One of the most under-discussed aspect of the President’s package of executive action on guns concerns a modification of regulations for HIPAA that allow states to report information concerning mental health to the federal government, which is incorporated into the instant background check system.

What troubles me the most from the 56-page rule is this comment and response:

Comment: A number of commenters expressed concern that a finding of mental incompetence by the Veterans Administration (VA), which could make an individual subject to the Federal mental health prohibitor and cause the individual to be reported to the NICS, may be based solely on a determination that the veteran is unable to handle financial affairs, without regard to dangerousness. The commenters argued that these veterans do not receive due process before being made subject to the Federal mental health prohibitor and believed that the proposed rule would exacerbate this problem.

Response: We note that, as a federal agency, the VA is required by law to report prohibited persons to the Attorney General, who oversees the NICS.33 This final rule does not affect that requirement or change the procedures relating to adjudications that make individuals subject to the Federal mental health prohibitor.34

The non-answer makes clear that people who are not at all dangerous would still be prohibited from acquiring a firearm.

The regulation makes clear that a person can be deemed unable to manage their affairs not just by a court, but by a “lawful authority,” which could be some anonymous government bureaucrat, lacking due process.

The Federal prohibitor regulations define an involuntary commitment as a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The other applicable adjudications include determinations by a court, board, commission, or other lawful authority that persons are a danger to themselves or others, or lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease.23

Although the federal act only applies to certain covered entities that cover “involuntary commitments,” the states are free to require all medical professionals to make these sorts of reports to the federal government.

The rule does not create a requirement to disclose. In addition, as explained at length in the NPRM and above, the rule does not apply to most treating providers, but only to those covered entities that are responsible for the involuntary commitments or other adjudications that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of such data. However, we note that covered entities have a responsibility to comply with all applicable laws, and this final rule does not preempt State or other laws that may require reporting to the NICS.

As I noted yesterday, the President’s actions provide blue states with a blueprint of how to proceed.

For reasons I don’t know, one day after CMS published this blog post (saved on the WayBack Machine) about how HIPAA regulations were modified, it was deleted. I’ll post the content here to save it for perpetuity. Also, here is the 56-page filing that CMS will publish in the Federal Register.

Obama administration modifies HIPAA to strengthen the firearm background check system

By: Jocelyn Samuels, Director of the Office for Civil Rights, U.S. Department of Health and Human Services

Today the Department of Health and Human Services (HHS) moved forward on commitments made by President Obama to curb gun violence across the nation.  Specifically, we have modified the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to expressly permit certain covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of those individuals who, for mental health reasons, already are prohibited by Federal law from having a firearm.

Due to a history of under-reporting, the NICS has lacked complete information about all individuals who are prohibited by Federal law from possessing or receiving a firearm. The modification announced today better enables the reporting of the identities of prohibited individuals to the background check system and is an important step toward improving the public’s safety while continuing to strongly protect individuals’ privacy interests.

Specifically, this final rule gives States improved flexibility to ensure accurate but limited information is reported to the NICS.  The rulemaking makes clear that, under the Privacy Rule, certain covered entities are permitted to disclose limited information to the NICS.  The information that can be disclosed is the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.

The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment. This rule applies only to a small subset of HIPAA covered entities that either make the mental health determinations that disqualify individuals from having a firearm or are designated by their States to report this information to NICS – and it allows such entities to report only limited identifying, non-clinical information to the NICS.

The rule does not apply to most treating providers and does not allow reporting of diagnostic, clinical, or other mental health treatment information.

It is important to note that the vast majority of Americans with mental health conditions are not violent and that those with mental illness are in fact more likely to be victims than perpetrators.  An individual who seeks help for mental health problems or receives mental health treatment is not automatically legally prohibited from having a firearm; nothing in this final rule changes that.  HHS continues to support efforts by the Administration to dispel negative attitudes and misconceptions relating to mental illness and to encourage individuals to seek voluntary mental health treatment.  Learn more about mental health resources and recovery athttp://www.mentalhealth.gov.

The Final Rule is available for review at: http://www.federalregister.gov.

Want to comment on this Blog? Visit our Twitter page @HHSOCR to share your thoughts and start a conversation.

Today in a unanimous decision, the Texas Supreme Court ruled that in November, Texans can will be able to vote on Proposition 49, a nonbinding resolution, that would call on the state, and the Congress, to pass an amendment that would reverse Obergefell v. Hodges. Here is the text of the Proposition:

Shall the Congress of the United States propose, and the Texas Legislature ratify, an amendment or amendments to the United States Constitution to overturn Obergefell v. Hodges (2015) 135 S.Ct. 2017 and other applicable judicial precedents, to hold that the Constitution does not guarantee a constitutional right to same-sex marriage?

Just kidding. Instead, the California Supreme Court ruled that Californians can vote on Proposition 49, a nonbinding resolution that would call on the state, and the Congress, to pass an amendment that would reverse Citizens United v. FEC. Here is the text of the Proposition:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?

I will be speaking on two panels at the AALS 2016 Annual Meeting.

On Friday, at 1:30, I will be speaking on the Constitutional Law Section panel. The topic is “Resistance and Recognition.” I will be discussing my work on Gridlock and Executive Power.  The panel will also include:

• Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
• Speaker: Charlton C. Copeland, University of Miami School of Law
• Moderator: Martha L. Minow, Harvard Law School
• Speaker: Rachel F. Moran, University of California, Los Angeles School of Law
• Speaker: Mr. Robert Nelson, American Bar Foundation

Here is the description:

With the Supreme Court reaching a tipping point in terms of its composition, and the Court’s opinions renegotiating the parameters of reproductive justice, racial justice and same-sex marriage under the 14th Amendment, voting rights, political equality, and the scope of federal authority relative to state authority, our goal with this program is to create a space to discuss the overall issue of resistance and recognition. What does resistance and recognition mean? Are they even possible, and if so, under what conditions? Are we limited to the forms of resistance and request for recognition pursued in the Civil Rights Era? Does resistance require direct negation of government policy, regulation, or structures? Or can/should we expand our understanding to include things like a transvaluation of constitutional memory or a reconstruction of subjectivity as a means to assert rights for recognition under the Constitution? The participants in this panel will offer a variety of perspectives on thinking about resistance and recognition under the Constitution. The larger aim of the panel is to open up a conversation about the possibilities for the formation of a discourse of resistance and recognition under the Constitution in the 21st century.

On Saturday at 11:00, I will be giving a presentation at the Federalist Society Faculty Conference, which for the first time is advertised alongside the AALS programs. Here are the details of the jam-packed panel:

7 Minute Presentations of Works in Progress Panel 2-A
11:00 am – 12:15 pm
Liberty 4, Third Floor

Moderator: Prof. Stephen E. Sachs, Duke University School of Law
Prof. Josh Blackman, South Texas College of Law: “Collective Liberty”
Prof. Adam Candeub, Michigan State University College of Law: “The Administrative State Ideology and the Constitution”
Prof. Christopher Green, University of Mississippi School of Law: “Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review”
Prof. Earl Maltz, Rutgers Law School: “Originalism, the Reapportionment Cases, and Democratic Theory”
Prof. Irina Manta, Hofstra University Maurice A. Deane School of Law &Prof. Cassandra Robertson, Case Western Reserve University School of Law: “Secret Jurisdiction”
Prof. James Phillips, Law Clerk, Utah Supreme Court; Mr. Daniel Ortner, Law Clerk, Utah Supreme Court; Hon. Thomas R. Lee, Associate Justice, Utah Supreme Court: “Corpus Linguistics and Original Public Meaning: A New Tool to Make Originalism More Empirical”
Prof. Shruti Rajagopalan, SUNY Purchase College: “Political Entrepreneurship and Amendments to the Indian Constitution”

If you are in New York, I hope to see you there!

In Chief Justice Roberts’s year-end report in 2011, he strongly suggested that it would be unconstitutional for Congress to bind the Supreme Court by the code of conduct.

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

I questioned whether it was an unconstitutional advisory opinion, signed by one Justice. Roberts’s letter also harkened back to that of his icon, Chief Justice Hughes who wrote a letter opposing the Court-Packing plan by telling Congress that the Court was “one” court, and could not be divided.

His 2015 year-end report offers something bordering on an advisory opinion of how to interpret the new Federal Rules of Civil Procedure. Howard Wasserman observes:

It is difficult not to read Roberts’ facially neutral comments about delays in litigation–he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics–as not reflecting the anti-plaintiff slant of much of this Court’s procedure jurisprudence. “Speedier litigation” is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants’ possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts’ Report appears to be pushing district judges towards that understanding. …

Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Mike Dorf adds that Roberts is trying to shape the rules beyond his already-powerful role in appointing the rules committee, voting on the rules, and then voting as a Justice to interpret the rules.

So why does the Chief make a big deal out of this and other relatively minor changes in the Rules? In an email to a civil procedure listserv, my colleague Kevin Clermont perceived what the Chief was up to. Clermont agrees with the scholars quoted in the Times article that the drafters of the amendments intended to restrict discovery somewhat, but he notes (along lines similar to those I’ve just discussed) that the actual wording revisions do not appear to change much at all. Yet by saying that the Rules have changed, Clermont notes, the Chief Justice makes it so. As Clermont wrote to the list (quoted here with his permission), Chief Justice Roberts “is giving the lower courts their marching orders.  So now those rewordings and relocations likely will have a big effect. Roberts thereby amends the amendments.”

I can’t imagine Roberts’s colleagues are content with his decision to offer substantive legal opinions in a report that is not circulated for consent. Dorf adds:

Against this background, the Chief’s fourth bite at the apple in his 2015 annual report may seem like no big deal. But that’s not quite right. In each of the other contexts, the Chief must act with or through other people. The members of the committees in fact act on their own views; and when deciding whether to approve the committees’ recommendations or in resolving concrete cases, the Chief is only one of nine votes. His end-of-year report, by contrast, expresses the Chief’s unadulterated view. Given his long record of seeking to limit court access, it is hardly surprising that he chose to use this forum as a means to accomplish further cutbacks, but it is dispiriting nonetheless.

I joked in 2012 that maybe Justice Breyer will issue a dissent, like he did from the order closing the door.