The Supreme Court has issued its opinion in Seila Law v. CFPB. The Court held that the position of Director of the Consumer Finance Protection Board is unconstitutional because the incumbent serves a set five year term and may only be removed for cause. The holding is that this unconstitutionally removes the President's authority to manage the Executive Branch.
The position of Director of the CFPB is almost identical to that of Commissioner of Social Security in that the Commissioner serves a set six year term and may only be removed for cause. I see no reasonable way of distinguishing the two. The position of Commissioner of Social Security as currently constituted is unconstitutional.
Where does this leave Andrew Saul? The Seila Law opinion doesn't seem to leave open the possibility that the Director of the CFPB just remains in her position while now serving at the pleasure of the President. The Court clearly ruled that the action that the Director of the CFPB had taken that was on appeal was invalid. Thus, I have to say that Andrew Saul just lost his job. He ought to resign immediately in order to avoid any confusion. However, "confusion" seems to be this Administration's middle name.
Where does this leave the Social Security Administration? Well, even though it's not part of a cabinet level department, it's no longer an independent agency. It could be made an independent agency again by replacing the Commissioner with a Board, which the agency had in its earliest days, but I doubt that would be practicable. The agency could be stuffed back into some cabinet level department as it once was but that seems unlikely. It could be made a cabinet level department, which would be my preference. It could stay neither fish nor fowl, neither a cabinet level department nor an independent agency. I don't think that this Congress will act on the issue. We'll see what, if anything, the next Congress does.
Where does it leave administrative decisions made by the Social Security Administration that are now on appeal? The agency's Administrative Law Judges (ALJs) made decisions on a delegation of authority from the Commissioner. So too do members of the Appeals Council. Are those decisions made heretofore now invalid? I expect this issue will be litigated. For matter, what about contracting decisions and personnel decisions?
By the way, the majority opinion contains this language:
... [T]he CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. ...
In successive sentences the Chief Justice refers to the head of the Social Security Administration as its "Administrator" and as its "Director" rather than as its Commissioner.
Didn't the decision make a distinction between an agency that has enforcement powers (CFPB) and an agency that merely "adjudicates" benefits (SSA)?
ReplyDeleteNote that Roberts refers to the President as "herself."
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ReplyDeleteSSA has enforcement powers similar (albeit a great deal weaker) to the CFPB, they just are dealing with smaller sums of money generally. Also I don't think SSA's enforcement powers are punitive, just compensatory, so that could also be a safeguard.
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That IS interesting, although Roberts isn't referring to the next hypothetical president, just the office generally.
I don't think Saul will be leaving. Even if Biden wins I don't think he'll force Saul to leave. Biden will keep him there. Saying great job.
ReplyDeleteThe last several years have brought about some interesting Supreme Court decisions that Constitutionally touch the Social Security practice.
ReplyDeleteTwo years ago, the Lucia case brought us the issue of the Appointments Clause and whether or not ALJs were appointed in a constitutional manner.
A number of cases have been filed in the Federal Courts on that issue. In the District Courts the Commissioner conceded that the ALJs were appointed in an Unconstitutional manner. The Commissioner argued that the Plaintiffs did not have the right to raise that issue for the first instance in Federal Court. Most of the District Courts sided with the Commissioner.
On the other hand, District Courts in Pennsylvania, North Carolina, Oklahoma, New Mexico and Connecticut reached different results and remanded cases because of the Appointments Clause.
The Commissioner filed appeals and some of the claimant's also appealed. The Third Circuit (Pennsylvania) ruled in favor of the claimants. On the other hand, two weeks ago the Tenth Circuit (Oklahoma) overturned two favorable claimant's cases. Last Friday the 8th Circuit (Iowa) denied several claimant's appeals.
The First and Ninth Circuits already have a form of issue waiver or forfeiture before the ALJ. Now the 8th and 10th also do but the 3rd does not
This morning (June 29th) a Petition for Writ of Certiorari was filed in the United States Supreme Court involving the Tenth Circuit decision regarding the two Oklahoma cases.
I have handled Social Security Disability cases since 1979. Over the years this practice has become much more complex. I like that because I have to continue to "think like a lawyer."
Saul is not out by any means. In addition to distinguishing SSA from the CFPB, a majority stated that the removal protections are severable (majority decision and Kagan with the justices who joined her). It is strange that the Court remanded to consider ratification. The ratification theory is that at one point the CFPB had an ACTING head who ratified the action, and because an Acting head is removable, the action is constitutional. That part of the decision creates a ton of uncertainty in terms of what severance actually means in practical terms. Presumably, from this date forward, the CFPB head is removable so new actions will be valid. But past actions that were not ratified are in question as there is no one to ratify them at this point. SSA had an Acting at various times before Saul. One wonders if the current Administration completely thought through the "endgame" for this argument or if they want a Presidential power grab to carry the day (which will apply no matter which party holds that office).
ReplyDeleteI hope you are right and Andrew Saul's tenure is coming to an end. Really why shouldn't the President be able to ask for his resignation or fire him?? Giving him six years was an attempt to isolate the Commissioner from politics, But what it has done is to tie everyone's hands in regard to getting rid of a poor commissioner who has lost the trust of the SSA workforce.
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ReplyDeleteIt's looking more and more like going back to having SSA lead by a board would be superior to a single Commissioner, but I could be wrong. I'm young enough not to have experienced a board-led SSA. I'd be curious to hear about some of the downsides to it.
The Court remarked that SSA lacks the same enforcement powers as the CFPB because it largely adjudicates claims for benefits. However, SSA has statutory authority to issue subpoenas (albeit administrative), initiate civil actions, impose civil penalties, conduct investigations, etc. - sounds a lot like enforcement actions to me. I think that this decision does not bode well for SSA in its current organizational format.
ReplyDeleteWould be shocked if Saul physically sustains the 6 years. Just like would be shocked if Biden lasts the 4 years once he is president.
ReplyDeleteSaul is only in it for himself. He has already made investments based plans to modernize the office of systems. Why else would 73 year old grandpa take such a position? He was born into wealth. No doubt he feels entitled to profit off his position as commissioner. Time is ticking away..... everyday we all age a little bit. Grandpa time is limited. Hopefully the destruction he creates is limited
ReplyDeleteThe Court severed the unconstitutional provision of the Dodd-Frank Act in Selia, but to my knowledge the Social Security Act does not contain a severability clause. Am I wrong on this?
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ReplyDeleteSSA needs a young, tech savvy commissioner who can skillfully lead the agency into the future.
Andrew Saul's heart may have been in the right place. He probably did believe that his reactionary policy initiatives such as ending telework for thousands and forcing the FO to stay open Wednesday instead of catching up on their other work,, would be good for the public we serve. But he has a 73 year old's perspective. His initiatives have not worked. SSA would probably have been better off with no commissioner.
What makes you think a younger person would be better. I don't care for Saul but your remarks are ageist. Consider the increase in the Covid 19 cases are due to younger people's attitudes.
ReplyDeleteHaving SSA led by a Board may not be a bad idea. Let's just hope that Board is not SSAB - what a joke! I don't think the comment about having a young tech savvy commissioner was meant to be ageist. The bottom line is that SSA is an old bureaucracy in desperate need of being brought into the current century. It is bogged down by workloads and the inability to be more efficient and improve customer service. Future executives, whoever they might be, cannot be afraid to make the hard decisions the agency needs while infusing new methodologies for getting the work done. Think about it: Saul, older generation, thinks you have to be seen to be effectively managed, cancels telework. How short-sighted can you possibly be? Not only do you set the agency back a century by undoing SSA's attempts to modernize and make work more portable, you have now discourage young, promising workers from wanting to work there and you have paralyzed the agency during a pandemic.
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