Via the office of a Vice President known for giving the self-defense advice of firing two blasts from a shotgun into the air to scare off threats (which can lead to multiple criminal charges in many jurisdictions), the Obama Administration is testing the waters for two new executive orders relating to gun background checks and mental health records:
Vice President Biden’s office announced the proposals Friday afternoon. Both pertain to the ability of states to provide information about the mentally ill and those seeking mental health treatment to the National Instant Criminal Background Check System.
One proposal would formally give permission to states to submit “the limited information necessary to help keep guns out of potentially dangerous hands,” without having to worry about the privacy provisions in a law known as HIPAA.
“The proposed rule will not change the fact that seeking help for mental health problems or getting treatment does not make someone legally prohibited from having a firearm,” the statement said. “Furthermore, nothing in the proposed rule would require reporting on general mental health visits or other routine mental health care, or would exempt providers solely performing these treatment services from existing privacy rules.”
The other proposal would clarify that those who are involuntarily committed to a mental institution — both inpatient and outpatient — count under the law as “committed to a mental institution.” According to the administration, this change will help clarify for states what information to provide to the background check system, as well as who is barred from having guns.
If I understand the separation of powers correctly, HIPAA was passed as a law by Congress, and the Executive Branch does not have the constitutional authority to unilaterally re-write the law by executive fiat.
Please let me know in the comments if I am incorrect.