When it charged Eric Conn with federal crimes, the government estimated that the amount of money involved was $550 million. Around 1,800 claimants were involved. This means that they valued each case at around $300,000. In doing so, I think they weren't taking into account the value of Medicare benefits but let's leave that aside. The average Social Security Administrative Law Judge (ALJ) hears more than 500 cases a year. This means that based upon the value that the Department of Justice puts on these cases the average Social Security ALJ is deciding upon cases with a value of about $150 million per year.
The standard for determining whether an officeholder is in "officer" as that term is used in the Constitution is whether that person exercises “significant authority pursuant to the laws of the United States.” OK, tell me your argument for why ALJs at the SEC are obviously inferior offices subject to the Appointments Clause while Social Security ALJs aren't.
What does the fact that SEC cases are adversarial and Social Security cases aren't have to do with it? Most "inferior offices" in the federal government have no adjudicative role at all. The question is the decision-making authority involved. The plaintiff in the Lucia case, who promoted a scheme he called "Buckets of Money", was barred by an SEC ALJ from selling securities. (Real sympathetic test case they've got there.) My understanding is that's the sort of thing that SEC ALJs adjudicate. A Social Security ALJ has the power to decide whether a person has an income or not. Not infrequently, homelessness is on the line. If you're barred from selling securities, you move on to a new line of work, not a homeless shelter. On the whole, I'd say there's more at stake in the average Social Security ALJ case than the average SEC case (not to mention that each Social Security ALJ adjudicates far more cases than the average SEC ALJ), unless you think that any case involving wealthy people or corporations is inherently more consequential than a case involving an ordinary American.
By the way, take a look at the 1988 Supreme Court decision in Morrison v. Olson. That case concerned whether independent counsels of that day passed muster under the Appointments Clause. The statute under consideration in that case is no longer in effect. Robert Mueller was appointed under Department of Justice regulations rather than the old statute. While Mueller was appointed by the acting head of the Department of Justice (the Attorney General had recused himself), he can only be removed for cause. It was the same situation faced by the Court in Morrison. If the Supreme Court decides that SEC ALJs are unconstitutional, it's going to have to make it clear that it doesn't mean to disturb Morrison or there's going to be litigation about the constitutionality of the Mueller appointment. Distinguish Robert Mueller. Distinguish Social Security ALJs. Distinguish Social Security Appeals Council members. Distinguish members of the Board of Veterans Appeals. Probably distinguish ALJs at some other agencies. That's a lot of distinguishing. Maybe finding SEC ALJs unconstitutional isn't worth all that distinguishing especially when no one seems to be able to come up with a bright line test to apply.
What does the fact that SEC cases are adversarial and Social Security cases aren't have to do with it? Most "inferior offices" in the federal government have no adjudicative role at all. The question is the decision-making authority involved. The plaintiff in the Lucia case, who promoted a scheme he called "Buckets of Money", was barred by an SEC ALJ from selling securities. (Real sympathetic test case they've got there.) My understanding is that's the sort of thing that SEC ALJs adjudicate. A Social Security ALJ has the power to decide whether a person has an income or not. Not infrequently, homelessness is on the line. If you're barred from selling securities, you move on to a new line of work, not a homeless shelter. On the whole, I'd say there's more at stake in the average Social Security ALJ case than the average SEC case (not to mention that each Social Security ALJ adjudicates far more cases than the average SEC ALJ), unless you think that any case involving wealthy people or corporations is inherently more consequential than a case involving an ordinary American.
By the way, take a look at the 1988 Supreme Court decision in Morrison v. Olson. That case concerned whether independent counsels of that day passed muster under the Appointments Clause. The statute under consideration in that case is no longer in effect. Robert Mueller was appointed under Department of Justice regulations rather than the old statute. While Mueller was appointed by the acting head of the Department of Justice (the Attorney General had recused himself), he can only be removed for cause. It was the same situation faced by the Court in Morrison. If the Supreme Court decides that SEC ALJs are unconstitutional, it's going to have to make it clear that it doesn't mean to disturb Morrison or there's going to be litigation about the constitutionality of the Mueller appointment. Distinguish Robert Mueller. Distinguish Social Security ALJs. Distinguish Social Security Appeals Council members. Distinguish members of the Board of Veterans Appeals. Probably distinguish ALJs at some other agencies. That's a lot of distinguishing. Maybe finding SEC ALJs unconstitutional isn't worth all that distinguishing especially when no one seems to be able to come up with a bright line test to apply.
I read the petitioner's brief. I did not understand what the non-adversarial nature has to do with it. Good to see I am not alone. If anything, given SSA ALJs have the duty to develop the evidence of record (as the process is inquisitorial, rather than adversarial) I would think SSA ALJs have even greater power than SEC ALJs.
ReplyDeleteDoes anybody know what would happen if the supreme court decided social security judges were unconstitutional.
ReplyDeleteIf the ALJs are ruled unconstitutional then any unfavorable decision (where the time for appeal has not expired) can be appealed on the grounds that the ALJ did not have the authority to make the decision. This will most likely result in a remand.
ReplyDeleteThe SSA will go about having the ALJ's appointed to prevent this problem with future decisions. However, SSA could use this process to remove ALJs it/they don't like by recommending that they not be appointed. This may give SSA an opportunity to clean house and replace a large number of ALJs.
Seems to me to be another example of the agency playing games with the ALJ corps. All departments/agencies heads have been advised to re-appoint their ALJs. To my knowledge, SSA is the only agency that has not done so. I've heard the argument that SSA does not currently have an agency head because there has not been a Senate-approved commissioner for years now. That doesn't fly with me since there is ample evidence of inferior offices appointed by those acting as department heads. One has to look no further then special prosecutor Robert Mueller who was appointed by the Deputy Attorney General when the Attorney General recused himself. If an acting department head can't appoint inferior officers, then we have a whole new set of constitutional issues way beyond the current ALJ dilemma.
ReplyDeleteIn any case, nothing prevents the current acting commissioner from re-appointing the SSA ALJ corps, if only to demonstrate some interest in the job security of 1500 SSA employees. The fact that SSA is the only agency that has not done this simple act gives me pause and makes me wonder what their end game must be. To wait for a Supreme Court 5-4 decision in Lucia and disband the ALJ corps and hire hearing officers? To wait for the decision and re-appoint only favored ALJs? To wait for the decision, panic, close all OHO offices and blame ALJs for increased waiting times? At this point, nothing would surprise me about SSA/OHO "leadership."
@4:27
ReplyDeleteWhy would you assume the constitutionality would apply only to unfavorable decisions? Wouldn't all ALJ decisions need to be readjudicated once we figure out who can do so and under what authority?
How would you include this in a Federal appeal?
ReplyDelete"The SEC surprised many Nov. 30 when less than a day after the Justice Department pulled the government’s support for the ALJ process, it issued an order designed 'to put to rest any claim that administrative proceedings pending before, or presided over by, Commission administrative law judges violate the Appointments Clause.'"
ReplyDeleteI won't hold my breath to be similarly surprised by SSA.
I sure hope SSA's inaction in reappointing ALJs is a result of SSA's interpretation of the Vacancies Act's affect on the acting commissioner's authority and not some half-baked backdoor attempt to fire unwanted ALJs. While I would never underestimate the incompetence of SSA management, the firestorm this would unleash in the form of litigation and due process challenges, unratified cases needing to be re-heard, and just general demoralization of the ALJ corps would be a nightmare for the agency. Certainly the cost wouldn't outweigh the benefit of firing a few judges.
ReplyDeleteIf it is a Vacancies Act problem, that problem grows larger if the Supreme Court holds that all ALJs are inferior officers. The acting commissioner still wouldn't have the authority to reappoint any SSA ALJ, and the whole system comes crashing down (though technically some SSA ALJs were appointed by the commissioner in the past, as I understand it).
The best outcome would be for the Supreme Court to differentiate ALJs - some carrying enough independent authority to be inferior officers while others would be employees.
@5:52
ReplyDeleteTo be fair, the SEC has 5 ALJs. SSA has over 1,600. I assume an agency would not ratify appointment without reviewing the ALJ's actions, meaning SSA could be (unlikely) reviewing the ALJ corp to determine which ALJ's appointments will be ratified.
Anyone know if AALJ has commented on this? Are SEC ALJs part of AALJ?
The hostility and contempt that the people buying and paying for our politics have for the social security administration and particularly the disability component is off the charts in my opinion. I think most reps would have to admit they have noticed in their dealings with the agency this hostility being enforced in the past few years. Particularly, I think we have seen a trend in anti-disability new ALJ's in the past few years. Don't kid yourself they are determined to ultimately destroy and privatize this agency. Expect bad intentions until we see true political reform.
ReplyDeleteThere's an interesting case percolating at the Supreme Court currently, awaiting a decision as to whether to grant cert. The petitioners allege FDIC ALJs are not constitutionally appointed and the Solicitor General, rather than throwing in the towel, as he did in Lucia, has argued that cert should not be granted because the issue was not raised at the administrative level, the Agency having been given no opportunity to remedy the problem.
ReplyDeleteThis suggests one way to avoid relitigating the hundreds of thousands of SSA ALJ decisions that would be invalidated by a finding that they are not constitutionally appointed.
The case is Scott v. Federal Deposit Insurance Corporation, 17-567
The distinguishing difference is SSA DOES NOT WANT ALJ's. While they are mandated to uphold policy they cannot be ordered to find a certain way in a specific case. They cannot be told that in every case like X hold this way unless SSA adopts a regulation or at least a policy statement to that effect.
ReplyDeleteSSA cannot terminate an ALJ for producing 450 decisions that are upheld more than average to replace them with a young go getter who can crank out 850 decisions.
The interesting part of this is while a small powerful segment of our society want to just wash their hands of the disabled and set up a kangaroo deny them all situation, the true societal need and demand for this program continues to grow. The marginalized wandering homeless roaming our streets continue to grow also. Can we truly solve this problem by letting those that will never make it back to competitive work die on the streets and in the prisons. Also, how expensive is this approach for society? If we use Great Britain as a judge I think the verdict would be that social austerity is a deadly, cruel failure. How far down this road will we have to go before civilized, humanitarian values prevail again. Is flirting with corporatism and fascism truly worth it to the top one percent of the one percent?
ReplyDeleteThis statement is blatantly false: "The average Social Security Administrative Law Judge (ALJ) hears more than 500 cases a year." The *average* is somewhere around 350-400. The agency would like everyone to believe that 500 per year is a reasonable and achievable number, but in reality only ~25% of the ALJs meet or exceed 500 cases per year and cut many corners to do so.
ReplyDelete