Unable to legislate new restrictions on what kind of arms can be sold, the Obama administration has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).
On December 19, 2016, the Social Security Administration (SSA) finalized new regulations that will create a process for transferring the records of those who seek a “representative payee” (legal proxy) under the Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights. The SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional. Nor does the rule attempt to make that connection.
In July, for the first time ever, Cato’s Center for Constitutional Studies, with the help of Ilya Shapiro, Gregory Wallace, and me, filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction. Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague. Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.
The final rule only pays lip serve to these serious constitutional concerns.
The rule cites Heller’s “mentally ill” dicta without any further analysis. As we reply in our comment, this doesn’t cut it:
The government should not attempt to graft its capacious and vague definition of “mentally defective” onto Heller’s dicta. Doubtless, the Court did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) under the federal mental health prohibitor. For example, an agoraphobic person may have a fear of crowded Social Security offices, and request a representative-payee. The person may have complete control over her affairs, and have no impairment of her ability of self-defense. But due to specific conditions, she benefits from having a person appointed to handle disability payments. There is no reason to bar this person from owning a firearm.
What about due process? The disabled can only seek relief after their name is transmitted to DOJ for inclusion in the NICS.
An individual can request relief any time after the adjudication is final but we cannot delay fulfilling our obligations under the NIAA to provide relevant records to the Attorney General while the person decides whether to request relief.
And how long will that relief process take?
We will work in good faith to respond to all requests for relief promptly and within the 365-day period. . . . f we fail to resolve an application for relief within that period for any reason, including a lack of appropriated funds, we will be deemed to have denied the relief request without cause. In accordance with the NIAA, judicial review of any petition brought under this paragraph (d) shall be de novo.
A year before you can go to federal court to vindicate your rights?! And who bears the burden during the proceedings? The person whose rights were violated:
It is generally appropriate under the law to place the burden of production and proof on the proponent of an order. In this case, that means the person who applies for relief must demonstrate his or her entitlement to relief, and there is no indication in the NIAA or any other provision of law that Congress intended to alter that normal rule.
No, people do not bear the burden to defend their own constitutional rights. But no worries, the rule states, because SSA is not denying anyone their constitutional rights:
While the rule addresses reporting requirements, it is the Federal Gun Control Act, not the Social Security Act, that governs when a person can possess a firearm.
At bottom, here’s the dirty secret: this entire rule is premised on SSA’s interpretation of a never-published DOJ guidance document. We discuss this ruse in our comment:
The NPRM triggers reporting to the NICS based on the finding that a claimant who has been found disabled under one of the listed mental impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.00 et seq., requires a representative payee. Under 42 U.S.C. § 405(j)(1), however, payments to a representative payee are (1) discretionary when the agency “determines that the interest of any individual under this chapter would be served thereby . . . regardless of the legal competency or incompetency of the individual” and (2) required when the agency determines that “such a payment would serve the interest of the individual because the individual also has an alcoholism or drug addiction condition (as determined by the Commissioner) and the individual is incapable of managing such benefits.” Since the proposed rule triggers reporting to the NICS in cases of mental disability other than alcoholism or drug addition, the discretionary standard applies. That standard explicitly disclaims any necessary relationship between appointment of a representative payee and a beneficiary’s mental incompetency.11
To solve this problem, the “guidance” fabricates a link between the the ATF regulation, and the rulemaking. In January 2013—as part of his post-Sandy Hook executive actions— President Obama directed the Justice Department to “issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS.”12 Three years later, this Justice Department “guidance” documents celebrates its regulatory cotillion through footnote 10 of the Notice of Proposed Rulemaking. For the very first time, the public learned that in March 2013, DOJ distributed a document titled “Guidance to Agencies Regarding Submission of Relevant Federal Records to the NICS.” The “guidance” specifically states that a person who “lack[s] the mental capacity to contract or manage his own affairs” includes someone who received an “agency designations of representative or alternate payees for program beneficiaries.” The “guidance” conveniently defines the broader category of being unable to manage affairs, at the narrow, precise level of specificity of SSA’s authority: Designating a representative payee. Without this “guidance,” the NPRM would lack statutory authority. The “guidance” purports to create a connection where there is none. But this administrative sleight of hand will not save the NPRM, because SSA receives no deference in interpreting statutes and regulations that are entrusted to another agency to implement.
Even under Auer, courts owe SSA no deference in interpreting guidance issued by other agencies:
It is certainly true that under Auer v. Robbins, agencies interpreting their own regulations are entitled to deference—even if the “guidance” document is not produced until the course of litigation.13 But here, SSA is not interpreting its own regulations; it isn’t even interpreting another agency’s regulations. The basis of the entire NPRM is DOJ’s 2013 unpublished “guidance.” SSA cannot claim any deference by interpreting another agency’s informal guidance document or regulations. There is no indication that Congress intended SSA to have any role in deciding who would be “mentally defective” for purposes of a gun-control law. The rulemaking is “procedurally defective” ab initio, for it lacks any “reasoned explanation” for how SSA has the authority, expertise, or qualifications to interpret the DOJ regulation, and make determinations that raise serious Second Amendment and due process concerns.14
This rulemaking is nothing more than a “rope-a-dope.” Commenters and litigants will launch a myriad of constitutional challenges against a deficient rule and SSA will deflect, arguing that the correct target is the Justice Department (which is not a party to this rulemaking). But in truth, the government has it backwards: it’s “dope-a-rope.” SSA is entitled to no deference in its interpretation of BAFTE’s 2014 regulation, informed by the DOJ “guidance.”
The publication date of December 19 is no coincidence. The rule goes into effect on January 18, two days before the inauguration. The Trump Administration cannot halt the effective-date of the rule, but it can withdraw the DOJ guidance document. At that point, there is no defense available for the rule.
Additionally, this is a prime candidate for disapproval under the Congressional Review Act. Additionally, the proposed rule notes that several subsidiary issues must be submitted for future rule-making. I suspect those rule-makings will never happen.