I wrote this back in January in response to the upcoming oral argument in Lucia v. SEC, on the issue of Administrative Law Judge constitutionality:
How long is it going to take Social Security to respond to the Lucia decision? Will their response just be wishing and hoping that the Supreme Court ultimately draws a distinction between SEC ALJs and SSA ALJs? They might but I wouldn't bet on it.
At the absolute least, we need for the President to sign an order appointing each of Social Security's current ALJs and ratifying their actions to this point. We need at least a backup plan for immediately converting Social Security's ALJs to some other job title where they can be fired at will. Perhaps, we need to go to that forthwith.
I'd very much prefer to keep independent ALJs who are hired in much the same way as before and who can only be removed with great difficulty but a situation where Social Security has to redo every hearing held over a several year time period while it's in the middle of hiring new people to hold hearings would be an unimaginable catastrophe. Non-ALJ hearing officers wouldn't be the end of the world.
By the way, the same problem exists with the Administrative Appeals Judges at the Appeals Council. They're civil service too.
Also, this problem won't wait until a new Commissioner is confirmed. I don't know when a confirmation hearing is coming up. I don't know what the chances are that Mr. Saul will be confirmed. There are certainly reasons for Senators of both parties to be concerned about him.
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.Social Security didn't need me to tell them this. I'm virtually certain their in-house attorneys were saying the same thing. They may have been getting the same advice from the Department of Justice. However, they did nothing. Perhaps the problem was the lack of a proper acting Commissioner. Maybe they asked the President to do something or tell them what to do and he didn't. You may have noticed that the Trump White House isn't a well-oiled governing machine. Who knows what happened internally at Social Security? (If you're an insider who knows, I'd be interested in hearing from you.) In any case, they did nothing.
How long is it going to take Social Security to respond to the Lucia decision? Will their response just be wishing and hoping that the Supreme Court ultimately draws a distinction between SEC ALJs and SSA ALJs? They might but I wouldn't bet on it.
At the absolute least, we need for the President to sign an order appointing each of Social Security's current ALJs and ratifying their actions to this point. We need at least a backup plan for immediately converting Social Security's ALJs to some other job title where they can be fired at will. Perhaps, we need to go to that forthwith.
I'd very much prefer to keep independent ALJs who are hired in much the same way as before and who can only be removed with great difficulty but a situation where Social Security has to redo every hearing held over a several year time period while it's in the middle of hiring new people to hold hearings would be an unimaginable catastrophe. Non-ALJ hearing officers wouldn't be the end of the world.
By the way, the same problem exists with the Administrative Appeals Judges at the Appeals Council. They're civil service too.
Also, this problem won't wait until a new Commissioner is confirmed. I don't know when a confirmation hearing is coming up. I don't know what the chances are that Mr. Saul will be confirmed. There are certainly reasons for Senators of both parties to be concerned about him.
5 comments:
There is no reason for SSA to do anything in response to Lucia. The government made it clear in oral arguments its position that, unlike SEC ALJ's, SSA ALJ's are employees and not inferior officers (and for whatever its worth Lucia agreed with that position) No court has held otherwise. There are strong legal arguments to be made that that is a correct intepretation of SSA ALJ duties. There are strong legal arguments to be made that, unlike SEC ALJ's, SSA ALJ's, even if they are inferior officers, are appointed in a way that conforms with the constitution.
If an ALJ is an inferior officer, then a "hearing officer" or any other made up term doing the exact same thing is also an inferior officer. The term ALJ means nothing, its what the person's job duties are that determines if they are an inferior officer for constitutional purposes.
The agency has no commissioner and no valid acting commissioner. There is literally no one at the agency who could "re-appoint" or ratify the current ALJ Corps even if they wanted to.
The agency should do exactly what it is doing. maintain the status quo and let the litigation play out. If anything, the practicalities and political pressure for the Courts to allow the current system to continue to function would be much greater if the agency were forced to stop conducting hearings in a random judicial circuit because of an adverse court ruling than if it attempted to "fix" now a problem no court has said it has.
Is it possible that they could treat various SSA ALJs differently? SSA had some major hirings under the helm of Michael Astrue, so would at least those ALJs appointed during that period be OK?
There would be some issues re. the Astrue era. Did Astrue appoint or did some lower down the chain do it (such as Cristaudo)? If Strue did not appoint, can the hiring authority be delegated (or is the appointments clause list exhaustive)? If Astrue could delegate, what are the technical requirements (rulemaking, formal delegation) and where they followed?
Hearing officers have no independence. The employees known as "Administrative Appeals Judges" at the Appeals Councils are hearing officers; they can be given productivity bonuses, I am told, and their decisions on individual cases can be subject to management whim.
Do you really want a HOD overruling a decision made by a hearing officer at an individual ODAR/OHO?
The current ALJ system has some difficulties, due to lack of support staff, outlier judges (ideologues who deny 90% of their cases, or lazy judges who pay 90%), and a messy appellate system (initial appeals go down to a lower level of review, the Appeals Council, rather than up; and District Court judges routinely ignore agency law in favor of their own preferences, but ALJs under SSR 96-1p are forbidden to apply District Court precedent to other cases). But it's much better than the hearing-officer alternative.
The HOD could not overrule a hearing officer if the HOD is not an attorney. Unfortunately, there are many HOD's who are not attorneys despite the fact that a HOD who is also an attorney is capable of doing much more as far as work duties go. The HOD job needs to be abolished and replaced with a job that can requires a law degree. Makes no sense to pay someone a GS14 salary when they don't even have a law degree. No way would a HOD (who does not have a law degree) come close to getting a GS14 salary in the private sector. Talk about wasting taxpayer money.
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