June 30, 2016
The Honorable Carolyn Colvin
Social Security Administration
6401 Security Boulevard, Suite 900
Baltimore, MD 21235
Dear Commissioner Colvin,
I am writing on behalf of the National Council on Disability (NCD) to express concern regarding the Social Security Administration (SSA)’s proposed rule (NPRM) implementing the NICS Improvement Amendments Act of 2007 (SSA-2016-0011) issued on May 5, 2016. NCD is a non-partisan federal agency made up of nine presidentially or congressionally-appointed Council Members who are charged with providing advice and recommendations regarding disability policy to the President, Congress, and other federal agencies.
NCD has repeatedly expressed opposition to equating the need for a representative payee for Social Security payments with an adjudication as a “mental defective” (as specified in 18 U.S.C. 921). In a 2013 letter to Vice President Joe Biden, NCD warned against promoting policies in response to the horrific tragedy in Newtown which could “exacerbate harmful stereotypes about mental illness…” NCD went on to offer a series of concrete proposals and recommendations which would ensure that the country’s response to this tragedy would not increase the stigma associated with psychiatric and intellectual disabilities or curtail the civil rights these groups have fought so hard to achieve. Specifically, NCD wrote to the Vice President:
NCD urges you to avoid any proposal to link the Social Security Administration's database of representative payees with the FBI's National Instant Criminal Background Check System (NICS). Whatever merits such a proposal might seem to present, such benefits are outweighed by the inaccurate and discriminatory inference that would result: equating the need for assistance in managing one's finances with a presumption of incapacity in other areas of life.
There 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 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 already face. While the proposed rule is limited to people who have a “mental disorder,” this classification includes a wide range of limitations and a shifting set of criteria that is relevant to whether or not one can engage in substantial gainful activity. However, the classification is irrelevant to the question of whether one can be a responsible gun owner.
Restriction on the Possession of Firearms
As SSA correctly states in the NPRM, 18 USC 922(g)(4) establishes that any person “who has been adjudicated as a mental defective…” is prohibited from owning or possessing a firearm. 20 CFR Part 421. Furthermore, 27 CFR 478.11 states that someone has been adjudicated as a mental defective upon a “…determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
- Is a danger to himself or to others; or
- Lacks the mental capacity to contract or manage his own affairs.” 27 CFR §478.11
The proposed rule relies on the NICS Improvements Amendments Act (NIAA) (P.L. 110-180) for its authority to implement the proposed rule. However, NIAA—codified in a note to 18 USC 922--does not expand the scope of SSA’s authority; rather, it merely states that the head of any federal department or agency must provide the pertinent information contained in a record already maintained by the agency to the Attorney General on a no less than quarterly basis for inclusion in the NICS. In other words, NIAA authorizes the reporting of an existing status (eg. adjudication as a mental defective as defined by 27 CFR 478.11) for inclusion on the NICS but does not give SSA any new authority to determine who should or should not be able to purchase a weapon. Because there is no new authority to make this determination, the question becomes whether the individuals in records that SSA would forward to the Attorney General under the proposed rule are subject to the prohibition against owning or possessing a firearm because of their status as “mental defectives.”
Inclusion in the NICS
NIAA was passed almost a decade ago in 2007. In the intervening period, SSA does not appear to have determined that the records covered by this rule were of a type that warranted forwarding to the NICS. The NPRM addresses this decade’s long gap between the passage of NIAA and SSA’s implementation of it through text in the introduction of this proposed rule by alluding to the Presidential memorandum issued January, 2013 and to DOJ guidance that resulted from that memo.
First, one should note that 18 U.S.C. 922(g)(4) already mandates the inclusion of a variety of individuals in the NICS database and prohibits them from owning a firearm. This includes individuals who are involuntarily admitted to a mental institution; and those who have been found not guilty by reason of insanity or determined to be criminally insane. It is possible that some of the people who receive SSA benefits for a mental impairment and need a rep payee are also in one of the aforementioned categories. However, in proposing this rule, SSA in essence suggests that SSA itself is a “court, board, commission or other lawful authority” that has determined that each individual being reported “as a result of marked subnormal intelligence or mental illness, incompetency condition or disease…[l]acks the mental capacity to contract or manage his or her own affairs.”
As the quoted DOJ guidance points out, this does not include all individuals who have low IQs or mental illness, and specifically, voluntary admission to a facility does not disqualify a person from owning a gun.
The flawed interpretation the NPRM asserts is that the phrase “lacks the mental capacity to contract or manage his or her own affairs” means that if one lacks the ability to either contract or manage their affairs they are prohibited from owning a gun. However, it is a basic tenant of logic known as De Morgan’s law that the negation of a disjunction conjoins the negations. In other words, the expression [not (P or Q)] means the same thing as [(not P) and (not Q)]. So, only people who can neither contract nor manage their own affairs are subject to the prohibition against owning a gun. SSA lacks the authority to determine whether a beneficiary has the right to contract. While some individuals who have representative payees also have had the right to contract removed by a court under a guardianship proceeding, that is by no means the case with every individual who receives SSI or SSDI. Notably, according to 20 CFR 404.2035, the representative has a variety of duties and responsibilities—but they are expressly not given authority to contract for the person for whom they serve as rep payee. Furthermore, SSA explains on a section of its own website titled “Understanding Supplemental Security Income Representative Payee Program – 2016 Edition,” “[a] representative payee has no authority to enter into any binding contracts on your behalf.” (See: https://www.ssa.gov/ssi/text-repayee-ussi.htm).
SSA does not remove the right to contract from the beneficiary by appointing a representative payee, nor do they transfer the right to contract to the representative payee through the appointment, and they have no authority to do so. So, many people who have a rep payee retain the right to contract, and the removal of this right is not a precondition to having a rep payee. Logically, the statement “lacks mental capacity to contract or manage his or her own affairs” must mean that the individual described can neither contract nor manage their own affairs. Some people who have representative payees can contract, therefore some people who have representative payees are not prohibited from owning guns.
This is very similar to the following idea:
A patient scheduled for surgery is someone who has been determined by a doctor, as a result of their immediate need for surgery, to be unable to eat or drink the day they are scheduled for surgery.
Using SSA’s logic to interpret this expression, the patient in question could choose between a bagel and a cup of coffee for breakfast the day of surgery, which is clearly an erroneous result. The result here is equally erroneous.
What Process is Due?
It is settled law that, "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972) Qtd. In Mathews v. Eldridge, 424 U.S. 319 (1976). SSA has a long history of establishing processes that meet the Mathews v. Eldridge test with respect to determinations that involve the property rights that are represented by eligibility for SSA benefits due to disability. Accordingly, there is a process for determining whether an individual is eligible for SSI or SSDI because of a “mental impairment,” and all of the individuals subject to this rule will have had that question answered in the affirmative after applying for benefits. The individual at this stage is asking SSA to provide them with a benefit, thus inviting the Government to confer upon them the status of someone who is eligible for benefits due to a psychiatric disability or intellectual impairment. At no point at this stage in the process is there any reason for the person to protest the removal of their Second Amendment right. The due process he or she is provided with at this point—which involves the right to several appeals in the case of a denial--is designed to ensure that he or she is not denied a property right, in this case the right to be eligible for benefits. That process is somewhat unassailable with respect to determining benefits eligibility, as its sufficiency has been tested over a long period of time. However, it is noteworthy that the average waiting period for a final determination is approximately 17 months, and SSA has been widely criticized for failing to alleviate the backlog of cases. Additionally, the agency has repeatedly asserted that the reason for this delay in processing cases is a lack of increases in their administrative funding. In her recent testimony, SSA Deputy Commissioner Theresa Gruber noted that “…1.1 million individuals and their families [are] awaiting a hearing decision…[T]hese individuals are waiting an average of 17 months for an answer from us—and in some places, the wait is much longer.” Gruber goes on to attribute this backlog on a combination of insufficient budgets several years in a row and a record number of hearing requests that were precipitated by the large number of baby-boomers that began reaching their “most disability-prone years” (Testimony of The Honorable Theresa Gruber, Deputy Commissioner, SSA, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Regulatory Affairs and Federal Management, Examining Due Process in Administrative Hearings , May 12, 2016).
Once the individual has been determined to be eligible for benefits under the determination process described above, in order to be subject to the proposed rule, they must also be determined to need a representative payee. While this is painstakingly described in the NPRM as an elaborate three-step process, that description was recently contradicted by the SSA’s retiring Inspector General. In a hearing on May 18, 2016, SSA’s Inspector General described the determination of whether an individual needs a representative payee this way: “[I]t’s not a scientific decision, it’s more of a personal opinion.” (Testimony of the Honorable Patrick P. O’Carroll, Inspector General, SSA, House Committee on Ways and Means, Hearing on Protecting Social Security from Waste, Fraud, and Abuse, May 18, 2016).
This might raise due process concerns, except that the state is not depriving a person of life, liberty, or property when a representative payee is appointed – they are merely determining that the benefit (property) granted to the person will be expended on their behalf by a representative payee. However, this proposed rule elevates what Mr. O’Carroll referred to candidly as a “personal opinion” to a “determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease…[l]acks the mental capacity to contract or manage his own affairs.” However, this is not even the standard outlined in the Social Security statute for appointment of a representative payee. In fact, under the existing statute, a representative payee can be appointed, “[u]pon a determination by the Commissioner of Social Security that the interest of such individual would be served thereby…regardless of the legal competency or incompetency of the individual…” 42 USCS § 1383. However, once the Commissioner has determined it’s in the individual’s interest to have a representative payee, under this rule, that determination is used to revoke the Second Amendment right of the beneficiary -- a right which the Supreme Court announced in D.C. v. Heller is not inviolate, but which requires the same consideration as the First Amendment. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). As one federal court has noted since Heller was decided:
Heller now adds a constitutional component. Although the right established in Heller is a qualified right, [it] is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required. (United States v. Rehlander, 666 F.3d 45, 2012 U.S. App. LEXIS 766, 2012 WL 104908 (1st Cir. Me. 2012)).
SSA’s core mission is to provide $850 billion in benefits to 65 million beneficiaries annually, including 15 million beneficiaries through the disability programs. (Testimony of The Honorable Carolyn W. Colvin, Acting Administrator, SSA, House Oversight and Government Reform Committee, Regarding Oversight Of Federal Disability Programs, June 11, 2014.). Despite the fact that this is already an incredibly broad and complex mission, and SSA has at times struggled to fulfill it, with this rule SSA proposes to cure the due process deficiencies identified above, by: “…establishing a program that permits our beneficiaries who meet the requisite criteria to apply for relief from the firearms prohibition imposed by 18 U.S.C. 922(d)(4) or (g)(4) by virtue of our adjudication.” (Notice of Proposed Rulemaking (NPRM), Social Security Administration, 81 Fed. Reg. 87 (May 5, 2016) 27064).
However, not only is this process outside the scope of rulemaking authority granted to the agency by sections 205(a) (title II), 1631(d)(1) (title XVI), 702(a)(5) (title VII) or any other section of the Social Security Act; not only does it place a tremendous administrative burden on an agency that already has a 17-month backlog for disability determinations, it also is insufficient due process to support the deprivation of a constitutional right.
Several things are unclear about SSA’s review process that purport to give the individuals covered by this rule an opportunity to have their Second Amendment right restored:
- Danger to self or others is not an aspect of the determination that they meet the definition of “mentally defective” that results in being prohibited from owning a gun. Rather, the salient issue is whether it is in the person’s interest for a representative payee to be appointed to manage the Social Security benefit. However, in order to get one’s Second Amendment right restored, one has to prove that they are not a danger to themselves or society. It is both illogical and a violation of fundamental principles of due process to require an individual to prove the non-existence of a fact that was not a factor in the initial so-called adjudication in order to restore a legal right.
- The determination that an individual is a danger to self or others is a determination that is outside the scope of SSA’s authorizing statute, and it is not at all clear that NIAA confers rulemaking authority on the agencies that are subject to its reporting requirements.
- Assuming the previous challenge is overcome, how is SSA equipped to render judgment as to whether an individual poses a danger to themselves or society?
- Finally, given SSA’s current backlog and consistent assertion of inadequate workforce to keep pace, how is this proposed endeavor within the scope of SSA’s existing administrative duties?
Stigma is Not an Appropriate Response to Gun Violence
This rule is proposed as part of a response to high-profile national tragedies that have broken the hearts of the nation, and SSA may be given the benefit of the doubt that this proposed rule represents an earnest attempt to curb gun violence. However well-intentioned it may be, 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 18 U.S.C. 922. People with disabilities, particularly psychiatric disabilities, have been viewed as a threat and denied participation in a variety of areas of life throughout history. That’s why, under the ADA, in order to deny someone employment based on a perception that their disability poses a threat to themselves, coworkers or the public, “an employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.” (EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, March 25, 1997, accessed June 17, 2016 https://www.eeoc.gov/policy/docs/psych.html) Surely it is unacceptable to apply a lower standard in order to deprive an individual of a constitutional right. Furthermore, this deprivation is accomplished through an unauthorized expansion of SSA authority that would only serve to undermine the core mission of the agency and it does so with insufficient due process protections necessary to support the revocation of a constitutionally protected right.
For all the reasons outlined in this letter, NCD respectfully urges SSA to withdraw this proposed rule in its entirety. We welcome the opportunity to meet with SSA to further discuss the concerns outlined in this letter. Please contact Joan Durocher, Director of Policy, to arrange a meeting, at firstname.lastname@example.org.