What Just Happened?

      Below is the memo that came out yesterday about personnel changes at Social Security. Click on it to view it at full size.

 

     Andrew Saul, whose term as Social Security Commissioner has been marked by strident anti-union activity, bringing in a union official as his Chief of Staff? Mark Warshawsky ,who has apparently been a consistent advocate for right wing policies, replaced by a fellow at the left leaning Urban Institute?

     But that's not all. Yesterday afternoon, the White House released a list of acting heads of federal agencies and Andrew Saul was listed as the acting head of the Social Security Administration. I thought that Saul believed himself to be the confirmed Commissioner of Social Security, legally entitled to serve out his term of office which runs until January 2025. Unless Saul resigned and was then appointed Acting Commissioner, something which hasn't been announced, the White House announcement can't be technically accurate, although it may reflect the essential nature of the situation. By the way, the memo shown above indicates that it was signed by the Commissioner rather than the Acting Commissioner.

     I'm sure that many readers of this blog have tuned out what I've written about the Supreme Court opinion in Seila Law v. CFPB but it's key to understanding what's going on. In that case, the Supreme Court held that the position of the head of the Consumer Finance Protection Bureau was unconstitutional because the incumbent served a fixed term of years and could only be fired by the President for cause. That sounds exactly like the Commissioner of Social Security. The position of Commissioner of Social Security wasn't before the Court. The attorney for Seila Law argued that there was a distinction between the head of the CFPB and the Commissioner of Social Security but it seems doubtful that the Court will buy that argument once a case squarely presents the issue. 

     I think we may surmise that there was a negotiation between Andrew Saul and President Biden's transition team and yesterday's announcements were the result. I don't understand why Saul wants to hang around to do the bidding of an Administration whose policies he must disagree with but he does.

     So where does that leave the Seila Law litigation that the Social Security Administration is facing? What's Social Security's position? Seila Law totally doesn't apply to cases in the pipeline because Social Security is so much different than CFPB but it can't apply to any future cases because the White House now considers Andrew Saul the Acting Commissioner of Social Security even though Saul himself hasn't announced that he regards himself as serving at the pleasure of the President? That seems like an incoherent position.

     By the way, I've heard an anecdotal report from one attorney that Social Security has recently asked for voluntary remands in all the cases he had in federal court where he was arguing Seila Law. Has anyone else seen this?