Constitutionality Of Social Security Commissioner At Issue Before Supreme Court But Court Received Almost No Briefing On The Issue

     I thought I would look through the briefs filed in Selia Law v. CFPD, the case pending at the Supreme Court in which the constitutionality of agency heads who can only be removed by the President for cause, which would be the case with the Commissioner of Social Security, to see if the parties or any of the amici who filed briefs tried to distinguish the Consumer Finance Protection Board (CFPB) from Social Security or even discussed Social Security. Here's what I found.

     From the primary brief for Selia Law:

 Similarly, the legitimacy of the Social Security Administration has been contested ever since it was restructured as an independent agency in 1994, with President Clinton stating at the time that the “single Commissioner” structure posed a “significant constitutional question” and noting his willingness “to work with the Congress on a corrective amendment.” Presidential Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994); Breger & Edles 1207-1208 & n.492. Again, there is less reason for concern than with the CFPB, because the Social Security Administration’s primary function is to adjudicate claims for benefits, rather than to exercise core executive power by bringing enforcement actions against private entities.

     From a footnote in the amicus brief filed by the Chamber of Commerce in support of Selia Law:

Apart from the Bureau, the Federal Housing Finance Agency (“FHFA”), the Office of Special Counsel (“OSC”), and the Social Security Administration (“SSA”) also have single heads who are removable only for cause. But these agencies do not enforce laws against private persons—FHFA, for example, oversees government-sponsored entities, two of which are in conservatorship with the FHFA as the conservator. 12 U.S.C. § 4511(b); FHFA, History of Fannie Mae & Freddie Mac Conservatorships, goo.gl/XzeAYr; see also PHH, 881 F.3d at 174-76 (Kavanaugh, J., dissenting).

     From a footnote in the amicus brief filed by several Republican led states in support of Selia Law:

To be sure, history includes some agencies headed by single individuals who have served fixed terms. See SELIN &LEWIS, supra, at 48-49. But those agency heads typically lack for-cause removal protection. Id. Apart from the FHFA and CFPB, only two agencies (the Office of the Special Counsel and the Social Security Administration) have single heads with removal protections, and those two have jurisdictions limited to enforcing federal law against federal officers or pertaining to federal spending. Id. For the reasons Petitioner [Selia Law] explains (at 23-24) [See above] , the legitimacy of these agencies is also subject to question.

     That's it, folks. No brief was filed sounding the alarm that this case could cause chaos at the Social Security Administration. The Supreme Court has been told that the legitimacy of the position of Commissioner of Social Security may be at stake but this certainly hasn't been emphasized, mainly because the briefs have all been filed by those trying to invalidate the CFPB, a bete noire for business groups and their allies in the Republican Party. The briefs make what seems to me to be a weak effort to distinguish the Commissioner of Social Security from the head of the CFPB. Social Security doesn't enforce laws against private persons? Of course it does. The agency has investigative units all over the country! Why is adjudicating claims less important than stopping consumer fraud? Social Security affects far more people far more directly than the CFPB.