I don't know how I missed this from Justice Kagan's concurrence in Collins v. Yellen:
... Consider the hundreds of thousands of decisions that the Social Security Administration (SSA)makes each year. The SSA has a single head with for-cause removal protection; so a betting person might wager that the agency’s removal provision is next on the chopping block. ... But given the majority’s remedial analysis, I doubt the mass of SSA decisions—which would not concern the President at all—would need to be undone. That makes sense. ... When an agency decision would not capture a President’s attention, his removal authority could not make a difference—and so no injunction should issue. ...
So, if Justice Kagan is correct, the Commissioner of Social Security should enjoy no protection from being discharged from his position by the President but it's going to be extremely difficult to come up with standing to bring a legal action to challenge the Commissioner's tenure in office. Perhaps a company that didn't get a major contract or a labor union that wishes to dispute a decision made directly by the Commissioner would have standing. Even then the Commissioner might say "But I cleared it with OMB."
3 comments:
I would think anyone denied under the new musculoskeletal listings would have standing, no?
@5:12 PM Standing to challenge what? A reg change that was enacted in conformity with the APA?
@10:53:
I agree with 5:12, I believe anyone denied under the new musculoskeletal regulations would have standing to bring legal challenge against the Commissioner’s tenure on the basis the intent behind these new regulations was to be able to deny more SSDI claimants. By far, the most common case is complaints of back pain. Trump, had said he wouldn’t touch SSA, but he, and Congressional Republicans realized they could quietly attack SSDI with little fanfare, or causing a stir among seniors receiving retirement SSA benefits. Certainly, there’s plenty of circumstantial evidence that tends to corroborate this, and probably some direct evidence, as well.
Truth is it’s nearly impossible now for the typical SSDI back case to meet or equal one of the musculoskeletal listings. Moreover, these new very strict listings will set the manner of how a back impairment and pain will be analyzed down through the entire sequential evaluation process for determining disability.
So yes, it certainly seems to me they would have standing to make such an argument. Biden had myriad issues demanding immediate attention on day 1 of POTUS. There is no way either he, or his staff, had time to analyze and fully appreciate the intent behind these new musculoskeletal regulations such that he could reasonably been expected to try to stop them from going into effect during the brief window of time before they went into effect. Justice Kagan’s analysis parallels this type of situation.
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