So What Kind Of Pumpkin Did Social Security Turn Into At Midnight?

Yeah, I know, I'm mixing metaphors. So?

     I've been looking at the Federal Vacancies Reform Act of 1998.  Here's what I've discovered.

     Under 5 U.S.C. §3345 upon a vacancy in an office that requires Senate approval, the President can designate a person to serve as an acting officeholder. If the President doesn't make such a designation, the "first assistant" to the departed officeholder becomes the acting officeholder. In the case of the Social Security Administration, President Obama established a plan of succession. President Trump could have altered that plan but didn't. Under that plan, Nancy Berryhill became acting Commissioner. However, under that statute there can only be an acting officeholder up to certain time limits and 5 U.S.C. §3347 makes it clear that there is no other process by which a person can become or stay an acting officeholder beyond those time limits.  Everyone is in agreement that that time period has passed for the office of Social Security Commissioner and that office is vacant.

     Once the time period has passed, 5 U.S.C. §3348(b)(1) says the office and the functions and duties of that office remain vacant until someone can properly qualify to become the officeholder. Under 5 U.S.C. 3348(a)(2)(A) the functions or duties of an office are defined as those established by statute and "required by statute to be performed by the applicable officer (and only that officer)." That means that Administrative Law Judges and Appeals Counsel members and other Social Security employees who are performing previously delegated duties are able to continue to perform their previously delegated duties during the vacancy of the office of Commissioner of Social Security. So can just about any other employee.

     However, what about duties that had not previously been delegated? Even though there's nothing in the statutes that would have prevented the Commissioner or Acting Commissioner from delegating essentially any of the duties of the office, I don't see how there's anybody available now to further delegate any duties.
     I don't think there's any published list of duties that the Commissioner of Social Security has and hasn't delegated. Probably, there's always been some fuzziness about this since it's not possible to know in advance every novel issue or circumstance that might come up. Here would be my best guess of some duties that would never have been delegated under normal circumstances:

• Firing, replacing or disciplining senior level employees
• Coordinating the activities of the various offices and individuals who report directly to the Commissioner 
• Deciding upon internal budget allocations
• Deciding upon staffing level and overtime allocations for Social Security's various parts
• Approving contracts over some predetermined dollar amount
• Approving agreements with employee unions
• Signing off on proposed or final regulations
• Settling major litigation
• Approving statements made to Congressional committees
• Approving requests for legislation or agency comments on pending legislation

     It is possible that Nancy Berryhill made some last minute delegations before her authority as Acting Commissioner expired so that there could be better continuity. If there were any such extraordinary delegations, I think it behooves Social Security to announce them.

    In any case, Social Security was already somewhat rudderless with Nancy Berryhill as Acting Commissioner (not that it was her fault) and is even more rudderless now. How rudderless may depend upon whether Nancy Berryhill made some extraordinary delegations of authority while still Acting Commissioner. There's also the question of how well those at the top at Social Security will work together with no one really in charge -- the "you're not my real mommy" problem if you will.