
easily obtain guns. This includes the individual responsible for
killing 32 people and injuring 17 others at Virginia Tech in 2007 that
led to the enactment of the NICS Improvement Amendments Act. These
killings must stop and this rule, as implemented last year, will help
to do that.''
I ask unanimous consent to have printed in the Record a letter from
the United States Conference of Mayors, as well as a letter from the
National League of Cities.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The United States Conference
of Mayors,
February 9, 2017.
Dear Senator: I write on behalf of the nation's Mayors to
urge you to strongly oppose Senate Joint Resolution 14 (S.J.
Res. 14), a bill to revoke a rule finalized last year by the
Social Security Administration (SSA), which strengthens our
nation's background check system for gun purchases by adding
the names of people who are severely incapacitated by their
condition and unable to manage their own finances.
The rule implements existing law, which required the SSA to
send the names of those identified as prohibited people to
the National Instant Background Check System (NICS). This
rule finally brings SSA in compliance with the NICS
Improvement Amendments Act (NIAA), a law that Congress passed
on a bipartisan basis and President Bush signed into law in
2007. It also is consistent with ATF's direction for
complying with the law.
The rule has a limited scope but is critically important to
the fabric of our nation's background check system. Under the
rule, people who receive benefits from the Social Security
Administration due to a severe ``mental impairment'' and
require a fiduciary representative to manage their benefits
would be notified and reported to the FBI's NICS. The rule
affects anyone 18 and older who qualifies for disability
because of a primary designation of ``mental impairment''
that prevents the person from working and who must have a
``representative payee'' for handling his or her finances.
This includes people who have been certified to be afflicted
with severe mental health disorders, such as schizophrenia
and other psychotic disorders, personality disorders,
intellectual disabilities, anxiety-related disorders,
substance addiction disorders and autistic disorders. These
individuals have the right to appeal and a clear process for
doing so.
We all know that it is due to loopholes in current law that
too many mass murderers are still able to too easily obtain
guns. This includes the individual responsible for killing 32
people and injuring 17 others at Virginia Tech in 2007 that
led to enactment of the NIAA. These killings must stop and
this rule, as implemented last year, will help to do that.
We urge you to help stop the killing and oppose S.J. Res.
14 or any other efforts to undermine or otherwise compromise
the national Brady background check system that has stopped
over 3 million prohibited purchasers from acquiring guns
since its enactment.
Thank you for anticipated time and consideration of this
critical matter.
Sincerely,
Tom Cochran,
CEO and Executive Director.
____
National League of Cities,
February 14, 2017.
Dear Senator: On behalf of the 19,000 cities and towns
represented by the National League of Cities, I write to
express strong opposition to Senate Joint Resolution 14 (S.J.
Res. 14) that will revoke a commonsense rule finalized last
year by the Social Security Administration (SSA). The rule
finally brings the SSA in compliance with the NICS
Improvement Amendments Act of 2007 (NIAA), a law that
Congress passed on a bipartisan basis and President Bush
signed into law in 2007. The law requires SSA to send the
names of mentally ill people, who have been determined to be
a danger to themselves or others by a physician, to the gun
purchase background check system. It is troubling that Senate
is now considering S.J. Res. 14, which threatens to undermine
this reasonable, bipartisan legislation that is making
cities, and police officers, more safe.
The rule is limited in scope and critically important to
the fabric of our nation's background check system. Under the
rule, people who receive benefits from the Social Security
Administration due to a severe ``mental impairment'' and
require a fiduciary representative to manage their benefits
would be notified and reported to the FBI's NICS. The rule
affects anyone 18 and older who qualifies for disability
because of a primary designation of ``mental impairment''
that prevents the person from working and who must have a
``representative payee'' for handling his or her finances.
This includes people who have been certified to be afflicted
with severe mental health disorders, such as schizophrenia
and other psychotic disorders, personality disorders,
intellectual disabilities, anxiety-related disorders,
substance addiction disorders and autistic disorders.
Loopholes in the NICS law have allowed people who are
clearly a danger to themselves or others to obtain guns. This
includes the individuals responsible for killing 32 people
and injuring 17 others at Virginia Tech in 2007; killing six
people and injuring 13 others, including Congresswoman
Gabrielle Giffords in Tucson in 2011; killing 12 people and
injuring 70 others in Aurora in 2012; and killing 26 people,
including 20 children in Newtown in 2012. These killings must
stop and this rule, as implemented last year, will help to do
that.
We urge you to oppose S.J. Res. 14 or any other efforts to
undermine or otherwise compromise the national Brady
background check system that has stopped over 3 million
prohibited purchasers from acquiring guns since its
enactment.
Sincerely,
Clarence E. Anthony,
CEO and Executive Direct.
Mr. BLUMENTHAL. It is critical to note that neither I nor any
proponents of the Social Security Administration's rule believe that
all or most or even a significant percentage of those suffering from
mental health issues are dangerous--far from it. The overwhelming
majority of people who confront mental health issues are peaceful and
law-abiding citizens who seek only the treatment that should be
everybody's right. In fact, I have been a strong advocate over many
years of mental health parity, beginning when I was attorney general in
the State of Connecticut. The very first Federal law on this issue that
was passed was modeled in many ways after the State law that I
championed. I was proud to support the passage of a bill last year to
provide more resources to those seeking treatment, and I hope that it
moves this country toward providing everyone with the care they need.
Mental health issues should be no cause for fear, no reason for
stigma, no excuse for shame. Those who have come forward and been open
about the treatment they have sought, in fact, have done themselves and
their communities and country a great service. If I thought SSA
regulations unfairly targeted people with mental illness or that it
advanced the perception that they are inherently dangerous, I would
oppose it with every fiber of my being, but that is not the regulation
we have here.
As Senator Durbin said this morning and my colleague Senator Murphy
reiterated, this rule is not one loosely applied to anyone who has some
trouble balancing a checkbook; it applies only to those disability
recipients with a serious and debilitating mental health issue. That is
estimated to be about 75,000 people nationwide out of approximately 10
million Americans who suffer from a serious mental illness. Everyone
who suffers from mental illness should have a right to treatment, but
not all should have a gun. It is very unlikely that people who meet
these criteria will be able to safely handle a gun or to safely store
it in their home and prevent its misuse by themselves or by others.
It is possible that SSA's initial determination will be wrong. That
is why crucially--please understand--crucially the regulation also
provides due process. In fact, these due process protections are
necessary when a constitutional right is at stake. This right, the
Second Amendment right, must be respected as the law of the land. The
regulation entitles those who are affected
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by it to advanced notice. When going through the process to appoint
someone else to handle their benefits, they are told that they will
forfeit their firearms right. They are given that notice, and they are
given due process. If they believe this is inappropriate or
unnecessary, the regulation gives them that process to appeal. It is
one that allows SSA to grant relief upon a determination that the
beneficiary will not be ``dangerous to public safety,'' a term that has
meaning.
SSA is also required to notify the NICS background check system if
the name should be removed, whether it was submitted in error or
because a beneficiary has recovered from the condition or because they
were granted relief through the appeals process. Those are rights with
real remedies, with due process, with fairness.
If I thought this regulation failed to provide adequate process that
every individual is due, regardless of how much I support its goal, I
would oppose it with, again, every fiber of my being because it should
be and it is the law of the land.
Of course there may be ways that this regulation, like any
regulation, could be improved if the criteria could be better targeted
or if the due process protections could be made stronger or if the
administration could be made more efficient. We should not hesitate to
make those improvements. I would welcome suggestions for enhancements,
but the methods chosen by my colleagues to attack this regulation--the
Congressional Review Act--prevent any and all of those improvements.
Severely limiting the time for debate denies us adequate
consideration. Much worse, it is a blunt-force instrument that will
prevent the Social Security Administration from issuing any
``substantially similar'' regulation in the future. So the passage of
this resolution will prevent the SSA from complying with the legal
requirement for submitting legal records for a background check in the
future. It will hamstring this agency and prevent it from fulfilling
its obligation to public safety--that is regardless of whether new
information comes to light or whether it would be possible to devise a
better method of submitting these records.
In the words of the well-known and respected group Americans for
Responsible Solutions, using the CRA to undo this rule would ``not only
allow guns to be placed into the hands of individuals determined to be
legally incapable of using them safely, but it also creates an
irresponsible, irreversible precedent.''
As I have always said, I will work with my colleagues on any good-
faith steps to stem the tide of gun violence in this country, and I
would be more than happy--in fact, I am eager--to work with them to fix
flaws they see in this regulation. We need to come together to improve
the integrity and efficiency of the national background check system
and keep guns out of the hands of people who cannot safely handle them.
People who are dangerous to themselves or others--it may be a very
small number, but they can do great tragic damage. The resolution we
will vote on shortly accomplishes neither of these goals. It does
nothing to answer my constituents who ask me time and time again why
Congress does nothing to confront the epidemic of gun violence in this
country. It would create an irresponsible, irreversible precedent. More
important than the precedent is the consequence in real lives of the
death and injury that could result. Those deaths and injuries are truly
irreversible and irresponsible, and we can help to stop them by taking
the right stand on this resolution.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. MARKEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Hoeven). Without objection, it is so
ordered.
Mr. MARKEY. Mr. President, it is Valentine's Day, and Senate
Republicans and President Trump want to deliver a love letter to their
sweetheart, the National Rifle Association. To the Republicans and
President Trump, nothing says ``I love you'' like ``let's weaken
background checks on gun sales'' because that is exactly the issue
before us today.
Today, Republicans in Congress and President Trump want to gut a
commonsense safety measure that would help keep guns out of the hands
of people who should not have them. After the tragedy in Newtown, CT,
the Obama administration undertook a comprehensive review of Federal
law to identify ``potentially dangerous individuals'' who should not be
trusted with firearms.
The Social Security Administration was required to identify and
report to the National Instant Criminal Background Check System those
people who received Social Security benefits due to severe mental
impairment and who require a fiduciary representative to manage those
benefits.
That is a sensible policy. If you can't manage your disability
benefits because of a mental impairment, you probably shouldn't be
trying to manage a gun. Indeed, current law prohibits individuals from
purchasing a firearm if a court, a board, a commission, or other lawful
authority has determined that a mental health issue makes them a danger
to themselves or to others or that they lack the mental capacity to
contract or manage their own affairs.
The purpose of the rule is, simply, to include in the Federal
background check system information from the Social Security
Administration that it already has about beneficiaries whom current law
already prohibits from possessing a firearm. Even this fair,
reasonable, and commonsense limitation on gun purchasing is too much
for the NRA and its Republican congressional allies. So they have
turned, this afternoon, to the Congressional Review Act to roll back
this rule. By doing so, they would block the Social Security
Administration from issuing a similar rule on this subject in the
future. This is shortsighted on the one hand and very dangerous on the
other for a long, long time in our country because it is these
loopholes in the background check system that have already allowed
people to obtain guns, despite being judged a danger to themselves or
to others, especially family members.
Loopholes in the system allowed the Virginia Tech, Tucson, Aurora,
and Newtown shooters to obtain guns. We need to close loopholes like
the ones that allow people who are mentally impaired from buying guns.
Repealing this rule only keeps the loophole open.
Recent polls show that 92 percent of Americans support background
checks for all gun buyers--including 87 percent of Republicans in our
country support background checks on who is, in fact, purchasing a gun
in our country--but not the National Rifle Association. The National
Rifle Association sent an action alert to its membership on this
current attempt to repeal the background check rule stating: ``The
first pro-gun legislative act of the Trump era and Congress is on the
verge of success, but it needs your help to get it over the line.''
That is all you need to know.
So on this Valentine's Day, the U.S. Senate should show some real
love and compassion. Let us open our hearts to the American people who
overwhelmingly are demanding commonsense gun control efforts like the
one this rule puts in place. Let us defeat this ill-advised effort to
roll back this rule which keeps guns out of the hands of people who
should not have them.
This is the job of the Congress. This is the carnage we see in
America. It is the indiscriminate issuing of licenses for guns to
people who have not gone through the background checks that ensure they
are qualified for the handling of a weapon within our society. Everyone
else can get the weapon. Everyone else who goes through the check gets
the weapon but not people who should not have them.
So this is a big moment here. It, unfortunately, gives an insight
into what the Republican agenda is going to be this year. It is a
radical agenda. It is an agenda which says to the National Rifle
Association: We are going to pass your agenda, no matter how radical,
out here on the floor of the Senate. What the American people are
saying is they want the NRA to stand for ``not relevant anymore'' in
American politics. That is what they want it to say, especially with
the polling so overwhelmingly bipartisan, Democrats and Republicans, in
terms of commonsense
[[Page S1153]]
background checks that are in the law to protect innocent families in
our country.
All I can say is this isn't anything that is radical, this
regulation. It is something that is common sense. It is something that
protects American families, and I urge strongly that the U.S. Senate
reject the removal of this regulation from the statutes of our country.
Mr. President, I yield back the remainder of my time.
Mr. CRAPO. Mr. President, today I wish to urge support for H.J. Res.
40. The Second Amendment to our U.S. Constitution reads, ``A well
regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.''
The fact that our Nation's Founding Father's penned this constitutional
right to follow another central freedom--the constitutional right to
free speech--speaks to the importance of this basic right.
H.J. Res. 40, the resolution currently under consideration, would
protect Social Security beneficiaries from having their constitutional
rights arbitrarily revoked by the Social Security Administration. As a
cosponsor of the Senate companion resolution introduced by Senator
Grassley, I support this critically important effort. The resolution
would halt a rule issued by the Social Security Administration in the
waning days of the outgoing Obama administration.
The previous administration, I might add, continuously sought to take
away the Second Amendment rights of Americans through Executive orders
and rulemaking. This is yet another example of an unjust leftover of
that effort that needs to be corrected. In December 2016, under the
direction of the Executive branch, the Social Security Administration
issued a final rule to gather and submit information to the National
Instant Criminal Background Check System, NICS, on individuals who are
determined to be what NICS refers to as ``mentally deficient.'' In this
case, a person can be reported to NICS simply for using a
representative payee in managing their benefits.
It is not uncommon for the Social Security Administration to appoint
someone to act as representative payee for a beneficiary who may need
assistance to manage their benefits. The use of a representative payee
is not indicative of mental deficiency. In fact, over 8 million
beneficiaries need help managing their benefits, according to the
Social Security Administration. Statute requires that, for an
individual to be deemed ``mentally deficient,'' a court, board, or
other lawful authority must find that the person is a danger to
themselves or others or is unable to contract or manage their own
affairs.
Under the rule that went into effect last week, SSA will be required
to report individuals who have been appointed a representative payee to
NICS. The Social Security Administration is not a court of law, and SSA
officers are not a ``lawful authority.'' Equally alarming is the lack
of an established appeals process to enable the removal of names from
the system once entered. The Administration's lack of regard for due
process is unacceptable.
We must reject the Obama administration's improper assumption that
individuals are a danger to themselves or society because they
participate in SSA's representative payee system. A January 2016 White
House fact sheet estimated that SSA's rule would add 75,000
beneficiaries to the NICS list each year. The number of law-abiding
individuals who will be added to the NICS list will likely be much
higher. Thousands, if not millions, of Americans stand to lose their
Second Amendment rights.
Over 91,000 comments were submitted to the Social Security
Administration following the publication of the proposed NICS rule. I,
along with several of my colleagues, wrote the Social Security
Administration on four occasions to express our concerns about the
proposed rule. Our concerns, and the concerns of 91,000 Americans, were
clearly not factored into the rulemaking process.
Old age does not make someone a threat to society, and having a
representative payee is not grounds to revoke constitutional rights.
Millions of seniors are at risk of having their Second Amendment rights
arbitrarily revoked on behalf of an Executive that is no longer in
office. This is a brazen attack on our constitutional right to keep and
bear arms. Please join me in stopping this outrageous rule that was
finalized in the waning weeks of a lameduck administration. Join me in
protecting the constitutional rights of law-abiding citizens.
The PRESIDING OFFICER (Mr. Lankford). Who yields time?
If no one yields time, time will be charged equally to both sides.
The Senator from Iowa.
Mr. GRASSLEY. Mr. President, we have a very bad regulation that has
been put out by the Social Security Administration that needs to be
obliterated, so we are using a process called the Congressional Review
Act to show Congress's displeasure with the Social Security
Administration and to get this regulation off the books.
Now, there has been a lot of talk about how the Congressional Review
Act is the wrong vehicle to repeal the disastrous regulation. So I want
to quote a contrary opinion from the National Coalition for Mental
Health Recovery saying this:
The CRA--
Meaning the Congressional Review Act--
is a powerful mechanism for controlling regulatory overreach,
and NCMHR 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, NCMHR feels that
utilizing the CRA to repeal the final rule is not only
warranted, but necessary.
I would add to it that it is obviously necessary.
I ask unanimous consent that the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Coalition for
Mental Health Recovery,
Washington, DC, January 29, 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:
I write on behalf of the National Coalition for Mental Health
Recovery (NCMHR) 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, NCMHR submitted comments to SSA on the proposed
rule. In our comments, we cautioned against implementation of
the proposed rule because there is no causal connection
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, NCMHR recommends that Congress consider
utilizing the Congressional Review Act (CRA) to repeal this
rule.
NCMHR is a nonpartisan, is nonpartisan nonprofit 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. NCMHR believes that SSA's final rule falls far
short of meeting these criteria.
The CRA is a powerful mechanism for controlling regulatory
overreach, and NCMHR 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
[[Page S1154]]
essential mission of an agency that millions of people with
and without disabilities rely upon to meet their basic needs.
Therefore, in this instance, NCMHR feels that utilizing the
CRA to repeal the final rule is not only warranted, but
necessary.
Sincerely,
Daniel B. Fisher, MD, PhD,
Chair NCMHR.
Mr. GRASSLEY. Mr. President, there has also been talk about how
supposedly dangerous it will be if this Social Security regulation is
terminated. I don't see how that can possibly be realistic if the
Social Security Administration doesn't even determine whether a person
is dangerous in the first place--and ``dangerous'' meaning in regard to
whether or not they ought to be able to make use of the constitutional
right of the Second Amendment to own and possess firearms.
Others in this debate continue to mention that mentally ill people
will be able to acquire firearms. Now this is very important. The
Social Security Administration does not determine a person to be
mentally ill prior to reporting their names to the gun ban list, and
being on the list denies you your constitutional rights. The agency has
confirmed this in writing to my office:
Yes, you are correct. The Social Security Administration
does not diagnose individuals as mentally ill.
Supporters of this gun ban failed to address why individuals are not
provided formal due process before reporting their name to the list.
Supporters have also failed to talk about how the regulation is
inconsistent with the statutory standard of ``mental defective.''
An existing statute requires agencies to report individuals to the
gun ban list who are ineligible under current law for possessing
firearms. That requirement does not require the existence of any
regulation to be effective. So it is plainly wrong to claim, as was
said this very day by the people opposed to what we are doing, that if
the regulation is disapproved, agencies will no longer have to report
prohibited persons. The reverse, in fact, is true.
The regulation usurps unlawful authority to report people to the gun
ban list who are not barred from owning guns under current law and that
the agency is prohibited from reporting under current law, especially
without the adjudication that is required under current law.
Opponents of the regulation base their opposition on the language of
the regulation, existing law, and the Constitution, citing the
Constitution to say that you don't have a constitutional right to own
arms under the Second Amendment, which is contrary to two recent
Supreme Court decisions that verify that that applies to an individual.
That is why the regulation's supporters must resort to arguments that
lack legal and factual foundation.
Supporters of this gun ban also fail to address how overly broad this
regulation is, as written. It will capture innocent Americans, denying
innocent Americans their constitutional rights. Sadly, then, we know
how this will play out if this regulation were allowed to go forward
because we have the example of the Department of Veterans Affairs
reporting hundreds of thousands of veterans to the National Instant
Criminal Background Check System without adequate due process. That is
the same system that Social Security was going to report people to.
Veterans were reported just because some lonely bureaucrat wanted to
report them, with no opportunity to first have a neutral authority hold
a hearing, finding that that individual is dangerous or actually has a
dangerous condition. These were veterans who needed financial help
managing their benefit payments.
It is common sense that needing help with your finances should not
mean that you have surrendered a fundamental constitutional right of
self-defense that you have under the Second Amendment.
Just like the Social Security Administration, the VA does not
determine whether a veteran is dangerous before reporting his name to
the gun ban list and denying that veteran his Second Amendment
constitutional rights to own and possess firearms. The VA regulation is
eerily similar to what the Social Security Administration wants to do.
On May 17, 2016, Senator Durbin and I debated my amendment that would
require the Department of Veterans Affairs to first find veterans to be
a danger before reporting their names to the gun ban list. Now that is
common sense; isn't it? You ought to find out if they are really
dangerous before they are denied a constitutional right.
During the course of that debate, Senator Durbin admitted that the
list was broader than it should have been. He said:
I do not dispute what the Senator from Iowa suggested, that
some of these veterans may be suffering from a mental illness
not serious enough to disqualify them from owning a firearm,
but certainly many of them do.
Senator Durbin also said:
Let me just concede at the outset, reporting 174,000 names
goes too far, but eliminating--
As my legislation proposed to do--
174,000 names goes too far.
For the record, though, it wasn't really 174,000 names going too far.
It was actually 260,381 names that the VA sent to the gun ban list. Now
that happens to be 98.8 percent of all names that are in the alleged
``mental defective'' category.
The Department of Veterans Affairs reported more names by far than
any other agency without sufficient justification. Senator Durbin's
staff and mine have met over these issues since that debate, and I
appreciate and thank him for that outreach.
Now we have the Social Security Administration problem and, through
the Congressional Review Act, we can do something about it. We don't
have to pass a separate piece of legislation, like we are going to have
to do to straighten out the VA. So the Social Security Administration
is about to make the same mistake as the VA unless we stop it right
here and right now.
If this regulation is not repealed, the agency has informed my staff
that approximately 15,000 to 75,000 beneficiaries of Social Security
may be reported annually, denying them their constitutional right to
bear, possess, and own firearms. That figure of 15,000 or even more
so--the higher figure of 75,000--will add up very quickly.
In my earlier speech today on this topic, I made clear that the
agency regulation is defective in many ways; namely, the regulation
does not require the agency to find a person dangerous or mentally ill.
The regulation provides no formal hearing before a person is reported
to the gun ban list.
Supporters have also said that repeal of this regulation will
interfere with enforcement of gun prohibition laws. Such a position is
without any merit--denying people constitutional due process.
As I made clear in my earlier speech, important Federal gun laws are
still on the books, even if the agency rule is repealed. This is so
because this new regulation is actually inconsistent with those
existing Federal gun laws. For example, individuals who have been
determined to be dangerous or mentally ill will be prohibited, as will
those convicted of a felony or a misdemeanor crime of domestic
violence, and the same for those involuntarily committed to mental
institutions.
While discussing the faults and defects of the rule, I think it is
important to highlight that the issues I have pointed out are also the
solution to the problem. If the supporters of the agency rule want the
Social Security Administration to report individuals to the gun ban
list, changes need to be made. Individuals must first be determined by
a neutral authority after a fair hearing meeting the requirements of
the U.S. Constitution. If they are dangerous and have a dangerous
mental illness, then they could constitutionally be denied that right.
Constitutional due process is a very important part of that process.
If we do not act, the agency will erroneously report tens of
thousands of people per year to the gun ban list, and not one of them
will have been adjudicated to be dangerous after a hearing with due
process, not one of them will have been adjudicated to be mentally ill
after a hearing with due process, and all of them will have had the
government's burden shifted to them to prove they are not dangerous in
order to get their name off the gun ban list. It is common sense, isn't
it? It ought to be that you are innocent until proven guilty. If you
can't have a gun, common sense tells me you ought not have
[[Page S1155]]
to prove that you can have a gun to the government; the government has
to prove that you should not have a gun.
Any way you look at it, the regulatory scheme is patently unfair. If
the government wants to regulate firearms, it needs to produce a
clearly defined regulation that is very narrowly tailored to identify
individuals who are actually dangerous and who actually have a
dangerous mental illness. The government must also afford
constitutional due process.
What we are dealing with here is a fundamental constitutional right
backed up by two Supreme Court decisions in the last 10 years. With
that type of constitutional status, the Second Amendment requires
greater effort and greater precision from the government in order to
fairly regulate how the American people exercise that constitutional
right. This regulation simply doesn't meet that standard.
I urge my colleagues to support the resolution of disapproval.
Mr. President, I don't know whether anybody else is coming to seek
the floor. If I am infringing upon somebody else's time, I will yield
the floor, but in the meantime, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Neil Gorsuch
Mr. GRASSLEY. Mr. President, I rise today to discuss some criticism I
have heard about the nominee to fill the seat on the Supreme Court.
That nominee is Neil Gorsuch.
My colleague, the minority leader, met with the nominee last week.
Afterward, he told reporters that he had ``serious, serious concerns''
about the judge. Well, I guess I shouldn't be surprised--after all, it
seems the minority leader had concerns about the nominee even before
the nominee was announced.
Before Judge Gorsuch was announced, the minority leader made clear
that any nominee must be ``mainstream.'' But it became clear
immediately that this nominee is widely regarded as a mainstream judge
with impeccable credentials. Liberal law professor Laurence Tribe says
that ``he's a brilliant, terrific guy who would do the Court's work
with distinction.'' Alan Dershowitz, who certainly is no conservative,
says that Judge Gorsuch will be ``hard to oppose on the merits.'' Even
President Obama's Acting Solicitor General, Neal Katyal, said Judge
Gorsuch ``would help to restore confidence in the rule of law.'' The
chorus goes on.
Apparently, because the nominee is so obviously mainstream, the
benchmark for my colleague's concerns keeps changing. The minority
leader has conveniently developed a new test. Now he says the benchmark
is independence: ``The bar for the Supreme Court nominee to prove that
they can be independent, has never, never been higher.''
Well, fortunately for the minority leader, Judge Gorsuch passes that
bar with flying colors, just like he passed the ``mainstream'' test
with flying colors. The nominee's record makes clear that he is an
independent and fairminded judge who is deeply committed to the
separation of powers.
Here is just one example from his many opinions on this point. Just
last year, Judge Gorsuch had to decide a case about the authority of
the Board of Immigration Appeals, or the BIA, which answers to the
Attorney General. The BIA wanted to change the Attorney General's power
to waive immigration requirements for illegal immigrants, and it wanted
the new rules to apply to undocumented immigrants whose waiver
applications were already in the works. The nominee said no to this
executive agency. To be clear, Judge Gorsuch was asked to decide
whether an executive agency in charge of immigration laws could change
the law on a whim in a way that many believed was unfair to immigrants
who had already sought waivers. He said no.
With due respect to my friend the minority leader, there is no doubt
that Judge Gorsuch would say no to this or any other part of the
executive branch that oversteps its bounds.
Here is what the nominee wrote about the separation of powers and
executive branch overreach. For him to defer to the executive agency in
that case would be ``more than a little difficult to square with the
Constitution of the framers' design.'' That is because doing so would
allow agency bureaucracy to ``swallow huge amounts of core judicial and
legislative power,'' which the Constitution assigns to separate
branches of government. So the nominee was concerned about the
separation of powers. He was concerned about people whose liberties
might be impaired, and because of those concerns, he said no to the
immigration agency's policy whim of the day.
Judge Michael McConnell, a former colleague of Judge Gorsuch on the
Tenth Circuit, makes the same observation about this case. He says the
scope of executive power arguably ``will be the most common Supreme
Court issue of the coming decade.'' He says the nominee analyzes that
issue in a way that is faithful to the Constitution and to the
independence of the judiciary, and he points to the nominee's thinking
on this question. Judge Gorsuch wrote:
What would happen . . . if the political majorities who run
the legislative and executive branches could decide cases and
controversies over past facts? They might be tempted to bend
existing laws, to reinterpret them . . . [this would] risk
the possibility that unpopular groups might be singled out
for this sort of mistreatment--and [would] rais[e] along the
way, too, grave due process, fair notice, and equal
protection problems. . . . It was to avoid dangers like
these, dangers the founders had studied and seen realized in
their own time, that they pursued the separation of powers.
That is the writing of an independent judge who believes in the
separation of powers.
You know, there is a bit of irony to some of the criticism I have
heard leveled against Judge Gorsuch. On the one hand, I have heard that
he will have to be independent and that he won't rubberstamp the
President's agenda. On the other hand, I have heard that he will be way
too tough on the executive branch as it fulfills the President's
agenda. It is quite obvious that, common sense tells us as we look at
those two arguments that we can't have it both ways.
Judge Gorsuch has shown he is faithful to the separation of powers in
the Constitution. That means he will be an independent judge who will
say no when the other branches of government overreach.
You don't need to take my word for it. Listen to President Obama's
Acting Solicitor General, Neal Katyal. He is no fan of the President's
Executive order, but he says that Judge Gorsuch ``will not compromise
principle to favor the President who appointed him.'' Instead, the
Solicitor General said the nominee ``would help to restore confidence
in the rule of law.''
Judge Gorsuch's record and reputation leave no room to doubt that he
is a mainstream, independent judge. He will apply the law fairly, and
he won't be afraid to say no when the Constitution requires it.
Every time my colleague the minority leader has set out a standard
for filling this Supreme Court seat, this judge has met it. He is
mainstream. He is independent. And when my colleague chooses a new
standard, I bet the nominee will also meet that new standard.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CASEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Johnson). Without objection, it is so
ordered.
Mr. CASEY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Remembering Al Boscov
Mr. CASEY. Mr. President, I rise this afternoon to pay tribute to a
Pennsylvanian who passed away this past week, Al Boscov.
Al was known not only in Pennsylvania, but beyond, as the owner of
Boscov's Department Stores, a very, very successful retail department
store chain. I rise not just to pay tribute to his life, his work, and
his success but, most importantly, what he meant to the people of
Pennsylvania--all that he did above and beyond in addition to his great
business success.
I want to extend condolences to the Boscov family--to his wife
Eunice, their children and grandchildren, and, of course, to the people
of Reading and
[[Page S1156]]
Berks County, and, by extension, our entire Commonwealth because of
what Al meant to his community and the larger community in eastern
Pennsylvania but also all the way up to my home area of northeastern
Pennsylvania.
I live in Scranton. One of his stores was, and still is, in the
downtown business district in Scranton. So this is personal to me as
well.
Al leaves two generations who will carry on his legacy in so many
ways: his three daughters, Ruth, Ellen, and Meg, and his five
grandchildren.
Al was born on September 22, 1929. He was the youngest son of Solomon
and Ethel Boscov. He first made a name for himself as an expert
flycatcher in his father's neighborhood store at Ninth and Pike. In
those days, when he was just learning skills that would help him later
in the business world, obviously people could see a great future for
this young man.
He was a graduate of Reading Senior High School. He also graduated
with a business degree from Drexel University, where he started his
first business--a delivery service for hero sandwiches--which would
presage a great career in business.
Al received an honorary doctor of humanities degree from Albright
College in Reading, a doctor of arts and letters degree from King's
College in Wilkes-Barre, PA, and, finally, a doctor of public service
from Kutztown University. So three distinguished Pennsylvania
universities paid tribute to him by way of a doctorate degree.
He served in the Navy during the Korean war. After service, Al
returned home to join the family business and, in 1962, opened Boscov's
first full-service department store, Boscov's West, in suburban
Reading. Since that time, the Boscov chain has become the largest
family-owned department store chain in the Nation, with 45 stores in 7
States, employing some 7,500 coworkers.
Here is what Al said about his store, which shows the attitude he
conveyed as a businessperson and a member of the community. When he
talked about people visiting his stores, he said:
We like to give people a reason for coming to Boscov's even
when they don't want to buy anything. They enjoy themselves
and hopefully we make a friend.
What a great attitude for any business leader, especially one who
opened his business in the town in which he grew up.
Al's family remains especially proud of his continual efforts to
fight prejudice and promote cultural understanding. For example, at
times of growing racial tension in Reading years ago, Al used his three
Reading stores to present a heritage festival, providing the
opportunity for the African-American community to share various aspects
of Black culture, whether food, art, writing, or entertainment.
Similarly, Al Boscov presented a Puerto Rican heritage festival in
both his Reading and Lebanon stores--Lebanon being in the middle of
Pennsylvania--again, bringing together the Hispanic, White, and Black
communities with a theme of ``Knowing is Understanding.'' His belief
that we all must take time to know each other and to take care of each
other remains as one of the most important and, his family hopes,
lasting legacies.
As the chairman of Boscov's, Al set new standards for successful
retailing, community involvement, and civic duty. He founded and led
the nonprofit Our City Reading, Inc., to assist Reading in restoring
abandoned homes and to bring about a resurgence in downtown Reading.
Under his leadership, more than 600 families had the opportunity to own
and live in a new home. He led the efforts to equip a senior citizens
center in downtown Reading. The Horizon Center provides seniors with
hot meals and activities. I could go on and on, but I will not this
afternoon.
It is clear from his life that he was very successful. It is also
clear from his life that he gave and gave, not only to his home
community of Reading, but well beyond. I know from my own personal
experience what he did for northeastern Pennsylvania, for Lackawanna
County, Luzerne County, and a lot of other counties as well.
So we are thinking of Al Boscov today, remembering his generosity,
remembering his legacy, and remembering the many contributions he made
to the Commonwealth of Pennsylvania.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The majority leader.
Order of Procedure
Mr. McCONNELL. Mr. President, I ask unanimous consent that following
leader remarks on Wednesday, February 15, there be 10 minutes of debate
remaining, equally divided, on H.J. Res. 40; that the resolution be
read a third time, and the Senate vote on passage of the joint
resolution without intervening action or debate; further, that
following disposition of H.J. Res. 40, there be 10 minutes of debate,
equally divided, prior to a vote on the motion to invoke cloture on
Executive Calendar 16, Mick Mulvaney to be the Director of the Office
of Management and Budget, and if cloture is invoked, time be counted as
if invoked at 1 a.m. that day.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, there will be no more votes this
evening. We will have two votes tomorrow morning.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. TOOMEY. Mr. President, I rise to engage in a colloquy with my
colleague the senior Senator from Texas.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TOOMEY. Mr. President, I think a little background will be
helpful. The Social Security Administration has promulgated a rule
regarding when its employees should be sending names to be added to the
NICS system. The NICS system is the system by which a person, when they
are added to it, may not legally possess a firearm.
The rule has been finalized, but it has not yet gone into effect. It
is scheduled to go into effect on December 19 this year. I wish to say,
I think the rule has the right intention. Under Federal statute, the
NICS Improvement Amendments Act of 2007 stipulates that every quarter
each Federal agency must send to the Attorney General any information
it has showing that any person is disqualified from possessing a gun.
Each agency also has the responsibility to correct or update any
information it sends to the Attorney General. There is no question the
Social Security Administration has a duty to send information to the
NICS system.
The purpose of the rule is to send to NICS the names of individuals
who are dangerously mentally ill and thus are not legally entitled to a
firearm. There are some protections that are provided in this rule. For
instance, under the rule promulgated by the Social Security
Administration, a third party cannot get a gun owner declared mentally
ill without the gun owner's knowledge or consent. Under this rule, the
individual has to file a disability claim for himself or herself.
The rule provides some mechanisms for individuals to challenge their
inclusion in the NICS system if they wish to do so. There is serious
disagreement and confusion about some other very important aspects of
this rule.
For instance, I have heard from advocates for people with
disabilities. They are very concerned that the list of mental
illnesses, for instance, is to too expansive and might very well sweep
in people who have mental health issues but are not at all dangerous to
themselves or to others.
These advocates for people with disabilities have also expressed the
concern that the rule doesn't require that a medical professional
actually be involved in the determination of whether a person is
dangerously mentally ill.
These disability rights advocates raise the concern that an agency
bureaucrat without any medical expertise could potentially add someone
to the NICS system without a doctor being involved and without that
person being in any way dangerous.
These advocates also argue that there is not a sufficient process for
individuals who are wrongly denied their Second Amendment rights. For
instance, under the rule, it appears it could take years for an
individual to adjudicate this question if there was a case of mistaken
identity or they were deemed to have a mental health issue that they
challenged. It could take years for them to resolve. All that time they
would be disqualified from owning a firearm. Even if that individual
prevailed and it turned out that the Social
[[Page S1157]]
Security Administration had mistakenly put them in the NICS system,
their legal fees would still have to be incurred by the individual,
despite the fact that they had no responsibility for this.
I agree something ought to be done in this area, but I am not fully
confident this rule gets it exactly right. My preferred outcome here,
my ideal, would be for the Social Security Administration to produce a
new rule--one that takes into account these legitimate concerns that
have been raised, especially by people in the disability rights
community. I would look forward to working with the Social Security
Administration, and I could very well support such a rule, and I would
support such a rule if they addressed these things properly.
I would further say that we have time to do this. As I mentioned
earlier, while the rule has been finalized, it has not yet gone into
effect. It doesn't go into effect until December 19 of this year. We
have over 10 months to reconsider and get this right.
Some have suggested, wait a minute, we will never have a chance to
redo this if we pass the Congressional Review Act, which repeals this
rule because it will preclude the Social Security Administration from
promulgating a new version of the rule.
People say that because the Congressional Review Act states that if
we enact this resolution of disapproval ``a new rule that is
substantially the same as such a rule may not be issued.''
It is my opinion that a new rule issued by the Social Security
Administration that addresses appropriately the concerns I mentioned
would certainly not be substantially the same as the current rule. It
would be a very different rule. Since it would not be substantially the
same, it would be permissible under the Congressional Review Act for
the Social Security Administration to correct these flaws and come up
with a new rule.
I want to ask the senior Senator from Texas, the majority whip and a
member of the Senate Judiciary Committee, is it your opinion that if
subsequent to passage of the Congressional Review Act with respect to
this rule, if the Social Security Administration promulgated a new rule
that met the standards I have set forth, that in that case, the new
rule would not be substantially the same as the current rule and
therefore would not be precluded by passage of the Congressional Review
Act; is that the opinion of the Senator from Texas?
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I agree with my friend and colleague from
Pennsylvania. If the Social Security Administration were to amend the
rule to include the front-end due process and a finding of dangerous
mental illness, that would be a fundamentally different rule that is
not substantially similar.
Under the current rule, merely filing for a disability benefit on the
grounds of a condition, for example, like anxiety can trigger a
permanent deprivation of constitutional rights without any physician or
adjudicative body finding the person is dangerously mentally ill.
I certainly agree with the concerns raised by my friend and our
colleague from Pennsylvania that the rule he is describing would not be
substantially similar to the rule currently in effect and that would be
no bar to the Social Security Administration writing a substitute rule
in accordance with the views he has expressed.
There may still be a few differences between us in terms of what
exactly the rule would be, but there is no distance between us in terms
of the conclusion that a replacement rule that provides for due process
would not be substantially similar and would not be barred under the
Congressional Review Act.
Mr. TOOMEY. I thank the Senator from Texas for joining me in this
discussion. We certainly share the view about the possibility of a
future different rule, and I look forward to working with the Senator
from Texas as well as people at the Social Security Administration to
achieve that.
Mr. President, I yield the floor.
Mr. CORNYN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Rubio). Without objection, it is so
ordered.
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