On the recordFebruary 14, 2017
I agree with my friend and colleague from Pennsylvania. If the Social Security Administration were to amend the rule to include the front-end due process and a finding of dangerous mental illness, that would be a fundamentally different rule that is not substantially similar. Under the current rule, merely filing for a disability benefit on the grounds of a condition, for example, like anxiety can trigger a permanent deprivation of constitutional rights without any physician or adjudicative body finding the person is dangerously mentally ill. I certainly agree with the concerns raised by my friend and our colleague from Pennsylvania that the rule he is describing would not be substantially similar to the rule currently in effect and that would be no bar to the Social Security Administration writing a substitute rule in accordance with the views he has expressed. There may still be a few differences between us in terms of what exactly the rule would be, but there is no distance between us in terms of the conclusion that a replacement rule that provides for due process would not be substantially similar and would not be barred under the Congressional Review Act.
