Foreshadowing At The Supreme Court

      Yesterday the Supreme Court heard oral arguments in the case of Collins v. Mnuchin which concerns two quasi-governmental corporations. The issue was whether in the wake of the Court's Seila Law opinion there was a constitutional problem with the President's inability to remove the heads of these corporations. There is a similar issue affecting the position of Commissioner of Social Security. It was clear from the questions asked that at least two of the justices are already thinking about what they will do when the Social Security case reaches the Court. Below are a couple of excerpts from the transcript of the oral arguments. I'm not including the answers since I think those are much less important to us than the questions.

Justice Alito:  Suppose we were to agree with Mr. Nielson that this can't be distinguished from the -- the head of the Social Security Administration, or suppose we were to overrule Humphrey's Executor, as some members of the Court have suggested. Do you think it would follow that everything ever done by a Social Security administrator or everything ever done by the FCC or one of the other multi-member commissions was void ab initio, they would all be wiped off the books? 

Justice Kagan: I just go back to Justice Alito's question about the Social Security Administration. I'll put some scary sounding numbers on this. The SSA has been led by a single commissioner since 1994 and ever since then, it's rendered 650,000 decisions every year, so that's about 17 million decisions. Now you told Justice Alito, well, maybe there are some exceptions for lower-level employees. I'm not sure that ALJs would qualify as that, and even if they do, let's assume, which I think is probably true, that all of those decisions are rendered pursuant to guidance and rules that the SSA commissioner has enforced. So are we really going to void all of those decisions? ...  But, I mean, are you really making a good faith argument that if there were at --if there were for cause -- excuse me, if there were at will removal of the Social Security Administration that these 17 million decisions would come out differently or, indeed, that any of them would?