[Pages S491-S497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCTED BILLS AND JOINT RESOLUTIONS
By Mrs. FEINSTEIN (for herself, Mr. Schumer, Mr. Durbin, Ms.
Klobuchar, Mr. Blumenthal, Mr. Wyden, Ms. Cantwell, Mr. Udall,
Mr. Van Hollen, Mr. Murphy, Mrs. Gillibrand, Mr. Merkley, Mr.
Carper, Mr. Sanders, Mr. Markey, Ms. Baldwin, Mr. Cardin, Mr.
Heinrich, Ms. Hassan, Mr. Brown, Ms. Stabenow, Ms. Cortez
Masto, Mr. Kaine, Ms. Harris, Mr. Leahy, Mr. Peters, Mr. Coons,
Mr. Menendez, Mrs. Murray, Mr. Booker, Mr. Whitehouse, Mr.
Franken, Ms. Hirono, Ms. Warren, Mr. King, Mr. Casey, Mr.
Warner, and Mr. Reed):
S. 240. A bill to nullify the effect of the recent executive order
that temporarily restricted individuals from certain countries from
entering the United States; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I have come to the floor as we have
just filed a resolution--a bill actually--with 26 cosponsors that would
repeal the immigration ban placed by President Trump. President Trump's
Muslim ban is unnecessary, it is unconstitutional, and it is un-
American. It should be repealed immediately.
The Executive order prohibits individuals from Iran, Syria, Iraq,
Sudan, Somalia, Libya, and Yemen from entering the country. It even
bars relatives of Americans from visiting. The order suspends the
entire U.S. refugee program, and most egregiously, Syrian refugees are
banned indefinitely unless they are Christian. These provisions are not
what America is all about.
First, the order is unnecessary. Individuals from the 7 targeted
countries and 150 other nations are already thoroughly screened.
Visitors fill out visa applications. They submit photographs that run
through biometric databases. Their personal information is reviewed,
including names, addresses, and dates of birth. They are interviewed at
a U.S. consulate. The process could take months to complete and
eliminates the need for the travel ban.
In addition, the move to ban refugees has no legitimate national
security reason because these refugees undergo an even more thorough
screening process that can take up to 2 years to complete. The vast
majority of refugees are women and children who have experienced the
absolute worst of humanity.
Let's not forget the heart-wrenching image of the small body of Aylan
Kurdi, a 3-year-old Syrian boy, washed up on a beach, dead. I will
never forget this small boy in his short pants, his shoes, and his
socks, lying on that beach. To turn away women and children and men in
their time of dire need is not what this Nation is all about.
Let me make this point: The poor execution of this Executive order
has resulted in chaos and confusion. It is unclear whether the Justice
Department or Homeland Security had any input. There seems to have been
a disagreement about whether it would apply to green card holders.
There was confusion about whether it applies to
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individuals already in transit or approved for travel. Even airport
directors--I have spoken directly with the directors of Los Angeles
International and San Francisco International, and there was confusion
about how it applies. Even airport directors were left in the dark
about how many people were detained and who they were.
Sara Yarjani was one Californian caught up in this mess. She is an
Iranian national studying at the California Institute for Human Science
in San Diego under a valid student visa. After being detained at LAX
for 23 hours, she was sent back to Europe, a clear violation of the
nationwide stay against the order. What I am saying is that the court
stay was actually violated. This is just one of more than 100 stories
from the weekend.
I believe this order is also unconstitutional. The First Amendment
prohibits government from establishing a religion or prohibiting the
free exercise thereof. The order violates this First Amendment by
targeting Muslims and favoring Christians. The order may also violate
the Religious Freedom Restoration Act, which forbids the government
from burdening the person's exercise of religion. The law bars any
discrimination based on national origin in the issuance of a visa.
Finally, detaining people at airports may violate their Fourth
Amendment rights.
This was an ill-considered overreach, as the courts showed over the
weekend, and it should be repealed.
So the bill that 27 of us are introducing rescinds the President's
Executive order. The text is simple because the message is simple: We
won't stand for these types of actions.
In conclusion, I would like to say that I am so proud of the peaceful
demonstrations we saw, and I join those who are so passionate about the
free exercise of religion and free speech. These are our values, Mr.
President, as a nation, and I will be right there with you if anyone
tries to violate them.
______
By Mr. HOEVEN (for himself, Mr. Barrasso, Mr. McCain, Mr.
Lankford, Mr. Moran, and Ms. Heitkamp):
S. 245. A bill to amend the Indian Tribal Energy Development and Self
Determination Act of 2005, and for other purposes; to the Committee on
Indian Affairs.
Mr. HOEVEN. Mr. President, I rise today to introduce S. 245., the
Indian Tribal Energy Development and Self-Determination Act Amendments
of 2017.
Over 10 years ago, Congress passed the Indian Tribal Energy
Development and Self-Determination Act. This act was a step in the
right direction to economic self-sufficiency for Indian tribes and
energy independence for our Nation.
It created a process for Indian tribes to govern the development of
their energy resources while reducing costly bureaucratic burdens of
Secretarial review, approval, and oversight. But after more than 10
years, the act has not been implemented in a manner beneficial to the
tribes or efficient resource development.
Bills have been introduced for the past four Congresses to improve
and clarify the process but none of them have been signed into law. It
is past time Congress acts and gets this bill across the finish line to
be signed into law.
The bill that I am introducing today would improve, clarify, and make
predictable the process for tribes to enter energy resource agreements
and development. I would like to highlight some of the key provisions
in this bill.
The bill provides clarity regarding the specific information and time
frames for Secretarial decisions required for tribal energy resource
agreements. This bill recognizes the need to engage tribes by requiring
more robust technical assistance and consultation with Indian tribes in
the planning and development stages for energy resource development.
It would further facilitate the Secretarial approval process for
mineral development by allowing Indian tribes and third parties to
perform appraisals. This bill also includes renewable energy resource
development by authorizing tribal biomass demonstration projects to
assist Indian tribes in securing reliable, long-term supplies of woody
biomass materials.
I would like to thank Senators Barrasso, McCain, Lankford, Moran, and
Heitkamp for joining me in cosponsoring this bipartisan bill. I urge my
colleagues to join me in advancing this bill and getting it signed into
law expeditiously.
______
By Mr. INHOFE (for himself, Mr. McConnell, Mr. Rounds, Mr.
Cassidy, and Mr. Lee):
S.J. Res. 9. A joint resolution providing for congressional
disapproval under chapter 8, of title 5, United States Code, of the
rule submitted by Securities Exchange Commission relating to the
disclosure of payments by resource extraction issuers; to the Committee
on Banking, Housing, and Urban Affairs.
Mr. INHOFE. Mr. President, we are introducing today a CRA that is
kind of interesting. This is something that has only been successful
one time.
I think everyone knows that during the past 8 years, under the Obama
administration, we have seen thousands, literally thousands of
regulations that have come through that have been anti-business, many
of them anti-certain businesses, such as the oil and gas industries. It
is no secret, the fact that we have had a President, in President
Obama, who has had a war on fossil fuels.
It is interesting to me that when I go back to my State of Oklahoma--
one reason I go back all the time is because I want to be around real,
rational people. Sometimes I get the feeling there really aren't any
around here. They ask questions. They will say: Tell me. Explain this
to me. In the United States of America, in order to generate power, 89
percent of the power we are generating is either fossil fuels, coal,
oil, gas, or nuclear. If we do away with 89 percent of our generation
capability, then how do we run the machine called America?
The answer is that we can't. But we don't get those types of
questions here. I am sure most of us who go back find that kind of
concern, and it is not confined to Oklahoma.
I chaired the Environment and Public Works Committee during the 8
years--during the time President Obama was in office, and most of the
regulations were actually associated with that committee. Many
committees have regulations associated with their committees but not
nearly as many as Environment and Public Works. An example is the WOTUS
regulation. Ask anyone with the American Farm Bureau or anyone who
deals with farmers and ranchers, and the No. 1 problem they have, they
will tell you, is nothing that is found on the AgNu Committee; it is
the overregulation of the EPA. That is one example. The Environment and
Public Works Committee is the committee that has the jurisdiction over
the EPA--at least we are supposed to.
During the time when WOTUS came through--the water regulation--it has
historically always been the States' jurisdiction to handle water
issues, not the Federal Government, with the exception of navigable
water. I think we all understand that. In fact, there were several
liberal Members in the House and Senate who tried to take the word
``navigable'' out of the regulations, and we defeated them every time.
The last two who tried to do that were, in fact, defeated in the polls.
We know that in the State of Oklahoma--I should say our farmers know
that if you put the Federal Government in charge of water regulations
in the western part of Oklahoma, which is an arid part of the State, it
would end up being designated as a wetland. Anyway, that is a major
concern they had.
Another example of regulation is President Obama's Clean Power Plan.
We all know how that came about. Way back in 1972, I was one of the bad
guys who told the truth about what they were referring to as global
warming, saying the world was coming to an end. Even though a lot of
the Members of this body didn't join in and agree with me, every time,
without exception, they came up with a bill that would do something--
such as a cap-and-trade bill, for example--we defeated the bill, and it
was continually defeated by an even larger margin as time went by.
President Obama came in, and when he couldn't get the legislation he
wanted passed, he tried to do it through regulation. That is what he
did with the Clean Power Plan--another rule that was rejected.
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I only bring up those examples because they are typical regulations
that put people out of business that actually came through my
committee.
I am here to introduce S.J. Res. 9. This did not come through my
committee; it came through a provision that is in the Dodd-Frank bill.
Anyone going back to their States and talking to bankers or anyone in
the financial industry, when talking about the Dodd-Frank bill, it is
an example of the same type of overregulation that takes place on many
of the issues that come before my committee.
Section 1504 of the Dodd-Frank bill requires the Securities and
Exchange Commission to develop a rule that requires companies to report
payments made to a foreign government or the U.S. Federal Government
relating to the commercial development of oil, natural gas, and
minerals. That is a requirement which is not found in our committee,
but it is found in the committee that handled the Dodd-Frank bill.
While that may not sound all that significant, it strikes at the
heart of American competitiveness. It makes public the information of
our very best companies on how to win oil and gas deals. It requires
companies to disclose and make public highly confidential and
commercially sensitive information, and this is information that
foreign competitors don't have to provide. Under this regulation, we
would be required to provide it. That means that American companies
would have to disclose all of the background and sensitive information
that companies develop in competing for contracts of some kind having
to do with oil and gasoline. It could be with another country, like
Iran. It could be with individuals over there who are not friendly to
the United States. Countries that don't wish to disclose the details of
their commercial deals would now have a strong incentive to go with
companies in countries that don't have that burdensome requirement.
That is only natural.
To make matters worse, the SEC's rule lacks an exemption for
circumstances in which disclosure under 1504 would violate the laws of
a country where a U.S. company is operating. So it leaves U.S.
companies with a choice of complying with U.S. laws or the laws of
foreign countries. That is an impossible position to be in and could
put U.S. employees at risk of criminal prosecution abroad for
facilitating the release of this information.
If that weren't enough, the cost of complying with this regulation is
enormous. American companies would have to comply, and it could cost
millions of dollars. The SEC's estimate of the total compliance cost
initially would be up to $700 million. The ongoing compliance costs
would be as much as $581 million annually. Those costs would be borne
by U.S. companies, and our competition would not have to do that.
The courts already struck down this rule when it was first developed
in August 2012. The DC Federal district court struck down the rule in
2013 because of two substantial errors. Specifically, the Commission
had ``misread section 1504 to mandate public disclosure of the
reports'' and had arbitrarily declined to provide an exemption for
countries that prohibit disclosure.
The new rule, finalized in June of 2016, doesn't look any different.
It is the same rule. Even though the SEC was told by the courts that
the rule did not reflect congressional intent, they continued to put
out a new rule that had the exact same problems as the one the court
had vacated. It is the same rule. It is as if the Obama administration
was rushing this rule out in hopes that there wouldn't be time or an
opportunity for a court or Congress to overturn it. But here we are in
the process of overturning it.
Last week President Trump issued an Executive order to reduce the
regulatory impact on American businesses. With this CRA, we have an
opportunity to effectively participate in that. Our focus should always
be America first. As the Congress looks at the competitiveness of
American companies, we should not be subjecting our own citizens to
lawsuits, and that is exactly what this regulation would do.
By the way, I think we are going to get a lot of CRAs going forward,
and I think it is important for people to understand what the CRA is.
The CRA is the Congressional Review Act.
There are a lot of liberal people who like to have power concentrated
in Washington--like with the WOTUS rule. They would rather have the
jurisdiction of the waters of the United States with the Federal
Government instead of with State governments. That is human nature.
That is not something up for debate. Everybody knows that.
When individuals who are trying to centralize power in Washington go
home and hear complaints from people in their States about regulations
and overregulation in our society, their response is, well, that is not
us, that is some unelected bureaucrat. A CRA forces Members of the
Senate and House of Representatives to be held accountable to the
people by having to take a position so that they can't go home and say:
No, the regulators are doing this. It is interesting because it puts
them in a position where, if we pass a CRA--and we are going to pass
S.J. Res. 9--this will come before this body and we will have to say
yes or no. Should we do away with this rule that everyone back home is
opposed to? It forces them to be honest.
I think this is one CRA that many Democrats should be sponsoring and
voting for, and I wouldn't be surprised if we are able to get some
cosponsors.
Let me add one last point to outline what this is about. Within the
Dodd-Frank bill, section 1504 is a requirement on U.S. companies
competing for oil and gas deals throughout the world to disclose to
their competition what goes into their bid and how they are putting it
together, even when the other side doesn't have to do that.
I look forward to having the opportunity to bring this to the floor
as soon as we get our initial 30 signatures on here. Senators will see
and have an opportunity to support this first CRA that I am very
excited about.
______
By Mr. McCONNELL (for himself, Mrs. Capito, Mr. Manchin, Ms.
Heitkamp, Mr. Hoeven, Mr. Paul, Mr. Barrasso, Mr. Inhofe, Ms.
Murkowski, Mr. Blunt, Mr. Sullivan, Mr. Shelby, Mr. Tillis, Mr.
Johnson, Mr. Toomey, Mr. Wicker, Mr. Risch, Mr. Flake, Mr.
Boozman, Mr. Daines, Mr. Crapo, Mr. Moran, Mr. Lankford, Mr.
Young, Mr. Cotton, Mr. Roberts, Mr. Enzi, Mrs. Ernst, and Mr.
Cornyn):
S.J. Res. 10. A joint resolution providing for congressional
disapproval under chapter 8 of title 5, United States Code, of the
final rule submitted by the Secretary of the Interior relating to
stream protection; to the Committee on Energy and Natural Resources.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the text
of the joint resolution be printed in the Record.
There being no objection, the text of the joint resolution was
ordered to be printed in the Record, as follows:
S.J. Res. 10
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That Congress
disapproves the final rule submitted by the Secretary of the
Interior relating to stream protection (81 Fed. Reg. 93066
(December 20, 2016)), and such rule shall have no force or
effect.
Mrs. CAPITO. Mr. President, the last 6 years have been devastating to
local economies across coal country. The Mine Safety and Health
Administration has estimated that at least 60,000 coal jobs have been
lost since 2011, and thousands of these jobs have been in my home State
of West Virginia.
Excessive government regulation and other factors have done more than
cost jobs. These policies have imperiled our coal miner retirement
benefits, and they have left local governments struggling to keep up to
pay for education, to pay for public works, and to pay for law
enforcement. I can tell my colleagues story after story I have seen in
our newspapers about this very thing.
In October, the Senate Environment and Public Works Committee heard
testimony from Wayne County, West Virginia commissioner Robert Pasley.
He said that the coal severance tax revenues in Wayne County in West
Virginia--his county--dropped by 88 percent in 2013 and 2016. This drop
left the county without a vital funding source that traditionally
helped to pay for local volunteer fire departments, senior citizens
programs, and education.
West Virginia University economist John Deskins told the Senate
Energy
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and Natural Resources Committee in August that six West Virginia
counties were suffering a depression--a depression--because of the coal
downturn. And just last week, the State of West Virginia projected that
its annual State budget faces a $500 million shortfall.
So what was the response of President Obama's administration in its
last days in power? Yet another job-killing and anti-coal regulation
that would make a bad situation in my State worse.
The Department of the Interior published its stream protection rule
on December 20, 2016, and it made the rule effective on January 19,
2017--just 1 day before President Obama left office. There is a lot of
irony here, and I don't think it is by chance. According to a National
Mining Association Study, one-third of remaining coal jobs could be
placed at risk by the rule.
Today I am proud to join Leader McConnell as he introduces the Stream
Protection Congressional Review Act. We are also joined by my
colleagues in the West Virginia congressional delegation, including
Congressman David McKinley and Congressman Evan Jenkins, and others. We
are going to be introducing a resolution of disapproval under the
Congressional Review Act, blocking the Obama administration's stream
protection rule.
Once this resolution of disapproval is passed by Congress--and I
believe that it will be, and signed by President Trump, which I believe
that it will be--I am confident that both things will happen: The
stream protection rule will be nullified, and the Department of the
Interior will be prohibited from imposing a similar rule without
permission from Congress.
The stream protection rule deserves to be eliminated through the
Congressional Review Act process. Despite its title--because why would
we get rid of something called the stream protection rule--this rule
will do little to actually protect our streams, but if left in place,
this rule would cost even more coal jobs in my State and across the
country that have already been devastated.
West Virginia's former Department of Environmental Protection
secretary Randy Huffman told the Senate Energy and Natural Resources
Committee, on which I served last Congress, that the proposed version
of the stream protection rule was ``an unnecessary, uncalled for
political gesture.''
I would like to say that Secretary Huffman was serving under a
Democratic Governor in my State.
The stream protection rule is the result of an incredibly flawed
regulatory process that excluded State officials. Of the 10 States that
began the regulatory process--people were asked to join together to
begin this process--working with the Department of the Interior's
Office of Surface Mining, eight of those States eventually removed
themselves from the process because of the Department's unwillingness
to actually seriously consider their input. In other words, they were
just there for window dressing.
Ohio's chief of Mineral Resources Management Larry Erdos told the
Environment and Public Works Committee last February that ``OSM has not
provided for meaningful participation with the cooperating or
commenting agency states.''
Congress took action to instruct the Department of the Interior to
reengage with the States, realizing what was happening here, before
moving forward with this rulemaking process. However, despite this
direction from lawmakers in the Congress, the Department failed to
address the State concerns.
Wyoming director of Environmental Quality, Todd Parfitt, told the
Energy and Natural Resources Committee that ``the failure to engage
cooperating agencies throughout this process is reflected in the poor
quality of the proposed rule.'' He called on the Office of Surface
Mining to withdraw the rule and reengage with States and other
stakeholders.
Last week, West Virginia's newly appointed secretary of Environmental
Protection--again under a new Democratic Governor--Austin Caperton
wrote to congressional leaders detailing our State's concerns with the
stream protection rule. Secretary Caperton gave three main reasons for
West Virginia's opposition to this rule.
First, he said that the rule upsets the statutory balance between
environmental protection and allowing coal mining to take place in the
first place. Second, the rule conflicts with the congressionally
directed role of the States to be the exclusive regulators of mining
activities. And third, the rule conflicts with the Federal Clean Water
Act and State water quality standards--pretty broad-ranging concerns.
The concerns from environmental regulators in mining States across
the country explain why 14 States, including the State of West
Virginia, have already filed lawsuits to stop this stream protection
rule. Fifteen State attorneys general, led by West Virginia's attorney
general Patrick Morrisey, have written to Congress asking that this
rule be blocked using the Congressional Review Act.
State environmental regulators are not alone in their opposition to
this rule. Cecil Roberts, who is the president of the United Mine
Workers of America, wrote just last week in support of this resolution
of disapproval. He said that ``the last thing America's coal-producing
regions need at this time is another regulation that will have the
effect of reducing employment even more and further stifling economic
development.''
West Virginia cannot afford another job-killing regulation that once
again inserts Washington and their one-size-fits-all standard into a
regulatory process that is supposed to be effectively managed--and is
effectively managed--by our State agencies.
The stream protection rule is a flawed policy that was born out of a
flawed process.
The rule deserves to be eliminated promptly, and I encourage my
colleagues to cosponsor the McConnell-Capito resolution of disapproval
and to vote to block the rule in the coming days.
______
By Mr. GRASSLEY (for himself, Mr. McConnell, Mr. Crapo, Mr. Lee,
Mr. Cornyn, Mr. Paul, Mr. Barrasso, Mr. Shelby, Mr. Graham, Mr.
Lankford, Mrs. Ernst, Mr. Blunt, Mr. Roberts, Mr. Boozman, Mr.
Enzi, Mr. Gardner, Mr. Isakson, Mr. Cassidy, and Mr. Sasse):
S.J. Res. 14. A joint resolution 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; to the
Committee on Finance.
Mr. GRASSLEY. Mr. President, the resolution of disapproval I am
introducing today via the Congressional Review Act repeals a Social
Security regulation that unfairly stigmatizes people with disabilities.
It also violates the fundamental nature of the Second Amendment.
The Second Amendment recognizes the God-given right to self-defense.
In order to take away that right, the government must have a compelling
interest. Furthermore, the law of regulation to achieve that compelling
interest must be narrowly tailored. In other words, the government
better have one heck of a good reason for going against the Second
Amendment.
The Justice Department, the Department of Veterans Affairs, and the
Social Security Administration have not protected Second Amendment
rights adequately under the previous administration. Our fundamental
Second Amendment rights were constantly under attack.
For example, hundreds of thousands of veterans have been reported to
the National Instant Criminal Background Check System without due
process. Of course, that system amounts to a national gun ban list for
those reported erroneously. Veterans were reported without first having
a neutral authority find them to be a danger to self or others and thus
have a legitimate right to deny them their Second Amendment rights.
According to the government, the veterans needed a fiduciary to manage
benefit payments. That is not a sufficient reason under the law.
Needing help with your finances--simply needing that help--should not
mean you have surrendered your fundamental right of self-defense, and
it doesn't mean that you are a danger to the public.
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 name to the
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gun ban list. During the course of that debate, Senator Durbin admitted
that the list was broader than it should have been. Senator Durbin
said: ``Let me just concede at the outset, reporting 174,000 names goes
too far, but eliminating 174,000 names goes too far.''
For the record, there were 260,381 names from the Veterans'
Administration sent to the gun ban list for allegedly being in the
``mental defective'' category. Now, it just happens that this was 98.8
percent of all the names in that category. So the Veterans'
Administration reported more names by far than any other agency.
Senator Durbin's staff and mine have met over these issues since that
debate. I appreciate and thank Senator Durbin for that outreach, and I
want to work together with him to solve these problems for the VA. But
now, the Social Security Administration is about to make the same
mistake as the Veterans' Administration; that is, unless we stop them
right here and right now with this resolution of disapproval. If we
don't stop this, it could lead to hundreds of thousands of Social
Security recipients being improperly reported to the gun ban list.
At its core, Social Security's new regulation allows the agency to
report people to the gun ban list under two circumstances. First, the
beneficiary needs to have someone designated to help manage benefit
payments. That sounds like the VA; right?
Two, the beneficiary has an affliction based on a broad ``disorders
list.'' But the process for designating someone to help a recipient
manage Social Security benefits is not a process that is very
objective. But the process for designating someone to help a recipient
manage their Social Security benefit should be objective.
The former Social Security Administration inspector general said the
following last year in testimony about this process that offends us
here in the Senate and is the reason of this resolution: ``It's not a
scientific decision, it's more of a personal opinion.''
This ``personal opinion'' of a bureaucrat cannot be the basis for
taking away a person's fundamental Second Amendment right to bear arms.
Further, the second element--the so-called ``disorders list''--is a
convoluted mess of afflictions that may or may not cause someone to be
considered dangerous. Many of the listed disorders also do not impact
gun safety at all. For example, some afflictions deal with anxiety
disorders, fear of large crowds, or a lack of self-esteem. The list is
complex, the list is long, and the list is not designed to regulate
firearms. Rather, the list is designed to regulate whether a person can
manage his or her beneficiary payments--in other words, can they handle
money.
But here is the essential question that the Federal Government is
incapable of answering. If they aren't dangerous, why does the Social
Security Administration, like the VA, want to take away their guns?
The National Council on Disability, a nonpartisan and independent
Federal agency, has come out against the Social Security
Administration's rule and in favor of the repeal that this resolution
of disapproval will accomplish. The Council has repeatedly stated its
concerns about the agency failing to determine that people are
dangerous before reporting their names to the gun ban list.
It has been the National Council on Disability's ``long-held position
that restrictions on gun possession and 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.''
The Council has also stated that the rule ``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.''
Another organization, the Consortium for Citizens with Disabilities,
a coalition of 100 national disability groups, shares the same concerns
about the regulation about which we are having this resolution of
disapproval: ``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.''
With that being said, even the ACLU wrote a letter in opposition to
the agency regulation. I ask unanimous consent that these letters, as
well as others, be printed in the Record at the conclusion of my
remarks.
Simply stated, the agency rule uses a massive regulatory net that
captures innocent individuals who should be left alone. Just because a
person is assigned a fiduciary does not make that person or those
persons dangerous. Whenever the government tries to eliminate
fundamental constitutional rights, it is required to narrowly tailor
its regulatory action so that innocent people are not impacted. The
Social Security regulation fails in that regard.
That is why both the National Council on Disability and the
Consortium for Citizens with Disabilities have called specifically for
using the Congressional Review Act to repeal the final rule. That is
what our introduction of resolution will accomplish.
Constitutional due process is wholly lacking. For example, the agency
does not afford a beneficiary a formal hearing before his or her name
is reported to the gun ban list.
Now, think about that. The Second Amendment, which recognizes a
fundamental constitutional right, is being simply ripped away without a
formal dispute process to initially challenge the action. Instead, the
beneficiary must wait until their name is already on the gun ban list,
and only then can the beneficiary appeal the decision by the grace of
the government. This process effectively reverses what should be a
burden on the government. The government should not be able to strip a
fundamental constitutional right without due process and then place the
burden on the citizen to try to restore it.
A hearing should be afforded before the infringement of a fundamental
right, not afterward. The burden must be on the government to prove its
case. That simply is the American way--our Constitution's way.
The Social Security Administration regulation falsely claims that it
requires an adjudication before reporting names to the gun ban list,
but there is no hearing afforded to the Social Security recipient
before placing a name on the gun ban list. Of course, without a
hearing, that process cannot honestly be called an adjudication. In
other words, the Social Security Administration is blowing blue smoke
when they say that. Without an adjudication, the process violates
Federal law.
Here is the kicker. In order for beneficiaries to remove their names
from the gun ban list, they have to prove they are not dangerous.
Guilty until proven innocent, and the burden is on you to prove your
innocence. Any way you look at it, that is totally unfair, a violation
of the Constitution, but common sense ought to tell everybody it is
just plain wrong.
The Federal Government, under the Obama administration, treated
Social Security recipients with contempt and disregard when this rule
was put out. With our resolution of disapproval, we can effectively
terminate this unconstitutional government regulation, which the new
Trump Administration supports. I encourage all of my colleagues to
support our efforts.
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, 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
[[Page S496]]
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.
____
Consortium for Citizens
With Disabilities,
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.
____
The Judge David L. Bazelon Center for Mental Health Law,
January 30, 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 Bazelon Center for Mental Health Law urges 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.'' The Center is a
national legal advocacy organization that protects and
advances the rights of adults and children with mental
disabilities.
This rule would require the Social Security Administration
to forward the names of 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 rule is inconsistent with the statute it implements,
has no evidentiary justification, would wrongly perpetuate
inaccurate stereotypes of individuals with mental
disabilities as dangerous, and would divert already too-
scarce SSA resources away from efforts to address the
agency's longstanding backlog of unprocessed benefits
applications toward a mission in which the agency has little
expertise.
First, there is no statutory basis for the rule. The
National Instant Criminal Background Check System (NICS)
statute authorizes the reporting of an individual to the NICS
database on the basis of a determination that the person
``lacks the capacity to contract or manage his own affairs''
as a result of ``marked subnormal intelligence, or mental
illness, incompetency, condition or disease.'' The
appointment of a representative payee simply does not meet
this standard. It indicates only that the individual needs
help managing benefits received from SSA.
Second, the rule puts in place an ineffective strategy to
address gun violence, devoid of any evidentiary basis,
targeting individuals with representative payees and mental
impairments as potential perpetrators of gun violence. In
doing so, it also creates a false sense that meaningful
action has been taken to address gun violence and detracts
from potential prevention efforts targeting actual risks for
gun violence.
Third, the rule perpetuates the prevalent false association
of mental disabilities with violence and undermines important
efforts to promote community integration and employment of
people with disabilities. The rule may also dissuade people
with mental impairments from seeking appropriate treatment or
services, or from applying for financial and medical
assistance programs.
Finally, the rule creates enormous new burdens on SSA
without providing any additional resources. Implementation of
the rule will divert scarce resources away from the core work
of the SSA at a time when the agency is struggling to
overcome record backlogs and prospective beneficiaries are
waiting for months and years for determinations of their
benefits eligibility. Moreover, SSA lacks the expertise to
make the determinations about safety that it would be called
upon to make as part of the relief process established by the
rule.
Based on similar concerns, the National Council on
Disability, an independent federal agency charged with
advising the President,
[[Page S497]]
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.
Sincerely,
Jennifer Mathis,
Director of Policy and Legal Advocacy.
____
AAPD,
January 26, 2017.
Hon. Paul Ryan,
Speaker of the House,
Washington, DC.
Hon. Nancy Pelosi,
Office of the Democratic Leader,
Washington, DC.
Dear Speaker Ryan and Democratic Leader Pelosi: The
American Association of People with Disabilities (AAPD) urges
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).
AAPD is a national disability rights organization that
works to improve the lives of people with disabilities by
acting as a convener, connector, and catalyst for change,
increasing the economic and political power of people with
disabilities.
Prior to the issuance of the Final Rule, AAPD conveyed its
opposition to the rule to the Obama Administration. We, and
many other disability rights organizations, 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.
AAPD urges Congress to act, through the CRA process, to
disapprove this new rule to prevent the damage that it
inflicts on the disability community and the extraordinarily
damaging message it sends to society that people with mental
impairments could should be feared and shunned.
Thank you for taking our position into consideration. If
you have any questions or concerns, please do not hesitate to
contact me at (202) 521-4315 or at hberger@aapd.com.
Yours truly,
Helena R. Berger,
President & CEO.
____________________