[Congressional Record (Bound Edition), Volume 163 (2017), Part 2]
[Senate]
[Pages 2493-2500]
[From the U.S. 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regulation is not repealed, it will allow the agency to very unfairly 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

[[Page 2494]]

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 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

[[Page 2495]]

     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 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

[[Page 2496]]

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 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

[[Page 2497]]

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 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

[[Page 2498]]

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 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

[[Page 2499]]

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 
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

[[Page 2500]]

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 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.

                          ____________________