Sounds boring, right? The problem is that if they are officers, their appointments have to be approved by the President. ALJs would all serve at the pleasure of the President. Got your attention now?
Under the appointments clause of the Constitution, "officers" must be appointed by the President. Employees are not appointed by the President and are protected by civil service rules. ALJs have not been appointed by the President and are protected by those civil service rules. The difference between an officer and an employee is the degree of independent authority exercised.
"Officers" need not be confirmed by the Senate. There is a corps of about 7,000 members of the Senior Executive Service (SES) who are considered "officers" in the federal government who must be appointed by the President but who are not confirmed by the Senate. They hold, well, senior positions at agencies. The confirmation is mostly a formality. Agencies send over lists of SES appointments for routine Presidential sign-off. However, the President can always refuse to sign-off on an SES appointment or insist that a certain person get an SES appointment or insist that a person holding an SES position by removed from his or her position. Political appointees can do the same to the extent that an SES office holder work for them.
Under the appointments clause of the Constitution, "officers" must be appointed by the President. Employees are not appointed by the President and are protected by civil service rules. ALJs have not been appointed by the President and are protected by those civil service rules. The difference between an officer and an employee is the degree of independent authority exercised.
"Officers" need not be confirmed by the Senate. There is a corps of about 7,000 members of the Senior Executive Service (SES) who are considered "officers" in the federal government who must be appointed by the President but who are not confirmed by the Senate. They hold, well, senior positions at agencies. The confirmation is mostly a formality. Agencies send over lists of SES appointments for routine Presidential sign-off. However, the President can always refuse to sign-off on an SES appointment or insist that a certain person get an SES appointment or insist that a person holding an SES position by removed from his or her position. Political appointees can do the same to the extent that an SES office holder work for them.
Since none of the ALJs on duty now have been approved by the President, all actions they have taken may be considered ultra vires, to use the legal term for "beyond their powers."
If ALJs, as presently appointed, are found to be unconstitutional, the President could decide on which of the current ALJs he wants to keep and which he wants to leave. He could fire any of them at any time if they displease him. They could be ordered about pretty much as the President desires.
If ALJs, as presently appointed, are found to be unconstitutional, the President could decide on which of the current ALJs he wants to keep and which he wants to leave. He could fire any of them at any time if they displease him. They could be ordered about pretty much as the President desires.
Basically, if the President's position is upheld, the independent ALJ corps as we have known it is dead.
Why would anyone argue for Presidential appointments of ALJs? If you have an ALJ decision you disagree with, you might want it overturned on the grounds that the ALJ who decided it had no legal authority to decide it. You might make the argument if you want all disputes you have with the federal government decided in a completely political manner. More importantly, you would make this argument if, like Steve Bannon, you wanted to "deconstruct the administrative state," by which you meant returning the federal government to some supposed state of nature after it has been drowned in a bathtub to use Grover Norquist's words. Given the growth of the American economy and population, I think that would bring about what could only be described as anarchy, although the more accurate term might be anarcho-capitalism, which really is a thing. Today's Republican party is rapidly becoming an openly anarcho-capitalist party.
What would follow if ALJs as presently appointed are found to be unconstitutional? Maybe, they continue to be hired in much the same way as now but their appointments are routinely approved by the President and there's no interference with their exercise of judgment. Maybe, Trump starts picking individual ALJs to be fired based upon what he heard on Fox and Friends that morning. Maybe, there will be a wholesale turnover of ALJs with each Presidential Administration. Maybe, appointments of ALJs become openly political. Maybe, ALJs are routinely told by those holding political appointments what decisions they must make. Maybe, Social Security ALJs are told they must not approve more than some set percentage of disability claimants. God only knows.
Why would anyone argue for Presidential appointments of ALJs? If you have an ALJ decision you disagree with, you might want it overturned on the grounds that the ALJ who decided it had no legal authority to decide it. You might make the argument if you want all disputes you have with the federal government decided in a completely political manner. More importantly, you would make this argument if, like Steve Bannon, you wanted to "deconstruct the administrative state," by which you meant returning the federal government to some supposed state of nature after it has been drowned in a bathtub to use Grover Norquist's words. Given the growth of the American economy and population, I think that would bring about what could only be described as anarchy, although the more accurate term might be anarcho-capitalism, which really is a thing. Today's Republican party is rapidly becoming an openly anarcho-capitalist party.
What would follow if ALJs as presently appointed are found to be unconstitutional? Maybe, they continue to be hired in much the same way as now but their appointments are routinely approved by the President and there's no interference with their exercise of judgment. Maybe, Trump starts picking individual ALJs to be fired based upon what he heard on Fox and Friends that morning. Maybe, there will be a wholesale turnover of ALJs with each Presidential Administration. Maybe, appointments of ALJs become openly political. Maybe, ALJs are routinely told by those holding political appointments what decisions they must make. Maybe, Social Security ALJs are told they must not approve more than some set percentage of disability claimants. God only knows.
Never been a fan of lifetime appointments anyway so it works for me. After 4 to 8 years most ALJs are jaded anyway.
ReplyDeleteIt works alright. Politicize the living hell out of the process. Complete political control over process. Works really well if you want to live in a banana republic or Putin's Russia.
ReplyDeletetrade in your local ALJ for the great orange ALJ fuhrer in the sky! Maybe we can bring in the great Orange Leader by video to intervene in all claims and give a final verdict after the evidence is heard. Now that would be big brother in action! Thank God our great Orange Father is all knowing and all seeing!
ReplyDelete10:21 - I think you willfully misunderstand the ALJ system. ALJs can do not hold a lifetime appointment. They can be fired for good cause like any other employee. It just takes a different process from most other federal employees. Perhaps You're thinking of federal judges who do get a lifetime appointment? If you're "not a fan" of that, take it up with the constitution. Perhaps you're not a fan of people learning and getting better at their jobs over time, in general. I hope that serves you well as you hire newly-minted lawyers, doctors, mechanics, plumbers, etc. Heck, at least they won't be jaded with experience!
ReplyDeleteI remember there were concerns over SEC's ALJs being officers or employees raised at argument before the District of Columbia Court of Appeals in Raymond J. Lucia Cos. v. SEC. Particularly, I recall the SEC's position, that ALJs are employees, was a huge problem with the appointments clause. One judge particularly noted this could cause a massive issue for SSA's ALJs which outnumber SEC's ALJs.
ReplyDeleteLOL yeah they fire ALJs all the time! Best Christmas joke of the season 10:21!!!
ReplyDeleteYou mention Bannon's political goals. Please remember Bannon is a surrogate for the high frequency trader Robert Mercer who funds Brietbart. I imagine the Koch bros who got Mike Pence on the ticket love this also. The very wealthiest in our society are taking everything back.They want a return to the pre-progressive era where they own and control it all lock stock and barrel. If you are a wage slave you will receive your subsistence as long as you are useful. When you get old or sick and can no longer benefit the owners it's your problem. Crawl off and die somewhere.
ReplyDeleteI don't think the Republicans are anarchists of any kind. I think they're the opposite, authoritarians. Making the ALJs officers gives more power to the "leader," so that could explain the administration's position. Republicans want to give more power and money to the wealthy and corporations, and only want to greatly shrink the part of the government that helps everyone else. They sure don't want to reduce the role of the police and military, they haven't dropped their opposition to abortion, or moved to decriminalize drug use; they still support copyrights and patents and the many other ways the government helps corporations.
ReplyDeleteIf the great predicted future Democratic surge ever takes place, the fiscal conservatives, social conservatives, and the nationalists will be weeping in the streets and the cause of their frustration is going to be this administration and Congress.
ReplyDeleteFilibuster to block the adoption of national health insurance? Sorry fellas you've gutted the filibuster.
Using the blue sheet to block appointment of judges? Hahaha you tore that tradition up.
Blocking SES appointments and tossing folks out for the wrong political leanings and maybe now ALJ's as well? Enjoy a world of the spoils system with the civil service system basically gutted.
Tradition and playing by the rules of tradition kept liberal policies in check 1960-68, 76-80, 92-00, 2008-16 just sit back and watch what happens if the Democrats manage to control both houses of Congress and the White House with no need to compromise to head off a filibuster to block legislation and appointments.
Ask the good conservatives across the pond how easy it is to take away government domestic spending once it starts.
Class action to re-adjudicate all denials for the last 30 years!! Whoo goo, I'll be rich and retired by the time they get 20 percent through the backlog. Be careful what you wish for.
ReplyDelete@9:12
ReplyDeleteWhat about the approvals though? If the ALJs had no authority because the president did not appoint them, was everyone who was ever paid SSD or SSI at the ALJ level overpaid? Somehow I can't see that working out.
Usurper Gorsuch will be especially receptive to the DOJ's new position.
ReplyDeleteIn the first instance, ALJs would not be appointed or removed by the President, but rather Commissioner of Social Security. Presumably it would be at will removal though pursuant to S.Ct. holding in Free Enterprise.
ReplyDelete