Let me repeat something that I posted late Friday. The Supreme Court has granted a writ of certiorari in Lucia v. SEC, meaning they will hear the case. Lucia concerns whether Administrative Law Judges (ALJs) as presently
appointed are constitutional. The Trump Administration is arguing that
they aren't. This case may be heard in this term of the Supreme Court, meaning there may be an opinion by the end of June!
Let me give a preview of what will happen if the Supreme Court rules that ALJs as presently appointed are unconstitutional. All ALJ hearings must stop. All ALJ decisions must stop. All cases pending at the Appeals Council must be remanded to whatever class of personnel will be hearing cases in the future. All Social Security cases pending in the federal courts must be remanded for new hearings.
There is only one way to prevent even some of this chaos. That would be to have the President sign off on appointments for each of Social Security's present ALJs and to do so quickly. That would allow ALJs to continue holding hearings and issuing decisions. It wouldn't do anything about the remands of cases pending at the Appeals Council and the federal courts but there's nothing to be done about that. There have already been presidential appointments for the ALJs at the Securities and Exchange Commission (SEC) where this lawsuit began. All that would be required is for someone to prepare a document saying "I, Donald Trump, hereby appoint the following individuals as ALJs", followed by a list of the ALJs and for Trump to sign the document. Of course, for this to happen, we'd have to have a responsible President, so I'm not expecting it.
The premise the Trump administration is supporting in Lucia is that a Presidential appointment is required by the appointments clause of the Constitution. If you're a lawyer and can't quite remember the appointments clause, don't feel bad. It's about as unimportant a part of the Constitution as you can find. Here it is:
He [the President] ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Tho argument is that Social Security ALJs are "inferior Officers" who must be subject to appointment by the President. Social Security, not being a department, has no "head of department" to make the appointment. What makes an employee an "inferior Officer"? How many angels can dance on the head of a pin?
I find this lawsuit ridiculous. There's no statute that says that ALJs must not be subject to Presidential appointment. All that would be required to move them from civil service to presidential appointment status would be some changes in regulations at the Office of Personnel Management which the President could easily order. Since there's no obvious test of what makes a position one which must be held by an "inferior Officer", shouldn't the courts defer to the determinations made by Presidents? The President is the one who's supposed to try to make the executive branch work. Why should the courts be second guessing them on this? Even though this is part of the Constitution, it's not like it's enshrining some high principle. If the courts must defer to executive branch interpretations of statutes (the Chevron doctrine), isn't it clear that they should also defer to executive branch determinations of what jobs are and aren't "inferior Officers"? Should the Court find ALJs as presently appointed unconstitutional, aren't they inviting endless lawsuits about the authority of other executive branch employees?
20 comments:
the head of the respective department (in ssa's case "agency" head is the acting commissioner) should be able to sign off/certify the ALJs. the argument being they have the delegated authority to do so by being executive heads of the particular department/agency. the SEC recently took this step. this would seem sufficient until Supremes ultimately decided the issue/cases.
if the Supremes ultimately say the current structure is not correct, then agency heads would just do direct hires for AAJs. so ssa's ALJs would be hired directly via the commissioner the same as AAJs.
--I don't think the sky is falling over this one.
I was unaware that there were any parts of the Constitution that were "unimportant."
10:23 AM correction:
if the Supremes ultimately say the current structure is not correct, then agency heads would just do direct hires for "ALJs"
I don't understand why the administration filed the lawsuit in the first place? What's their end game here if they prevail? Is it to hire ALJs that fit a certain political persuasion? Get rid of ALJs altogether? I'm missing the motive here.
The Solicitor General, in his brief urging the S.Ct. to grant cert (and reversing without any real explanation the government's position in the litigation), also asked the Court to address an issue raised by neither party: whether ALJs could be removed by the President regardless of any statutory scheme that provides for protection from discharge, i.e. for good cause established by the MSPB.
This case is about the Trump administration's attempt to dismantle the administrative state, particularly when it comes to regulating its friends on Wall Street.
It is also interesting to note that the Solicitor General appears to be unaware that the vast majority of federal ALJs are employed by the Social Security Administration:
Given the frequency with which ALJs are employed
in administrative proceedings by a variety of federal
agencies, see, e.g., 7 C.F.R. 1.144, 1.411(f ) (Department
of Agriculture); 12 C.F.R. 1081.103 (Consumer Financial
Protection Bureau); 18 C.F.R. 385.102(e), 385.708
(Federal Energy Regulatory Commission); 29 C.F.R.
102.35 (National Labor Relations Board); 40 C.F.R.
22.3(a), 22.4(c) (Environmental Protection Agency), this
Court’s resolution of the question presented is necessary
to prevent the same disruption that has affected
the Commission’s proceedings from spreading throughout
the government.
The case pending has to do with SEC ALJs, so it is not clear that any decision in that case would apply to SSA ALJs.
According to the question presented, the court has to do a factual analysis to determine if SEC ALJ's are inferior officers, and if they are they need to be appointed. This factual analysis would not apply to SSA ALJs since they have different duties.
3rd amendment
@12:54
I'm not sure if it is ignorance, or an intentional attempt to not address the elephant in the room. It is practically the only major agency not listed by the government in their brief, yet this was a stated concern by the DC Circuit at the en banc argument, with the judges concerned the chaos it would wreck on SSA if the appointments structure was struck down.
@1:17
Both agencies are under the Administrative Procedures Act, and both used the same process for hiring ALJs. Any holding would likely be applicable to SSA ALJs.
@2:56
Ha! I agree, although I would argue the 18th is only slightly more unimportant.
12:43: the government didn't file the lawsuit. The government lost the lawsuit, then appealed, and, after Trump was elected, reversed its position.
As others have said, the day after Justice filed its brief the SEC issued a 2 page letter ratifying the appointment of its ALJ's to conform to the appointments clause and resumed hearing cases in the 10th circuit (where they had lost before the circuit court). Given the timing, this was clearly done in coordination with Justice. Since the SEC is also not a "department" presumably a similar letter could be issued by the acting Commissioner if the Supremes agree with the government's position (though 1500 some odd names will take longer than 2 pages). No action is needed directly by the President, inferior officers are appointed all the time by department heads and those appointments conform to the constitution.
The real issue here would be the impact classifying ALJ's as inferior officers will have on the ability of the Agency to remove them and whether the current Merit Service Protection Board protections will no longer apply.
5:05PM, exactly.
worst case, ALJ would be part of some restructured direct agency hiring process--may have to re-write some regs to confirm/highlight qualified independence of these adjudicators given they are on the front lines making findings of fact.
If ALJs are found to be unconstitutional, then all of the pay cases are voided just like the denials.
@7:53
In theory, yes. However, I am not certain what would prevent the Administration from just glancing at the prior determination, and affirming it. Faced with an incredible amount of cases needing re-adjudication (i.e. all of them), that is not an unlikely scenario. If they affirm a prior award, there would be little dispute. If they affirm a prior denial, that could lead to litigation. That's why the result of this change would likely be lop-sided.
I wish my memory was better but when we were working on breaking away from HHS to become independent, this issue was raised and reviewed by the lawyers on both sides in setting up SSA's independence. It wasn't my direct area but folks I worked with had it on their list. Because this conversation about how and impact regarding ALJs sounds eerily familiar. But I guess the Supremes will decide.
If ALJs are found to be inferior officers, can they unionize? I don't think so. Not only is this an attack on the independence of administrative judges, but likely this is also an attack on the union structure of SSA ALJs. We know how republicans loathe collective bargaining, or really anything that gives workers even a modicum of protection.
dont see why aljs still couldnt unionize unless they are all placed as management officials. but would be a stretch to make that kind of argument. bigger question is what kind of pull will union have if alj position is recategorized?
also as someone mentioned earlier, alj independence is qualified.
A crooked stocks swindler got fined and had profits clawed back by an SEC ALJ who used to be an ODAR ALJ ten years ago.
The crooked stocks swindler appealed and appealed but finally lost his case in the DC Circuit.
Another set of crooked stocks swindlers also got clawed by another SEC ALJ. They filed in the 10th Circuit (hello, Neil Gorsuch!), but they had their case argued by Paul Clement, the I-hate-the-Affordable-Care-Act guy. They won. Not because they weren't crooks, but because they argued that SEC ALJs were unconstitutional.
Circuit Court split.
Tr*mp's new Solicitor General reversed course and no longer opposes the crooked DC Circuit guy.
Go look up the Lucia case. Four heavy hitters all submitted anti-ALJ amicus briefs, in favor of Lucia (the DC Circuit crook) on the *same day*. Cato Institute. Chamber of Commerce. And.. Mark Cuban, who hired a big-name DC law firm to oppose ALJs for him.
The SEC has only one sad little amicus brief to its name.
This case is over before it starts. Best case scenario, someone points out to John Roberts that this would wreck SSA/OHO, and he crafts a narrow opinion limited only to SEC ALJs. Who have a lot more power than SSA ALJs.
Other best case scenario, Mueller's final court comes out tomorrow, and Trump and Pence and Ryan all go down with it, and then Orrin Hatch becomes President, and... well, no, none of that is happening.
So, yeah. SSA needs John Roberts to come around on this. Maybe some heavy hitter will submit a pro-ALJ amicus brief.
9:28PM. Well, if anyone can draft an incoherent ruling that splits hairs in order to make the decision he wants to, it's John Roberts. To any reasonable person, the individual mandates of the Affordable Care Act were clearly in an unconstitutional catch-22. If they are fines, they are unconstitutional. But, the Obama administration called them "fines" because if they were taxes, then they would be in clear violation of the Appriations Clause: All bills for raising revenue shall originate in the House of Representatives. The Affordable Care Act was a Senate bill. The mandate should of been found unconstitutional, but Roberts "found" a way. Frankly, this should be grounds for Roberts removal... But, this is about as likely as Orrin Hatch becoming President.
Appropriations
@1:41 PM, January 18, 2018
Federal Service Labor-Management Relations Statute allows an "employee" to unionize. Likely that an Officer of the United States would not be considered a employee for the purposes of the statute (indeed the issues in Lucia & Bandimere -- and Freytag -- involved the distinction between "mere employees" and "inferior officers"). Also, see Free Enterprise.
On another note, Charles Hall is likely wrong that being inferior officers would require presidential appointment. Department Head (which COSS is likely considered) is all that is constitutionally required.
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