Obama Admin Proposes New Executive Orders on Gun Background Checks

Are the two actions that the Obama administration announced today legal? Does it matter?

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.

Can the president simply wave away the privacy protections in the Health Insurance Portability and Accountability Act of 1996 (HIPAA)? HIPAA was passed by Congress and signed into law by President Bill Clinton. It specifically protects the following:

Protected Health Information. The Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)."12

“Individually identifiable health information” is information, including demographic data, that relates to:

  • the individual’s past, present or future physical or mental health or condition,
  • the provision of health care to the individual, or
  • the past, present, or future payment for the provision of health care to the individual,

and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.13  Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).

HIPAA may be about to join DOMA among the laws Congress has passed that Barack Obama intends to just set aside because he wants to.

Once word of these proposals spreads, expect to see another spike in gun and ammunition sales.