Will The Tail Wag The Dog?

     Here's an excerpt from the brief filed on behalf of the federal government with the Supreme Court by the Solicitor General on the issue of whether a writ of certiorari should be granted in the Lucia case (it has) concerning whether Administrative Law Judges (ALJs) as presently appointed are constitutional:

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 through- out the government.

     Seems like they omitted the name of the agency that employs the vast majority of ALJs, the Social Security Administration (SSA). I doubt that was accidental. Social Security is the rhinoceros in the room that the Solicitor General would prefer that the Supreme Court not notice. This case represents the SEC tail threatening to wag the SSA dog.
     In reading over this brief, I don't see even the slightest sign that the Solicitor General was trying to lay groundwork to distinguish between ALJs at the SEC, where the Lucia case arose, and ALJs at SSA. Every argument they made applies with the same force to SSA ALJs. The effects upon the SEC if these arguments prevail are trivial in comparison to the effects at SSA.
     There is an urgent need for at least the Acting Commissioner of Social Security to issue an order appointing each of the current ALJs and ratifying any actions they may have previously taken. The SEC has long since done this. The Department of Labor did it this week. I think it would be far safer if the President were to issue such an order. The Constitution talks only of department heads having the power to appoint inferior officers. SSA isn't a department. Yes, there's a reasonable argument that the framers of the Constitution were using the word "department" in a more generic way than it is currently used in the federal government; that they meant something more like "agency." Maybe the courts will buy that but maybe doesn't seem good enough to me with so much at stake. We need to move to Defcon 1 on this.