[Congressional Record (Bound Edition), Volume 163 (2017), Part 2]
[Senate]
[Pages 2500-2509]
[From the U.S. 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

[[Page 2501]]

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 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

[[Page 2502]]

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 
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

[[Page 2503]]

     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 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

[[Page 2504]]

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 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

[[Page 2505]]

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 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

[[Page 2506]]

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 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

[[Page 2507]]

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 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

[[Page 2508]]

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 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

[[Page 2509]]

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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