COMMERCE, JUSTICE, SCIENCE, AND RE- LATED AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2017 WEDNESDAY, JANUARY 20, 2016 U.S. SENATE, SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, Washington, DC. The subcommittee met at 10:08 a.m., in room SD–192, Dirksen Senate Office Building, Hon. Richard C. Shelby (chairman) pre- siding. Present: Senators Shelby, Boozman, Capito, Lankford, Mikulski, Feinstein, Reed, Coons, Baldwin, and Murphy. OVERSIGHT OF THE DEPARTMENT OF JUSTICE’S ROLE IN IMPLEMENTING NEW EXECUTIVE ACTIONS RELATED TO GUN CONTROL STATEMENTS OF: HON. LORETTA E. LYNCH, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE HON. LUTHER STRANGE, ATTORNEY GENERAL, STATE OF ALA- BAMA HON. KEN CUCCINELLI, FORMER ATTORNEY GENERAL, COMMON- WEALTH OF VIRGINIA, AND FOUNDING PARTNER AND ATTOR- NEY, UNITED SELF DEFENSE LAW FIRM MARK BARDEN, FOUNDER AND MANAGING DIRECTOR, SANDY HOOK PROMISE DR. JOYCE LEE MALCOLM, PROFESSOR, GEORGE MASON UNIVER- SITY SCHOOL OF LAW OPENING STATEMENT OF SENATOR RICHARD C. SHELBY Senator SHELBY. This hearing will come to order. Madam Attorney General, we thank you for joining us today to discuss the President’s recent executive actions. As chairman of this subcommittee, I believe that it is my duty to the American people to properly oversee the Department of Jus- tice and ensure that any funding provided by this subcommittee is used as Congress intended and within the bounds of the Constitu- tion. It is clear to me that the American people are fearful that Presi- dent Obama is eager to strip them of their Second Amendment rights. (1) 2 Let me be clear. The Second Amendment is not a suggestion. It is an individual right protected in the Bill of Rights that has been recognized by the Supreme Court. And with that in mind, this morning I am very concerned with the recent executive actions by the President for two main reasons. First, President Obama I believe is far too willing to end run Congress through executive action. The President has said that he believes that when Congress does not act the way he wants us to, then he must act alone. Our Constitution will not allow for this kind of unilateral action, and the American people will not stand for it. Whether through executive amnesty to thousands of illegal immi- grants or increased gun control measures, the President has un- wisely, I believe, acted alone. However, what the President fails to remember is that we have a system of checks and balances, a system that was created to en- sure that power was not concentrated in a single branch of the Federal Government. The President, I believe, has ignored the Founders’ system and has accelerated the use of executive fiat to an alarming new level. Secondly, none of these executive actions that President Obama has proposed would have prevented the recent tragic events in our Nation. Whether it is a terrorist attack or a single gun crime, I firmly believe that those responsible should be held accountable and that we must work to prevent it from happening again. As we have seen time and again, this President uses tragic events to push his political agenda. I believe that he is more inter- ested in grandstanding and engaging in anti-gun theatrics than ac- tually doing the work necessary to protect this country. In the wake of the terrorist attacks in San Bernardino, President Obama did not address our law enforcement’s failures which al- lowed those terrorists to live among us. He also did not look at making changes to our immigration system after it clearly failed us by allowing an individual who should have been known to be a vio- lent extremist to enter our country. Instead, the President’s imme- diate response was to propose additional gun control measures. Let us be clear. Criminals and terrorists are not buying their guns from gun shows, gun stores, or collectors because criminals, by definition, do not follow the law. Madam Attorney General, we live in a dangerous world, as you know, and the American people are looking for us to do everything in our power to keep them safe. The next time a terrorist attack occurs in this Nation, innocent law-abiding Americans must have the ability, I believe, to protect themselves and their loved ones from harm, if they so choose. It is our responsibility, I believe, to preserve their rights and not limit them. I believe most of us know that this President has made no secret of his desire to restrict the Second Amendment rights of law-abid- ing American citizens. The American people deserve and I believe they expect more from their President. They also expect more from their Members of Congress, and I intend to live up to their expecta- tions. 3 Madam Attorney General, the Department is on notice. This sub- committee will have no part in undermining the Constitution and the rights that it protects. Senator Mikulski. STATEMENT OF SENATOR BARBARA A. MIKULSKI Senator MIKULSKI. Thank you very much, Mr. Chairman, and I congratulate you on holding a hearing so quickly in the opening session and taking up the topic or the issue of guns and their ex- cessive availability in our society. This hearing does tackle the very pressing issue of guns and gun violence. On the average, 300 Americans are shot every day. Ninety of them will die, almost a third. We do need to change our Nation’s culture of violence. We do need to stop guns from getting into the wrong hands, the criminals, those with mental illness, without in- fringing on the right of law-abiding citizens to purchase firearms. But know that I do support the President’s measure on guns. He is within his constitutional authority to act and many of these ac- tivities like adding more FBI and ATF agents have been strongly supported by this subcommittee. I think last year’s omnibus under your chairmanship, sir, really showed our commitment to enforcing the existing laws and providing the staff in order to do it. I do look forward to hearing Attorney General Loretta Lynch’s testimony today on the President’s recent announcement on guns and the impact it will have on the American people and whether it will make us safe. No mincing, no message, no talking points. Will it really help the American people? Are we within our con- stitutional boundaries? We do respect the Constitution and also, though, its impact on the Justice Department’s ability to deal with this. We also will listen to the testimony of outside witnesses on the second panel. These are excellent people who are well seasoned, well experienced, then also a father who will talk about the grim things that happened at Sandy Point. No one is immune from gun violence, whether you are a Con- gresswoman trying to meet with your constituents named Gabby Gifford, whether you are children going to elementary school in a wonderful suburban community called Sandy Hook, whether you are just simply going to the movies or going to a community college or sitting in a Charleston church of iconic nature in the civil rights struggle to study the Lord’s word and welcome in a stranger to end in such a terrible tragedy. Our President was at that funeral, as he has been at so many, and what he says, we have to do some- thing. So we look forward to this and we look forward to what the President’s proposals will be in the new year, the budgetary rec- ommendations that he puts behind it. We are appropriators. We look forward to the President’s recommendation. I am particularly interested in strengthening the National Instant Criminal Back- ground Check System (NICS). There are backlogs. There are tech- nological glitches. People who want to go by the law are frustrated. We have to enhance the FBI’s capacity to run background checks while we are asking them to do a lot of other background checks. Are there new ways to do this and to train local law enforcement? 4 But this is not only a Justice Department problem. I just left the HELP Committee hearing where we are holding a hearing on men- tal illness. And for so many people who are victims of gun violence, the volatile combination of mental illness and access to guns is dangerous. Mr. Chairman, I look forward, though, not to me talking and lis- tening to myself but listening to the Attorney General and listening to this wonderful panel that you have invited to participate today. So let us solve the problem. Let us not get involved in constitu- tional arguments, and let us help our American people be safe and secure in their home, their neighborhood, their school, and their house of worship. Senator SHELBY. Madam Attorney General, welcome to the sub- committee again. Your written testimony will be made part of the hearing record. You proceed as you wish. STATEMENT OF HON. LORETTA E. LYNCH, ATTORNEY GENERAL, DE- PARTMENT OF JUSTICE Attorney General LYNCH. Thank you, Mr. Chairman. Good morn- ing, Chairman Shelby, Vice Chairwoman Mikulski, and the distin- guished members of this subcommittee. I greatly appreciate this opportunity to appear before you today to discuss the steps that the Department of Justice is taking to reduce gun violence and to en- sure smart and effective enforcement of our Nation’s gun laws. Now, of course, as this subcommittee well knows, our Nation faces an epidemic of gun violence that has taken a devastating toll on communities throughout the country. Each and every year, tens of thousands of Americans are injured or killed by firearms in armed robberies, domestic disputes, tragically suicides, accidents, shootouts, and heinous acts of mass violence. From law enforce- ment officers shot down while defending their communities, to chil- dren killed in tragic accidents, our friends and family members, our neighbors, our fellow citizens are being taken from us day after day after day. As the list of tragedies involving firearms has grown, so has the American people’s belief that we must do more to stem the tide of gun violence, and this administration is committed to doing our part. The executive actions that the President announced 2 weeks ago, including the measures that I recommended to him, are essen- tial components of this effort. They are important steps that are within the executive’s power to clarify existing legal provisions, to focus enforcement efforts, and to spur innovation. I have complete confidence that the common sense steps an- nounced by the President are lawful. They are consistent with the Constitution, as interpreted by the Supreme Court, and the laws passed by Congress. For example, the Gun Control Act lists the people who are not allowed to have firearms, such as felons, domes- tic abusers, and others. Congress has also required that back- ground checks be conducted as part of sales made by federally li- censed firearms dealers to make sure that guns stay out of the wrong hands. The actions announced by the President, which focus on background checks and keeping guns out of the wrong hands, are fully consistent with the laws passed by Congress. 5 Taken together, the new executive actions will bring progress on a number of fronts. By clarifying what it means to be ‘‘engaged in the business’’ of dealing firearms, we raise awareness of and en- hance compliance with laws that are already on the books. By issuing new regulations, we ensure that licensed dealers who ship weapons will report them if they are lost or stolen in transit, and that those trying to acquire some of the most dangerous weapons through trusts or corporations undergo background checks. By en- hancing our national system of background checks, we will be bet- ter prepared to keep guns out of the wrong hands in the first place. By increasing access to mental health care treatment with a pro- posed $500 million investment to the Department of Health and Human Services, also referred to as HHS, we will not only be help- ing those in need, but we will also be curbing gun deaths, the ma- jority of which tragically result from suicide. And by supporting re- search on gun safety technology, we will be laying the groundwork for a safer future and drawing on our strength as the most techno- logically advanced nation on earth. The steps that I have outlined and the actions that President Obama has described are all well reasoned measures well within existing legal authorities and built on work that is already under- way. They clarify laws that are already on the books because clear notice will help ensure that those laws are followed. They direct important resources to our law enforcement agents because these men and women deserve to have the support they need to do their difficult jobs effectively. And they lay the groundwork for State governments to more easily provide information to our background check system and for helping people with mental illness gain access to care because in addition to helping people get the treatment they need, we must make sure we keep guns out of the hands of those who are prohibited by law from having them. And they invest in research and promising technology that will make weapons safer because problem solving through innovation has always been one of our country’s greatest strengths. Mr. Chairman, Vice Chairwoman Mikulski, I am confident that these actions will help to make our people safer, our communities more secure, and our law enforcement more effective. But I also have no illusions that these measures by themselves will end gun violence in America. At a time when there is so much work to be done and so much capacity for progress, there are many areas where only Congress can act. We would welcome the opportunity to work with you to further these goals. And that is why I am so grateful to have this opportunity to speak with you today about how we can work together to reduce gun violence in this country, and I look forward to continuing this conversation in the days ahead as we discuss how to keep our promise to protect and defend every American’s right to safety and security and to life and lib- erty. At this time, I look forward to answering any questions you may have. Thank you. [The statement follows:] 6 PREPAREDSTATEMENTOFHON. LORETTAE. LYNCH Good morning, Chairman Shelby, Vice Chairwoman Mikulski, and distinguished members of the subcommittee. I appreciate this opportunity to appear before you today to discuss steps the Department of Justice is taking to reduce gun violence and ensure smart and effective enforcement of our Nation’s gun laws. As this subcommittee well knows, our Nation faces an epidemic of gun violence that has taken a devastating toll on communities throughout the country. Each and every year, tens of thousands of Americans are injured or killed by firearms—in armed robberies, domestic disputes, suicides, accidents, shootouts, and heinous acts of mass violence. From law enforcement officers shot down while defending their communities, to children killed in tragic accidents, our friends and family members, neighbors and fellow citizens are being taken from us—day after day after day. As the list of tragedies involving firearms has grown, so has the American peo- ple’s belief that we must do more to stem the tide of gun violence—and this admin- istration is committed to doing our part. The executive actions that the President announced 2 weeks ago, including the measures I recommended to him, are essen- tial components of our effort. They are important steps that are within the Execu- tive’s power to clarify existing legal provisions, focus enforcement efforts, and spur innovation. I have complete confidence that the common sense steps announced by the Presi- dent are lawful. They are consistent with the Constitution as interpreted by the Su- preme Court and the laws passed by Congress. For example, the Gun Control Act lists the people who are not allowed to have firearms—such as felons, domestic abusers, and others. Congress has also required that background checks be con- ducted as part of sales made by federally licensed firearms dealers to make sure guns stay out of the wrong hands. The actions announced by the President, which focus on background checks and keeping guns out of the wrong hands, are fully con- sistent with the laws passed by Congress. Taken together, the new executive actions will bring progress on a number of fronts. By clarifying what it means to be ‘‘engaged in the business’’ of dealing fire- arms, we raise awareness of and enhance compliance with laws that are already on the books. By issuing new regulations, we ensure that licensed dealers who ship weapons will report them if they are lost or stolen in transit, and that those trying to acquire some of the most dangerous weapons through trusts or corporations un- dergo background checks. By enhancing our national system of background checks, we will be better prepared to keep guns out of the wrong hands in the first place. By increasing access to mental healthcare treatment with a proposed $500 million investment to the Department of Health and Human Services (HHS), we will not only be helping those in need, but also curbing gun deaths—the majority of which result from suicide. And by supporting research on gun safety technology, we will be laying the groundwork for a safer future and drawing on our strength as the most technologically advanced nation on Earth. These actions will involve important investments in the Federal Bureau of Inves- tigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) over the course of fiscal years 2016 and 2017—some of which have already been ap- propriated, and some of which will be requested in the coming year. This year, the FBI will be dedicating $6.6 million to begin filling 230 new positions to support the National Instant Criminal Background Check System (NICS), which we are cur- rently working to transition to a round-the-clock service. ATF will be investing $4 million to enhance the capabilities of its National Integrated Ballistic Information Network (NIBIN), including support for the National NIBIN Correlation and Train- ing Center in Huntsville, Alabama, which is set to open in February 2016. In fiscal year 2017, the President’s budget will request $80.3 million to sustain and expand upon these critical investments. When the budget submission is deliv- ered to Congress on February 9, the FBI’s request will include $35.0 million to sus- tain the fiscal year 2016 NICS expansion, enabling the Bureau to increase the num- ber of personnel processing firearms background checks and enhance the recruit- ment and retention of the personnel in these critical jobs. ATF’s request will include $35.6 million for an additional 200 Special Agents and Industry Operations Inves- tigators—vital personnel who will enforce existing Federal firearms laws, take vio- lent criminals off the street, prevent firearms from getting into the wrong hands, and enhance ATF’s ability to perform its regulatory duties. ATF will seek to invest an additional $4.0 million in NIBIN above the fiscal year 2016 funding level to sup- port additional staff hiring, and $5.7 million to help process Federal firearms license applications and National Firearms Act applications, as well as to support gun crime tracing—a critical service provided to Federal, State, and local law enforce- ment across the country. 7 The steps that I have outlined—and the actions that President Obama has de- scribed—are all well-reasoned measures, well within existing legal authorities, built on work that’s already underway. They clarify laws that are already on the books— because clear notice will help ensure that those laws are followed. They direct im- portant resources to our law enforcement agents—because these men and women deserve to have the support they need to do their difficult jobs effectively. They lay the groundwork for State governments to more easily provide information to our background check system and for helping people with mental illnesses gain access to care—because in addition to helping people get the treatment they need, we must make sure we keep guns out of the hands of those who are prohibited by law from having them. And they invest in research and promising technology that will make weapons safer—because problem-solving through innovation has always been one of our country’s greatest strengths. I am confident that these actions will help to make our people safer, our commu- nities more secure, and our law enforcement more effective. But I also have no illu- sions that these measures by themselves will end gun violence in America. At a time when there is so much work to be done and so much capacity for progress, there are many areas where only Congress can act. We would welcome the oppor- tunity to work with you to further these goals. That’s why I am so grateful to have this opportunity to speak with you today about how we can work together to reduce gun violence in this country. And I look forward to continuing this conversation in the days ahead as we discuss how to keep our promise to protect and defend every American’s right to safety and security, and to life and liberty. At this time, I’d be glad to answer any questions you may have. Senator SHELBY. Thank you. CONSTITUTIONAL RIGHTS Madam Attorney General, as I said earlier, the Constitution is not a suggestion. You would agree with that, would you not, that the Constitution of United States is not a suggestion? Attorney General LYNCH. Mr. Chairman, I agree that it is the law of the land and the law that we are all sworn to uphold. Senator SHELBY. The rights that it conveys to the people of this Nation are not recommendations. You would agree with that, would you? Attorney General LYNCH. Mr. Chairman, I agree with you on that, as well as your previous proposition. Senator SHELBY. And the Constitution, obviously, is—the Second Amendment is part of the Constitution, the Bill of Rights. Right? Attorney General LYNCH. It is an important part of the first set of amendments, that Bill of Rights. Senator SHELBY. And do you believe that the rights granted by the Second Amendment are equally as important as those granted by the First Amendment and the Fourth Amendment, the Fifth Amendment, the Seventh Amendment and so forth? Would you say that it is all an integral part of the Constitution? Attorney General LYNCH. Senator, I believe the Bill of Rights and the subsequent amendments are, indeed, an integral part of the Constitution, as well as the case laws that seek to interpret them. Senator SHELBY. Okay. Madam Attorney General, you say that you worked closely with the President to craft these executive actions to go as far as the President can legally go without overstepping. While we may dis- agree about whether or not the President has overstepped—and I am sure we would—I am concerned that the President is slowly, slowly chipping away at our Second Amendment rights. Can you guarantee us, Madam Attorney General, that there is legal author- 8 ity for the President to take the actions that he has taken? And can you provide the specific laws or court cases that support the posi- tion? Attorney General LYNCH. Mr. Chairman, with respect to the rec- ommendations that I made to the President, as indicated in my earlier remarks, I believe that they are consistent both with the Constitution and existing case law that interprets the Constitution, specifically the Heller case, handed down by the Supreme Court, that defined the Second Amendment and clarified the individual’s right to bear arms, as well as the agency’s right to promulgate guidance therefrom as well. With respect to the actions taken, I am confident that they are consistent with the laws of the land. They are within the Presi- dent’s authority because they seek to enforce the existing laws. They seek to strengthen the provisions that Congress has directed that we undertake to keep the American people safe, such as the NICS background system. They seek to enhance protections for those who have mental illness, providing greater treatment for them, another goal that I know this subcommittee supports. BACKGROUND CHECKS Senator SHELBY. Each time there is a mass shooting, the issue of expanded background checks reenters the public debate. I think we must look at the facts, and the facts are that most of those ac- tions are carried out by individuals that would not have been pre- vented by obtaining a firearm. The Sandy Hook crimes were com- mitted by a young man who shot his mother and stole her guns. Now, Madam Attorney General, would a background check have prevented that horrible tragedy? The Virginia Tech shooter actually passed a background check to get his guns, much like those that committed similar crimes at Fort Hood, Aurora, Chattanooga, and the list would go on and on. More recently the terrorists responsible for the attacks in San Bernardino obtained their guns through a straw purchase, which means a background check would not have helped them either. Yet, we keep coming back to this issue. Madam Attorney General, could you walk through these exam- ples and tell us how having more Federal firearms licensees would have altered the outcome of those events? Attorney General LYNCH. Mr. Chairman, as I indicated, I do not believe that we are able to look back and find a specific measure that would prevent a specific crime. But that does not mean we must not seek to prevent future tragedies. With respect to strengthening our background system, sadly the NICS system is overwhelmed at this point in time. And of course, as we saw with the tragic shooting in Charleston, that individual’s information was submitted, but because of a series of glitches through experienced and well-meaning examiners, the information needed was not discovered in time to prevent that. The licensed firearms dealers who submit this information de- serve the best and most efficient NICS system that we can provide them. The individuals who submit their information and wait for that response also deserve the most efficient system that we can provide them. And certainly the measures that we are discussing 9 today, for example, increasing the number of examiners for the NICS system, of course, a matter directly related to our appropria- tions, seek to serve that important end. With respect to other tragedies, again, because as I look through the panoply of criminal laws, which give us a way to protect people and vindicate the rights of those who have been the victims of crime, yet have not yet found a way to erase the human condition that leads to crime. We are committed to doing everything we can, looking forward, to making sure that our gun laws are effectively enforced and that our American people are kept as safe as possible. Senator SHELBY. Madam Attorney General, as we look back on some of these tragedies—and they are real tragedies—which of these individuals bought their gun from a gun show and which of these criminals purchased their gun illegally online? I do not be- lieve they did. Did they? Attorney General LYNCH. Mr. Chairman, I am not able to give you that information now. But what I can indicate is that with respect to the clarifications on who is required to seek a license as a federally licensed firearms dealer, that this is in response to inquiries that the Bureau of Alco- hol, Tobacco, Firearms, and Explosives receives on a regular basis as they operate within gun shows to provide information and guid- ance. And they often receive telephonic inquiries as well from indi- viduals seeking to comply with the law who want to know what are the standards, what are the things that determine whether or not they need to, in fact, apply for a license. INTERNET GUN SALES Senator SHELBY. The area of new standards for gun dealers. A recent ‘‘New York Times’’ article states that the President’s plan on gun control would require officials from the Bureau of Alcohol, To- bacco, Firearms, and Explosives to begin contacting gun sellers to let them know of new standards to clarify who would be considered a regulated dealer. The article goes on to suggest that the changes are particularly meant for online gun merchants who avoid con- ducting background checks in spite of making ‘‘high volume gun sales through certain Web sites.’’ Madam Attorney General, the law requires that anyone selling guns for profit, which I believe would be high volume gun sales, to have a Federal firearms license. However, you are quoted in the ar- ticle as saying—the article in the ‘‘New York Times’’—right now, in your words, ‘‘it is really an Internet loophole.’’ Is this really a loophole in the law or it is a failure of enforce- ment? Attorney General LYNCH. Well, Senator, I typically do not com- ment on news articles and would prefer to provide my own re- sponse to that particular issue. With respect to Internet sales, they are increasing. Not only do we see an increase in sales at the typical commercial level, at which the average consumer may, in fact, appropriately buy a number of commodities, including firearms. We also see firearms sales growing on what is called the Darknet, that is the particular part of the Internet not accessible to the average consumer but where illicit transactions are primarily held. These are not trans- 10 actions where average law-abiding citizens are seeking to acquire a firearm lawfully and through the traditional process. These are Internet sales where criminals are seeking to acquire firearms through which they can harm our American citizens. This is not a loophole per se, but it is an area of enforcement that the ATF has been focused on. As you indicated, with respect to the individuals who operate at gun shows, flea markets, and the like, there will be an educational component to the guidance. This information will be provided to them. They will be allowed to ask questions. And we believe that this will increase compliance and frankly lessen confusion among those individuals seeking to comply with the law. But where individuals operate on the Darknet, primarily in illicit transactions, it will also put them on notice so that if enforcement actions need to be taken, there can be no discussion that they sim- ply were not aware of this particular provision. COMMUTATIONS AND PARDONS Senator SHELBY. Madam Attorney General, I believe what we really should be talking about, not just here today but across America, is how to keep guns out of the hands of criminals and vio- lent offenders. This is an uphill battle, I believe, if the President continues to focus on eroding Second Amendment rights while com- muting the sentences of criminals with firearm convictions. And while we can debate—and we will debate—the issue of mandatory minimum sentences, the President’s actions to commute sentences of individuals convicted of illegally possessing a firearm is dis- turbing. I do not know, Madam Attorney General, these individuals or why the President feels that they need shorter sentences, but I do know this. This sends a message to criminals that if you commit a crime with a gun, this administration will not be hard on you, perhaps go easy on you. That is the wrong message. Are the President’s actions, Madam Attorney General, not send- ing a mixed message to Americans? One day he issues new execu- tive actions to change gun regulations, and then pardons criminals with gun-related convictions the next day. How can the President and you, the Attorney General representing this administration, say he is committed to using every tool at the administration’s dis- posal to reduce gun violence when his own administrator is not fol- lowing through with the sentences of criminals with gun-related convictions? Does that trouble you? Attorney General LYNCH. Well, Mr. Chairman, I do not know the specific cases to which you refer. Senator SHELBY. We will give you a list of them. Attorney General LYNCH. What I can tell you is that with respect to commutations or pardons, individuals who apply for those are carefully reviewed and carefully vetted, and only after consider- ation of a number of factors. In particular, there has been recent discussion about commutations of nonviolent drug offenders and whether or not those individuals also have firearms convictions. I would need to know the specific case to which you are referring. But with respect to the President’s Clemency Project, for exam- ple, it is a focus on looking at individuals who today would not nec-