Congress should rescind Social Security regulation that violates civil rights of those with disabilities

Near the end of the Obama administration, a number of new regulations were published, including one from the Social Security Administration that crossed an unfortunate line. Under recently finalized rules, millions of Americans with a disability, who have shown no propensity to harm others, could be barred from acquiring firearms. This regulation stigmatizes Social Security recipients with a disability who request help to manage their financial affairs. Even worse, it deprives them of their civil rights without due process of law.

Fortunately, the 115th Congress can rescind this discriminatory rule through the Congressional Review Act, which allows the House and Senate to disapprove of a recently-finalized regulation. If the president agrees, the regulation is nullified. On this important issue, members on both sides of the aisle should stand together: individuals with a disability should not be scapegoated to advance gun control.

{mosads}More than eight million Americans with a disability who receive monthly Social Security benefits need assistance to manage their finances. The Social Security Administration allows relatives, friends, or others to serve as their “representative payee,” and directly receive their monthly payments. Through its new regulation, a person with a disability who has a representative payee is now deemed “mentally defective,” and therefore barred from owning, transporting, or possessing firearms, if his or her entitlement to disability benefits stems from any kind of psychiatric disability.

There is no individual adjudication if the person poses a risk to others. Often representative payees are appointed based on “paper” investigations, without any requirement for a hearing or opportunity to challenge the record. This is a blanket rule that is in no sense compelled by federal law. Rather, it was encouraged by a footnote in an unpublished “guidance” document that the Justice Department refuses to release.

By virtue of this regulation, the Social Security recipient’s name is added to the National Instant Criminal Background Check System (NICS). As a result, they would then flunk the background check to acquire a firearm.

Only after their name is added to the database can the decision be appealed. This process, which could take at least a year, forces the recipient to produce evidence, witnesses, and mental health records to justify the removal of her name from the NICS database. Moreover, to remove their name from all parts the database, he or she would have to undergo this process twice: once with the Social Security Administration, and another time with the Bureau of Alcohol, Tobacco, and Firearms.

This regime violates the most basic principles of due process, where the government—and not the individual—bears the burden of proof before depriving individuals of legally protected rights. Regardless of what one thinks of the overall gun control agenda, it is unconscionable to stigmatize and impose this onerous burden on innocent Americans with disabilities.

Beyond the constitutional infirmities, the rule is utterly unsound as a matter of policy. There is no link between gun violence and the types of disability targeted by the new regulation. In fact, a 2009 study of over 34,000 people showed that psychiatric disability alone did not increase the risk of any sort of violence, after controlling for factors such as past history of violence or substance abuse. Nor is there any evidence that other mental disabilities—such as intellectual disability or traumatic brain injury—are associated with violence. Rather, people with psychiatric disabilities are far more likely to be victims of violence than perpetrators, with a victimization rate of up to 11 times that of the general population. This rule is premised on the unfortunate and antiquated stereotypes that persons with a disability are dangerous, and they must be further isolated from civil society.

Critically, the appointment of a “representative payee” in no way reflects on an applicant’s propensity to harm others. The law governing representative payees explicitly allows the Social Security Administration to appoint representative payees “regardless of the legal competency or incompetency of the qualified individual,” whenever it thinks that doing so is in the beneficiary’s best interests. 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 his or her affairs, and have no impairment of her ability of keep a firearm at home. But due to specific conditions, she benefits from having a representative appointed to handle Social Security payments. People with disabilities, who pose no harm to others, should not be forced to forego any of their protected rights as a condition of receiving federal benefits.

Targeting this population for placement on the NICS registry will not make us safer. Instead, it punishes and stigmatizes individuals for getting help with managing their benefits. This unfounded stigma can result in serious consequences. Many security, construction, transportation, and other similar businesses often require clearance through the NICS database, even for jobs that do not directly require the individual to handle explosives or carry a gun. Even if the representative-payee is appointed temporarily, an individual may be permanently barred from returning to the work force. Further, for those who enjoy hunting or other outdoor sports, placement on the registry can result in lost social and recreational opportunities—a grave consequence in light of the fact that people with psychiatric disabilities already suffer disproportionately from isolation.

Although the appropriate response to gun violence can be a divisive question, these new regulations should alarm civil rights advocates. We must not respond to gun violence by scapegoating the disability community. Advocates across the political spectrum should come together and oppose this misguided regulation.

Samantha Crane is an attorney and Director of Public Policy at the Autistic Self Advocacy Network. Dara Baldwin is the Senior Public Policy Analyst at the National Disability Rights Network. Josh Blackman is a constitutional law professor at the South Texas College of Law, Houston, and an adjunct scholar at the Cato Institute. Each filed a comment opposing the Social Security Administration’s proposed rule.