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.

Mr. President, we have a very bad regulation that has been put out by the Social Security Administration that needs to be obliterated, so we are using a process called the Congressional Review Act to show Congress's displeasure with the Social Security Administration and to get this regulation off the books.

Now, there has been a lot of talk about how the Congressional Review Act is the wrong vehicle to repeal the disastrous regulation. So I want to quote a contrary opinion from the National Coalition for Mental Health Recovery saying this:

The CRA--

Meaning the Congressional Review Act--

is a powerful mechanism for controlling regulatory overreach,

and NCMHR 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, NCMHR feels that

utilizing the CRA to repeal the final rule is not only

warranted, but necessary.

I would add to it that it is obviously necessary.

I ask unanimous consent that the letter be printed in the Record.

Mr. President, there has also been talk about how supposedly dangerous it will be if this Social Security regulation is terminated. I don't see how that can possibly be realistic if the Social Security Administration doesn't even determine whether a person is dangerous in the first place--and ``dangerous'' meaning in regard to whether or not they ought to be able to make use of the constitutional right of the Second Amendment to own and possess firearms.

Others in this debate continue to mention that mentally ill people will be able to acquire firearms. Now this is very important. The Social Security Administration does not determine a person to be mentally ill prior to reporting their names to the gun ban list, and being on the list denies you your constitutional rights. The agency has confirmed this in writing to my office:

Yes, you are correct. The Social Security Administration

does not diagnose individuals as mentally ill.

Supporters of this gun ban failed to address why individuals are not provided formal due process before reporting their name to the list. Supporters have also failed to talk about how the regulation is inconsistent with the statutory standard of ``mental defective.''

An existing statute requires agencies to report individuals to the gun ban list who are ineligible under current law for possessing firearms. That requirement does not require the existence of any regulation to be effective. So it is plainly wrong to claim, as was said this very day by the people opposed to what we are doing, that if the regulation is disapproved, agencies will no longer have to report prohibited persons. The reverse, in fact, is true.

The regulation usurps unlawful authority to report people to the gun ban list who are not barred from owning guns under current law and that the agency is prohibited from reporting under current law, especially without the adjudication that is required under current law.

Opponents of the regulation base their opposition on the language of the regulation, existing law, and the Constitution, citing the Constitution to say that you don't have a constitutional right to own arms under the Second Amendment, which is contrary to two recent Supreme Court decisions that verify that that applies to an individual. That is why the regulation's supporters must resort to arguments that lack legal and factual foundation.

Supporters of this gun ban also fail to address how overly broad this regulation is, as written. It will capture innocent Americans, denying innocent Americans their constitutional rights. Sadly, then, we know how this will play out if this regulation were allowed to go forward because we have the example of the Department of Veterans Affairs reporting hundreds of thousands of veterans to the National Instant Criminal Background Check System without adequate due process. That is the same system that Social Security was going to report people to.

Veterans were reported just because some lonely bureaucrat wanted to report them, with no opportunity to first have a neutral authority hold a hearing, finding that that individual is dangerous or actually has a dangerous condition. These were veterans who needed financial help managing their benefit payments.

It is common sense that needing help with your finances should not mean that you have surrendered a fundamental constitutional right of self-defense that you have under the Second Amendment.

Just like the Social Security Administration, the VA does not determine whether a veteran is dangerous before reporting his name to the gun ban list and denying that veteran his Second Amendment constitutional rights to own and possess firearms. The VA regulation is eerily similar to what the Social Security Administration wants to do.

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 names to the gun ban list. Now that is common sense; isn't it? You ought to find out if they are really dangerous before they are denied a constitutional right.

During the course of that debate, Senator Durbin admitted that the list was broader than it should have been. He said:

I do not dispute what the Senator from Iowa suggested, that

some of these veterans may be suffering from a mental illness

not serious enough to disqualify them from owning a firearm,

but certainly many of them do.

Senator Durbin also said:

Let me just concede at the outset, reporting 174,000 names

goes too far, but eliminating--

As my legislation proposed to do--

174,000 names goes too far.

For the record, though, it wasn't really 174,000 names going too far. It was actually 260,381 names that the VA sent to the gun ban list. Now that happens to be 98.8 percent of all names that are in the alleged ``mental defective'' category.

The Department of Veterans Affairs reported more names by far than any other agency without sufficient justification. Senator Durbin's staff and mine have met over these issues since that debate, and I appreciate and thank him for that outreach.

Now we have the Social Security Administration problem and, through the Congressional Review Act, we can do something about it. We don't have to pass a separate piece of legislation, like we are going to have to do to straighten out the VA. So the Social Security Administration is about to make the same mistake as the VA unless we stop it right here and right now.

If this regulation is not repealed, the agency has informed my staff that approximately 15,000 to 75,000 beneficiaries of Social Security may be reported annually, denying them their constitutional right to bear, possess, and own firearms. That figure of 15,000 or even more so--the higher figure of 75,000--will add up very quickly.

In my earlier speech today on this topic, I made clear that the agency regulation is defective in many ways; namely, the regulation does not require the agency to find a person dangerous or mentally ill. The regulation provides no formal hearing before a person is reported to the gun ban list.

Supporters have also said that repeal of this regulation will interfere with enforcement of gun prohibition laws. Such a position is without any merit--denying people constitutional due process.

As I made clear in my earlier speech, important Federal gun laws are still on the books, even if the agency rule is repealed. This is so because this new regulation is actually inconsistent with those existing Federal gun laws. For example, individuals who have been determined to be dangerous or mentally ill will be prohibited, as will those convicted of a felony or a misdemeanor crime of domestic violence, and the same for those involuntarily committed to mental institutions.

While discussing the faults and defects of the rule, I think it is important to highlight that the issues I have pointed out are also the solution to the problem. If the supporters of the agency rule want the Social Security Administration to report individuals to the gun ban list, changes need to be made. Individuals must first be determined by a neutral authority after a fair hearing meeting the requirements of the U.S. Constitution. If they are dangerous and have a dangerous mental illness, then they could constitutionally be denied that right. Constitutional due process is a very important part of that process.

If we do not act, the agency will erroneously report tens of thousands of people per year to the gun ban list, and not one of them will have been adjudicated to be dangerous after a hearing with due process, not one of them will have been adjudicated to be mentally ill after a hearing with due process, and all of them will have had the government's burden shifted to them to prove they are not dangerous in order to get their name off the gun ban list. It is common sense, isn't it? It ought to be that you are innocent until proven guilty. If you can't have a gun, common sense tells me you ought not have

to prove that you can have a gun to the government; the government has to prove that you should not have a gun.

Any way you look at it, the regulatory scheme is patently unfair. If the government wants to regulate firearms, it needs to produce a clearly defined regulation that is very narrowly tailored to identify individuals who are actually dangerous and who actually have a dangerous mental illness. The government must also afford constitutional due process.

What we are dealing with here is a fundamental constitutional right backed up by two Supreme Court decisions in the last 10 years. With that type of constitutional status, the Second Amendment requires greater effort and greater precision from the government in order to fairly regulate how the American people exercise that constitutional right. This regulation simply doesn't meet that standard.

I urge my colleagues to support the resolution of disapproval.

Mr. President, I don't know whether anybody else is coming to seek the floor. If I am infringing upon somebody else's time, I will yield the floor, but in the meantime, I ask unanimous consent to speak as in morning business.

Mr. President, I rise today to discuss some criticism I have heard about the nominee to fill the seat on the Supreme Court. That nominee is Neil Gorsuch.

My colleague, the minority leader, met with the nominee last week. Afterward, he told reporters that he had ``serious, serious concerns'' about the judge. Well, I guess I shouldn't be surprised--after all, it seems the minority leader had concerns about the nominee even before the nominee was announced.

Before Judge Gorsuch was announced, the minority leader made clear that any nominee must be ``mainstream.'' But it became clear immediately that this nominee is widely regarded as a mainstream judge with impeccable credentials. Liberal law professor Laurence Tribe says that ``he's a brilliant, terrific guy who would do the Court's work with distinction.'' Alan Dershowitz, who certainly is no conservative, says that Judge Gorsuch will be ``hard to oppose on the merits.'' Even President Obama's Acting Solicitor General, Neal Katyal, said Judge Gorsuch ``would help to restore confidence in the rule of law.'' The chorus goes on.

Apparently, because the nominee is so obviously mainstream, the benchmark for my colleague's concerns keeps changing. The minority leader has conveniently developed a new test. Now he says the benchmark is independence: ``The bar for the Supreme Court nominee to prove that they can be independent, has never, never been higher.''

Well, fortunately for the minority leader, Judge Gorsuch passes that bar with flying colors, just like he passed the ``mainstream'' test with flying colors. The nominee's record makes clear that he is an independent and fairminded judge who is deeply committed to the separation of powers.

Here is just one example from his many opinions on this point. Just last year, Judge Gorsuch had to decide a case about the authority of the Board of Immigration Appeals, or the BIA, which answers to the Attorney General. The BIA wanted to change the Attorney General's power to waive immigration requirements for illegal immigrants, and it wanted the new rules to apply to undocumented immigrants whose waiver applications were already in the works. The nominee said no to this executive agency. To be clear, Judge Gorsuch was asked to decide whether an executive agency in charge of immigration laws could change the law on a whim in a way that many believed was unfair to immigrants who had already sought waivers. He said no.

With due respect to my friend the minority leader, there is no doubt that Judge Gorsuch would say no to this or any other part of the executive branch that oversteps its bounds.

Here is what the nominee wrote about the separation of powers and executive branch overreach. For him to defer to the executive agency in that case would be ``more than a little difficult to square with the Constitution of the framers' design.'' That is because doing so would allow agency bureaucracy to ``swallow huge amounts of core judicial and legislative power,'' which the Constitution assigns to separate branches of government. So the nominee was concerned about the separation of powers. He was concerned about people whose liberties might be impaired, and because of those concerns, he said no to the immigration agency's policy whim of the day.

Judge Michael McConnell, a former colleague of Judge Gorsuch on the Tenth Circuit, makes the same observation about this case. He says the scope of executive power arguably ``will be the most common Supreme Court issue of the coming decade.'' He says the nominee analyzes that issue in a way that is faithful to the Constitution and to the independence of the judiciary, and he points to the nominee's thinking on this question. Judge Gorsuch wrote:

What would happen . . . if the political majorities who run

the legislative and executive branches could decide cases and

controversies over past facts? They might be tempted to bend

existing laws, to reinterpret them . . . [this would] risk

the possibility that unpopular groups might be singled out

for this sort of mistreatment--and [would] rais[e] along the

way, too, grave due process, fair notice, and equal

protection problems. . . . It was to avoid dangers like

these, dangers the founders had studied and seen realized in

their own time, that they pursued the separation of powers.

That is the writing of an independent judge who believes in the separation of powers.

You know, there is a bit of irony to some of the criticism I have heard leveled against Judge Gorsuch. On the one hand, I have heard that he will have to be independent and that he won't rubberstamp the President's agenda. On the other hand, I have heard that he will be way too tough on the executive branch as it fulfills the President's agenda. It is quite obvious that, common sense tells us as we look at those two arguments that we can't have it both ways.

Judge Gorsuch has shown he is faithful to the separation of powers in the Constitution. That means he will be an independent judge who will say no when the other branches of government overreach.

You don't need to take my word for it. Listen to President Obama's Acting Solicitor General, Neal Katyal. He is no fan of the President's Executive order, but he says that Judge Gorsuch ``will not compromise principle to favor the President who appointed him.'' Instead, the Solicitor General said the nominee ``would help to restore confidence in the rule of law.''

Judge Gorsuch's record and reputation leave no room to doubt that he is a mainstream, independent judge. He will apply the law fairly, and he won't be afraid to say no when the Constitution requires it.

Every time my colleague the minority leader has set out a standard for filling this Supreme Court seat, this judge has met it. He is mainstream. He is independent. And when my colleague chooses a new standard, I bet the nominee will also meet that new standard.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am here principally to speak about the NICS Social Security Act, Congressional Review Act resolution that is before our Chamber, but events of the last 24 hours really raise before us the urgent and unavoidable issue of needing an investigation into the recent activities of Michael Flynn. He resigned as the National Security Advisor last night after revelations that he misled Vice President Mike Pence and other top White House officials. He may have misled the President and others in the White House, but there are also very serious questions about who knew what when. These classic what did they know and when did they know it questions must be answered by an independent counsel or commission, and the reason it must be independent is the same very profoundly important reason that I gave to then-Nominee Jeff Sessions, now Attorney General.

The Attorney General must appoint a special counsel in cases where there is reason to question his complete impartiality and objectivity; the reality as well as the appearance mandate here that there be an independent investigation by a special counsel.

Only a special counsel, independent of the Attorney General and of the White House, can ask with penetrating, aggressive, unflinching analysis whether the President knew before Michael Flynn made those phone calls to the Russian Ambassador and other phone calls to other foreign powers what the subjects of the conversations were, even whether they were going to be made, and only an independent counsel can know, with complete credibility and being regarded that way by the public, as to what happened and who knew what happened and when they knew.

This issue is about more than just a phone call to the Russian Ambassador. It is about the integrity and honesty of public officials, about the protections we give to our intelligence, and about the independence of our justice system.

I certainly have respect for the Office of Attorney General, but Jeff Sessions was deeply involved in President Trump's campaign and in the Presidential transition. I expressed to him in the hearing on his nomination that he would have to distance himself from an investigation of exactly these issues to maintain impartiality and objectivity in that investigation. So I will write to him today, and the letter will be made public shortly, asking for an independent counsel, a special investigator who can produce the information that is necessary for the public to be assured that there has been an inquiry that is impartial, objective, comprehensive, and thorough. It has to be unflinching and unstinting, and it should be done as soon as possible.

Mr. President, I want to address the issue that is before us on the floor relating to the Congressional Review Act resolution that we will vote on shortly and in my view that will undermine existing law if it is passed. Too many times in recent years we have had the terrible responsibility of bearing witness to the trauma and grief that follow gun violence. We see it in our streets every day, not just in Sandy Hook, which every day weighs on our minds and thoughts and hearts in Connecticut but the more than 30,000 deaths every year and countless injures all across the country in big and small towns, the streets of Hartford as well as rural and suburban communities.

I am far from the only one in this Chamber who has borne witness to that trauma and grief. Gun violence has claimed too many lives in too many places, through mass shootings in movie theaters as well as the constant drumbeat of shootings that never make the headlines. Our constituents count on us to make them safe. That is one of the fundamental responsibilities of our government. And by overwhelming majorities, including majorities of Republicans and of gun owners, they support commonsense steps to keep guns out of the hands of dangerous people. In failing to move forward with legislation that would advance those goals, Congress has been complicit in this ongoing epidemic. It is truly a public health crisis. If more than 30,000 people died every year from disease or other kinds of communicable illnesses, there would be a call for drastic action.

This kind of public health crisis must be met with strong steps. When many of us in this body who believe that Congress must now take action to stem the scourge of gun violence hear one refrain from our colleagues--``enforce the law; enforce the law that already exists''-- we must heed that cry.

Enforcing the law that already exists is exactly what this regulation entails. So we must be ready to move forward. Yet, as my friend and colleague Senator Murphy noted earlier, the Congressional Review Act resolution we are about to vote on will not only fail to enforce existing law, it will undermine existing law. Federal law prohibits those who have severe mental health issues--that is to say, issues that would prevent them from safely handling a gun, from possessing a gun.

Federal law also requires agencies that have information indicating that people are disqualified from gun possession to share that information with the NICS background check system. Under this regulation, the Social Security Administration has proposed to do

exactly that. Pursuant to the 2007 NICS Improvement Amendments Act--a law passed in the wake of the horrific Virginia Tech shooting to address significant loopholes in the background check system--the Social Security Administration will submit records to NICS for Social Security recipients who meet a specific set of carefully defined criteria. The regulation will apply only to a subset of Social Security disability recipients. It does not apply to those who are receiving Social Security retirement benefits. It applies only to those disability recipients who have been found, based on the Social Security Administration's established criteria, to be severely impaired due to a mental disability and who are therefore unable to perform substantial work or manage their own disability benefits.

Repealing this regulation could lead to great harm, exacerbating loopholes and failings in the background check system that erode public safety.

I have a letter from the United States Conference of Mayors, which represents city leaders from across our country. It says that ``due to loopholes in current law, too many mass murderers are still able to too easily obtain guns. This includes the individual responsible for killing 32 people and injuring 17 others at Virginia Tech in 2007 that led to the enactment of the NICS Improvement Amendments Act. These killings must stop and this rule, as implemented last year, will help to do that.''

I ask unanimous consent to have printed in the Record a letter from the United States Conference of Mayors, as well as a letter from the National League of Cities.

It is critical to note that neither I nor any proponents of the Social Security Administration's rule believe that all or most or even a significant percentage of those suffering from mental health issues are dangerous--far from it. The overwhelming majority of people who confront mental health issues are peaceful and law-abiding citizens who seek only the treatment that should be everybody's right. In fact, I have been a strong advocate over many years of mental health parity, beginning when I was attorney general in the State of Connecticut. The very first Federal law on this issue that was passed was modeled in many ways after the State law that I championed. I was proud to support the passage of a bill last year to provide more resources to those seeking treatment, and I hope that it moves this country toward providing everyone with the care they need.

Mental health issues should be no cause for fear, no reason for stigma, no excuse for shame. Those who have come forward and been open about the treatment they have sought, in fact, have done themselves and their communities and country a great service. If I thought SSA regulations unfairly targeted people with mental illness or that it advanced the perception that they are inherently dangerous, I would oppose it with every fiber of my being, but that is not the regulation we have here.

As Senator Durbin said this morning and my colleague Senator Murphy reiterated, this rule is not one loosely applied to anyone who has some trouble balancing a checkbook; it applies only to those disability recipients with a serious and debilitating mental health issue. That is estimated to be about 75,000 people nationwide out of approximately 10 million Americans who suffer from a serious mental illness. Everyone who suffers from mental illness should have a right to treatment, but not all should have a gun. It is very unlikely that people who meet these criteria will be able to safely handle a gun or to safely store it in their home and prevent its misuse by themselves or by others.

It is possible that SSA's initial determination will be wrong. That is why crucially--please understand--crucially the regulation also provides due process. In fact, these due process protections are necessary when a constitutional right is at stake. This right, the Second Amendment right, must be respected as the law of the land. The regulation entitles those who are affected

by it to advanced notice. When going through the process to appoint someone else to handle their benefits, they are told that they will forfeit their firearms right. They are given that notice, and they are given due process. If they believe this is inappropriate or unnecessary, the regulation gives them that process to appeal. It is one that allows SSA to grant relief upon a determination that the beneficiary will not be ``dangerous to public safety,'' a term that has meaning.

SSA is also required to notify the NICS background check system if the name should be removed, whether it was submitted in error or because a beneficiary has recovered from the condition or because they were granted relief through the appeals process. Those are rights with real remedies, with due process, with fairness.

If I thought this regulation failed to provide adequate process that every individual is due, regardless of how much I support its goal, I would oppose it with, again, every fiber of my being because it should be and it is the law of the land.

Of course there may be ways that this regulation, like any regulation, could be improved if the criteria could be better targeted or if the due process protections could be made stronger or if the administration could be made more efficient. We should not hesitate to make those improvements. I would welcome suggestions for enhancements, but the methods chosen by my colleagues to attack this regulation--the Congressional Review Act--prevent any and all of those improvements.

Severely limiting the time for debate denies us adequate consideration. Much worse, it is a blunt-force instrument that will prevent the Social Security Administration from issuing any ``substantially similar'' regulation in the future. So the passage of this resolution will prevent the SSA from complying with the legal requirement for submitting legal records for a background check in the future. It will hamstring this agency and prevent it from fulfilling its obligation to public safety--that is regardless of whether new information comes to light or whether it would be possible to devise a better method of submitting these records.

In the words of the well-known and respected group Americans for Responsible Solutions, using the CRA to undo this rule would ``not only allow guns to be placed into the hands of individuals determined to be legally incapable of using them safely, but it also creates an irresponsible, irreversible precedent.''

As I have always said, I will work with my colleagues on any good- faith steps to stem the tide of gun violence in this country, and I would be more than happy--in fact, I am eager--to work with them to fix flaws they see in this regulation. We need to come together to improve the integrity and efficiency of the national background check system and keep guns out of the hands of people who cannot safely handle them. People who are dangerous to themselves or others--it may be a very small number, but they can do great tragic damage. The resolution we will vote on shortly accomplishes neither of these goals. It does nothing to answer my constituents who ask me time and time again why Congress does nothing to confront the epidemic of gun violence in this country. It would create an irresponsible, irreversible precedent. More important than the precedent is the consequence in real lives of the death and injury that could result. Those deaths and injuries are truly irreversible and irresponsible, and we can help to stop them by taking the right stand on this resolution.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I have heard my Republican friends tell those

of us who want the laws of this country changed to protect our constituents against gun violence that what we should focus on is enforcing the existing law; that we don't need any new laws, all we need to do is focus on enforcing the existing law.

Senator Wyden said he wished he had a nickel for every time he has been told our focus should be on background checks. Well, I wish I had a nickel for every time my colleagues told me we should focus on enforcing the existing law. Yet I would also be a rich man if I had a nickel for every time Republicans came to the floor and tried to undermine the existing law, tried to rewrite the existing law to make it harder to enforce it.

The Appropriations Act is, on an annual basis, loaded up with riders that hamstring enforcement agencies, don't allow them to actually enforce existing laws. The CRA we have before us today will make it harder for the Federal Government to do what we have told them to do for decades, which is to put dangerous people and people who are seriously mentally ill on the list of those who are prohibited from buying guns. That is the existing law. The existing law says that if you are convicted of a serious crime or you have a serious mental illness and you have gone through a process by which a determination has been made by a government agency as such, that you should not be able to buy a weapon.

Why do we have that law on the books? Why have we come together as Republicans and Democrats to say that people with serious mental illness or people who have been adjudicated of a violent crime shouldn't be able to buy weapons? It is because the evidence tells us over and over again that if you have committed a violent crime, you are likely--more likely than if you haven't committed a violent crime--to commit another one. And over and over again, as we have seen these mass shooters walk into places like Sandy Hook Elementary School or a movie theater in Colorado or a classroom in Blacksburg, we know that people with serious mental illness in this country can go buy a very powerful weapon and do great damage with it.

That does not mean there is an inherent connection between mental illness and violence. In fact, we know the opposite to be true. If you are mentally ill, you are probably more likely to be the victim of violence than you are to be the perpetrator of it. But we do know that in this country, given the fact that weapons are so easy to come by, people with mental illness--serious mental illness--who have an intersection with visions of violence often do great harm. So we made a collective decision as Republicans and Democrats that if you have a serious mental illness, you probably shouldn't be able to go and buy an assault weapon. That is what the law says.

Section 101 of the NICS Improvement Act is titled ``Enhancement of requirement that Federal departments and agencies provide relevant information to the National Instant Criminal Background Check System.'' That is a piece of legislation which both Republicans and Democrats supported. It commands that Federal agencies provide relevant information to the criminal background check system.

What is relevant information? ATF defines someone who should not be able to buy a gun as one who ``lacks the mental capacity to manage his own affairs.'' So there is the existing statute. The existing statute says that relevant agencies should forward information to the criminal background check system on individuals who are prohibited from owning guns, and that is defined in part as an individual who ``lacks the mental capacity to manage his own affairs.''

That is exactly what the regulation proffered by the Obama administration at the end of last year does. It says that individuals who have filed a claim for disability, who meet the requirements of one of Social Security's mental disorders listing of impairments, have been found to be so severely impaired that they are unable to work, and have been found, with due process, to be incapable of managing their own benefits and have had a representative appointed to them to manage their disability benefits, that those individuals meet the definition of someone who lacks the mental capacity to manage their own affairs.

If you are supporting this CRA today, then you are undermining the ability of law enforcement to do their job to enforce the law as Congress has passed. So spare me this rhetoric about passing no new laws because we should just focus on enforcement. Once again, with this CRA, you are undermining the ability of the Federal Government and of law enforcement to enforce the law.

Let's be clear about what the danger is. It is correct to state that there is no inherent connection between being mentally ill and being dangerous, but the risk is not just that an individual is going to buy a gun and use it themselves; the risk is that someone who literally can't deposit their own paycheck probably can't or likely can't responsibly own and protect a gun.

I could sit here for the rest of the day and recite the number of times a gun owned by one individual got used in an accidental shooting, got taken illegally, stolen from their premises, and used in a crime. The danger of an individual who has severe mental incapacity is not just that they are going to take that weapon and fire it but that they are not going to own, keep, and protect it responsibly. If you can't manage your own financial affairs, how can we expect that you are going to be a responsible steward of a dangerous, lethal firearm?

We are talking about a very limited group of individuals here--who, by the way, under the regulation, have due process to contest the determination. First of all, they have an ability to contest the determination by Social Security that they shouldn't be able to manage their own financial affairs, and then the regulation secondarily gives them the ability to specifically contest their limitation on gun ownership. So there is full ability for the individual or for the family to contest this limitation, which makes it completely constitutional. Nonsense that this is a restriction of a constitutional right.

The Heller decision, which does hold that an individual has a right to gun ownership, also makes it explicit in Justice Scalia's opinion that there are limitations on that right, and the Scalia decision itself lists as one of those conditions the restriction of gun ownership by people who are seriously mentally ill.

The law is clear that Federal agencies are required to upload information onto NICS of those individuals who cannot manage their own financial affairs because of mental illness. The Supreme Court is clear that this is entirely constitutional. So why are we doing this? Why are we having a debate about rolling back the criminal background check system when 90 percent of Americans support it?

No matter what State you live in, sit down with your constituents and tell them that you voted to allow people who are seriously mentally ill to be able to buy guns. You are not going to get a lot of takers. And it is not because people don't have compassion for people with mental illness. I have worked for the last 2 years to pass the most substantial mental health reform act that this body has seen in a decade. I have spent as much or more time than anybody in this Chamber advocating for the rights of people with mental illness and for their treatment. But I also understand that when people are so mentally ill that they can't manage their own financial affairs, they probably shouldn't buy a gun. That is a small class of people.

What makes me so angry about this is I have no idea how to go back to the people whom I represent in Connecticut and tell them that in the 4 years since the massacre in a smalltown elementary school, not only has Congress passed no law, made no change in statute to try to keep dangerous weapons out of the hands of would-be shooters, but that today we are doing exactly the opposite. The response to the epidemic of mass shootings in this country is to make it easier for people with serious mental illness to get guns. How do I explain that to people in Connecticut?

How do the folks representing areas where shootings are a regular occurrence explain that Congress has done nothing to address mass shootings, to address the epidemic rates of gun violence in our cities, and yet we think it is so important to undermine the criminal background check system--not strengthen it, undermine it--that in the first month of this new administration and this new Congress, we are

rushing through this repeal of a commonsense regulation? That is deeply offensive to the majority of Americans, who think we should be strengthening our criminal background checks system, not undermining it. Ninety percent of Americans think we should have universal background checks. Not only are we not listening to them, we are undermining the criminal background checks system today.

I get that the gun lobby is pretty powerful in this place. I get that they have stood in the way of changes in our criminal background checks system that were supported by 90 percent of Americans. But even I wasn't cynical enough to think they had so much power that they could get Congress to roll back, to undermine the criminal background check system in the wake of this continued horrific level of gun violence all across the country.

Senator Wyden is right. The danger in this is not just that it has the immediate impact of undermining the criminal background check system, but it potentially blocks our ability to get this right in the future. We don't know what the precedent is for CRAs because we haven't done them before. What we know is that it says you can't pass any regulation that is substantially similar to the regulation that you legislated on. Well, what does that mean in the context of keeping people with serious mental illness off the criminal background check system? Does that mean we can't ever legislate or regulate on the narrow issue of individuals who have had their right of financial affairs restricted through Social Security, or is that a broader prohibition that limits the administration's ability to regulate on strengthening of the criminal background check system in a much more comprehensive way?

We are playing with fire here because this is a precedent we know nothing about. We are playing with fire because we are potentially limiting the ability to ever get this issue right in the future when 90 percent of Americans want us to work together on it.

I understand this issue is a sensitive one. Having spent my entire career working hand in hand with committed advocates for people with mental illness, I understand the danger of conflating mental illness with violence. But this is a narrow category of individuals who by definition fit the parameters in existing law for those who are supposed to be on the NICS system.

For all the things that we disagree about on gun policy--I don't suspect we are going to get a meeting of the minds this Congress on whether all gun sales should be subject to background checks. I don't suspect we are going to figure out a way to work together on restricting access to high-capacity magazines or assault weapons. I thought at least we agreed on keeping the background check system that we have.

The existing law says that individuals who lack the mental capacity to manage their own affairs should be included on the list of those who are prohibited from buying weapons, and today we are undermining that existing law. We are undermining the enforcement of current statute-- something Republicans have said over and over again they are not interested in doing.

I strongly urge my colleagues to vote against this measure.

I yield the floor.

Mr. President, today I come to the floor to address my colleagues about the bipartisan resolution of disapproval that I introduced on January 30, along with Senator Crapo and 24 other cosponsors. This resolution now has 32 cosponsors, and of course this resolution of disapproval is absolutely necessary.

The resolution of disapproval is a procedure, as we know, under the Congressional Review Act for repealing executive branch regulations. The regulation at issue here in this disapproval resolution was issued by the Social Security Administration under President Obama. This regulation unfairly stigmatizes people with disabilities. If the regulation is not repealed, it will allow the agency to very unfairly deprive Social Security recipients of their Second Amendment rights. The regulation would result in disability recipients being reported to the National Instant Criminal Background Check System as ineligible to own a firearm and, thus, have their Second Amendment rights violated.

This is essentially a national gun ban list. The agency accomplishes this by doing two things: determining if a person has a disorder on a vague ``mental disorders'' list, and, two, appointing a representative payee to manage benefit payments.

This process has been in place for years to merely assign a representative payee. That is merely someone who is authorized to deal with the bureaucracy on behalf of that Social Security recipient to help a recipient with their finances. Now it is being used to report beneficiaries to a list so that they cannot buy or own a gun. Of course, once on that list, individuals are prohibited, as I have already inferred, from purchasing, owning, and possessing firearms, thus violating Second Amendment rights.

The regulation is flawed beyond any kind of repair. It results in reporting

people to the gun ban list that should not be on that list at all. It deprives those people of their constitutional rights and, in a very important way, violates their constitutional rights without even due process.

Under current Federal law, one must first be deemed ``mentally defective'' before being reported to the gun ban list. However, the mental disorder list in this regulation is filled with vague characteristics that do not fit into the Federal ``mentally defective'' standard.

The disorder list is inconsistent with the Federal mentally defective standard. More importantly, the list was never designed to regulate firearms. As such, it is improper to use it for that purpose.

Many of the disorders on the list are unrelated to gun safety. For example, the disorders list includes eating disorders, disorders that merely impact sleep or cause restlessness, and even disorders that could cause ``feelings of inadequacy.''

Because the Second Amendment is a fundamental right, the government must have a very compelling reason to regulate, and the regulation must be very narrowly tailored. It unfairly stigmatizes people with disabilities. The government is essentially saying that a person with a disability, such as an eating disorder, is more likely to be violent and should no longer be allowed to own a gun.

There is no evidence to support that general idea and, consequently, people being denied constitutional rights without due process. And if a specific individual is likely to be violent due to the nature of their mental illness, then the government should have to prove it. It is pretty basic constitutional law: The government should have to carry the burden before denying a constitutional right.

The National Council on Disability--and that happens to be a nonpartisan and independent Federal agency--has said this:

The 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 Federal law.

In addition, the American Civil Liberties Union has said:

We oppose this rule because it advances and reinforces the

harmful stereotype that people with mental disabilities, a

vast and diverse group of citizens, are violent. There is no

data to support a connection between the need for a

representative payee . . . and a propensity toward gun

violence.

That was a quote from the American Civil Liberties Union.

The Consortium for Citizens with Disabilities--and that is a coalition of 100 national disability groups--shares the same concerns about regulations, and I will quote from them:

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.

In other words, those unfounded assumptions are about who might be disabled or not.

I ask unanimous consent to have these letters printed in the Record.

Mr. President, some of the supporters of the new gun ban have brought forth arguments to try to discredit the other side. They have said that repealing the agency rule will allow the mentally ill to acquire firearms.

Let me tell you why that is not true. Under this regulation, the Social Security Administration never, ever determines a person to be mentally ill before reporting them to this gun ban list. It does not provide due process before reporting them to the list. Once the agency places a person on this disorders list, it then moves to assign a representative payee. But that is a very flawed process as well.

The former Social Security Administration inspector general said the following last year in testimony before a committee about assigning a representative payee. This will be a very short quote from the inspector general: ``It's not a scientific decision; it's more of a personal opinion.''

It is quite obvious under our Constitution's due process clause that the personal opinion of a bureaucrat cannot be the basis for taking away a person's Second Amendment rights.

Further, a June 2015 internal Social Security report found significant shortcomings in the representative payee process, namely that--and I will quote from the Social Security report--``the Social Security Administration's capability determinations were undeveloped, undocumented, or insufficiently documented.''

A very legitimate question can be raised: How can any of us be comfortable allowing our fellow citizens to be subjected to such a process, a process that leads to the violation of constitutional rights? The regulation does not then require a formal hearing at any point.

Federal law and other regulations require that a formal hearing take place.

Mr. President, 18 U.S.C. 922(d)(4) requires adjudication before depriving someone of the right to own a firearm due to mental illness. There can be no adjudication if there is no hearing.

A 1996 ATF Federal Register Notice says ``the legislative history of the Gun Control Act makes it clear that a formal adjudication is necessary before firearms disabilities are incurred.''

The Obama administration knew that fundamental rights required constitutional due process. At the bare minimum, that requires a hearing. Yet, in this rule, no hearing is being afforded to that individual that will eventually have their constitutional rights abrogated. Of course, that ought to be considered not only a travesty but a travesty on the Constitution as

well. The constitutional due process is entirely nonexistent because there is absolutely no opportunity for an individual to challenge the proceedings against them.

The American Civil Liberties Union has echoed the same concerns, stating that ``the rule includes no meaningful due process protections prior to the Social Security Administration's transmittal of the names to the National Instant Criminal Background Check System database.''

The Second Amendment is very much being tossed aside without a formal dispute process to challenge the action before the constitutional right is abridged. On these facts alone, the regulation should be repealed. Yet there is more.

The regulation fails to establish that a person is a danger to themselves or a danger to others before taking away the constitutional rights the Second Amendment allows. If a rule premised on safety is to have any credibility, one would obviously think that the government needs to prove a person is dangerous, but this rule fails in that regard because it does not require the agency to find a person is, in fact, dangerous. The Second Amendment is a fundamental right requiring the government to carry the burden showing a person has a dangerous mental illness. This regulation obviously and simply does not achieve that requirement.

To be clear, however, if this regulation is repealed, Federal gun prohibitions will still exist. Individuals who have been determined to be a danger to themselves or others will still be prohibited from purchasing firearms. Also, individuals who are found to have a dangerous mental illness will be prohibited from purchasing a firearm. A person convicted of a felony or a misdemeanor crime of domestic violence will still be prohibited from purchasing, owning, and possessing a firearm. The same is true for those involuntarily committed to a mental institution.

As government expands, liberty contracts. It follows that with the expansion of government, power is centralized here, in this island surrounded by reality that we call Washington, DC, rather than with the American people. Often with that centralization of power, fairness does not necessarily follow, as demonstrated by this regulation. This Obama- era regulation is a perfect example of government wielding too much power--the power to deny people due process, the power to deny people their constitutional rights under the Second Amendment.

The process described herein is extremely problematic and necessitates being done away with by the passing of this resolution of disapproval. It is not clear that any of these disorders a person is labeled with has anything whatsoever to do with a person's ability to responsibly own a firearm, and there is insufficient due process to ensure that a person actually has a given disorder that would interfere with their safe use of a firearm. Notably, even if a representative payee has been assigned, the individual still maintains the capacity to contract.

Thus, the government is subject to a very low threshold to report names to the gun list and no burden of proof is required. By contrast, under this regulation, those who are reported to the list must prove the negative. They have to prove that the government is wrong. They must prove they are not a danger in order to get their name off that gun ban list. For the government to shift the burden to the citizen whose rights are being deprived is clearly unfair and unconstitutional. The failure to determine if a person is mentally ill or a danger to self or others is a material defect to this regulation, as is the failure to afford constitutional due process. There is no reasonable basis under this regulation to justify abridging that very important, fundamental constitutional right, and that is why this regulation must be repealed through the passage of this resolution of disapproval.

I yield the floor.

Order for Recess

Mr. President, I ask unanimous consent that the Senate recess from 12:30 p.m. to 2:15 p.m. today.

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.

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.