Prepared Senate Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Repealing the Social Security Administration’s Improper Rule to Report Beneficiaries to the National Instant Criminal Background Check System
February 14, 2017
Mr. President,
Today I want to speak about the bipartisan resolution of disapproval that I introduced on January 30th along with Sen. Crapo and 24 other cosponsors. This resolution now has 32 cosponsors.
It is absolutely necessary.
The resolution of disapproval is a procedure under the Congressional Review Act for repealing Executive Branch regulations.
The regulation at issue here 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 If the regulation is not repealed, it will allow the agency to unfairly deprive Social Security recipients of their Second Amendment rights.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. 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 appointing a representative payee to manage benefit payments.
This process has been in place for years to merely assign a representative payee. That’s merely someone to help a recipient with their finances who is authorized to deal with the bureaucracy on their behalf. Now it is being used to report beneficiaries to the gun ban list. And once on that list, individuals are prohibited from purchasing, owning, and possessing firearms, thus violating their Second Amendment rights. 
The regulation is flawed beyond repair. 
It results in reporting people to the gun ban list that should not be on it at all. And it deprives those people of their Constitutional rights without due process.
Under current federal law, one must first be deemed “mentally defective” before being reported to the gun ban list. However, the “mental disorders” list in this regulation is filled with vague characteristics that do not fit into the federal “mentally defective” standard.
The “disorders 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 compelling reason to regulate, and the regulation must be narrowly tailored. The disorders list is the opposite of 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 are losing their 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.
The National Council on Disability, a non-partisan and independent federal agency, has said:
“This 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.”
The Consortium for Citizens with Disabilities, a coalition of 100 national disability groups, shares the same concerns about the regulation:
“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.”
Mr. President, I’d like to enter these letters into the record.
Some of the supporters of the new gun ban have brought forth arguments to try and 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 determines a person to be mentally ill before reporting them to the gun 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 flawed process too.
The former Social Security Administration Inspector General said the following last year in testimony about assigning a representative payee:
“It’s not a scientific decision, it’s more of a personal opinion.”
The “personal opinion” of a bureaucrat CANNOT be the basis for taking away a person’s Second Amendment rights.
Further, a June 2015 internal Social Security report found significant shortcomings in the representative payee process, namely that:
“The Social Security Administration’s capability determinations were undeveloped, undocumented, or insufficiently documented.”
How can any of us be comfortable allowing our fellow citizens to be subjected to such a process?
The regulation DOES NOT require a formal hearing at any point. Federal law and other regulation require that a formal hearing takes place. 18 U.S.C. 922(d)(4) requires an “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.
And 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 afforded.
This is not only a travesty, but a travesty on the constitution as well. 
Constitutional due process is entirely non-existent because there is NO opportunity for an individual to challenge the proceeding against them.
The American Civil Liberties Union has echoed the same concerns:
“The rule includes no meaningful due process protections prior to the Social Security Administration’s transmittal of names to the National Instant Criminal Background Check System database.”
The Second Amendment is being tossed aside without a formal dispute process to challenge the action before a constitutional right is abridged.
On these facts alone, the regulation should be repealed. But, there’s more.
The regulation fails to establish that a person is a danger to themselves or others before taking away the constitutional rights that the Second Amendment allows.
If a rule premised on safety is to have any credibility, one would think that the government would need 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 dangerous.
The Second Amendment, as a fundamental right, requires the government to carry the burden to show a person has a dangerous mental illness. This regulation obviously and simply does not achieve that.
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. Individuals who are found to have a dangerous mental illness will be prohibited from purchasing firearms. A person convicted of a felony or a misdemeanor crime of domestic violence will be prohibited. The same for those involuntarily committed to a mental institution.
Mr. President, as government expands, liberty contracts. And it follows that with the expansion of government, power is centralized in Washington, DC rather than the American people. And often with that centralization of power, fairness does not necessarily follow. 
This Obama-era regulation is the perfect example of government wielding too much power. The process I have described here is extremely problematic, and it calls for doing away with this rule by passing this resolution of disapproval.
It is not clear that any of these disorders a person is labeled with has anything 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. By contrast, under this regulation, those who are reported to the list must prove a negative. They must prove that the government is wrong.  They must prove that they are not a danger in order to get their name off the gun ban list.
For the government to shift the burden to the citizens whose rights it is depriving is clearly unfair. It’s unconstitutional.
The failure to determine a person mentally ill or a danger to self or others is a material defect to this regulation. And so is the failure to afford any due process. There is no reasonable basis under this regulation to justify abridging a fundamental constitutional right.
And that is why this regulation must be repealed, through the passage of this resolution of disapproval.
I yield the floor.