A Victory for Disability Rights and the Constitution

March 14th, 2017

(Cross-posted at Cato at Liberty with Ilya Shapiro)

For months, we’ve been following the saga of a misguided agency regulation that would have deprived some of the most vulnerable Americans of their basic due process rights. In May of last year, the Obama administration proposed a rule designating everyone who uses a “representative payee” (usually a friend or relative) to aid in filing social security disability forms as “mentally defective.” The practical consequence of such a change is that those deemed “mentally defective” (itself a vague and insulting term from a bygone legal era) will automatically fail their federal background check if they attempt to buy a gun. This presumption of unfitness can only be overcome after a lengthy, years-long bureaucratic process to prove one’s own competency.

We’ve written extensively on why this rule is prejudicial and unfair. During the rule’s “notice and comment” period, Cato’s Center for Constitutional Studies submitted its first-ever public regulatory comment, objecting to the rule on 10 different grounds. We pointed out that the rule is vastly overbroad, since those filers who use a “representative payee” include anyone the Social Security Agency believes “would be served thereby … regardless of the legal competency or incompetency of the individual.” Moreover, the rule is counterproductive even when applied to those who do suffer from a psychiatric disability, because those people are more likely to be the victims of violent crimes rather than the perpetrators. Finally, we explained that the rule violates constitutional due process; the burden of proof must fall on the government before it can deprive an individual of a constitutional right.

But despite these efforts, the Obama administration forged ahead, finalizing the rule two days before President Trump took office. This seemed to be the final chapter of the story. Now, however, we can report a much happier ending, thanks to a vital law called the Congressional Review Act (CRA).

The CRA was enacted in 1996 to preserve the legislature’s role in American policy-making when agencies try to unilaterally create sweeping national rules. The Act requires that agencies must submit every newly promulgated rule to Congress for review. Once a new rule has both been submitted to Congress and published in the Federal Register, Congress has a period of 60 legislative days—about six months of real time in practice—in which both houses can pass a disapproval resolution by simple majority vote (no Senate filibusters or parliamentary stall tactics are allowed). If such a resolution is passed by both houses and signed by the president, the rule in question is abolished, and no similar rule can be enacted in the future except by statute.

Soon after the “representative payee” rule was finalized, a movement began urging Congress to implement the CRA in overturning it. The arguments were bipartisan; one of us (Blackman) joined with authors from the Autistic Self Advocacy Network and the National Disability Rights Network to explain why the rule was terrible for both gun rights and disability rights. Whatever one’s views are on the gun debate in America, both sides could agree that “individuals with a disability should not be scapegoated to advance gun control.”

This campaign caught on. Many of the arguments that we and others had made to agency regulators—to no avail at the time—were echoed by the people’s elected representatives. House Majority Leader Kevin McCarthy, for example, wrote that the rule “would elevate the Social Security Administration to the position of an illegitimate arbiter of the Second Amendment.”

The disapproval resolution passed both houses and has now been signed by the president, putting an end to the rule once and for all.

Elections have consequences. In this instance, it’s satisfying that one such consequence has been the end of a stigmatizing rule that never should have been proposed in the first place. As this case has demonstrated, the CRA has the potential to be an enormously important tool in the fight against misconceived regulations. The “mentally defective” rule is one of three regulations that have already been revoked using the CRA during the Trump Administration, and 11 more could be on the chopping block soon, with disapproval resolutions having passed in at least one house of Congress.

Even if common-sense arguments for the protection of individual rights fall on deaf ears in the federal bureaucracy, the people’s representatives still retain the ultimate power to create federal policy and vindicate those rights. That is the system the Framers designed, and that is the system the CRA helps preserve. For more on the ambitious project to use the CRA to reverse harmful regulations, see Pacific Legal Foundation’s RedTapeRollback.com.

We thank Cato legal associate Tommy Berry for his help with this blog post.