Questions have been asked about the length of time that Kililo Kijakazi has served as Acting Commissioner of Social Security. The Vacancies Reform Act places limits on the length of time that a person can serve in an acting capacity as head of a federal agency. The contrary argument has been that the Vacancies Reform Act doesn't apply to an Acting Commissioner of Social Security since the Social Security Act itself has a specific provision concerning the designation of an Acting Commissioner which supersedes the Vacancies Reform Act. For whatever reason, the job of deciding how the Vacancies Reform Act applies to various positions has been lodged with the Government Accountability Office (GAO). The GAO has now issued an official ruling on the question. Kijakazi can continue to serve as Acting Commissioner because the Vacancies Reform Act doesn't apply to Social Security.
The GAO ruling, of course, gives no answer to the question of why the President hasn't nominated a Commissioner. My guess is that because of the firing of Andrew Saul that Republicans would mount a pitched battle against the confirmation of anyone as Commissioner and the President, or more likely Senate Democratic leaders, don't want to waste the time on it.
I don't like the idea that only Republicans can be confirmed as Commissioner of Social Security.
11 comments:
Till the next president
And yet another Democratic Administration is going to ignore Social Security.
The GAO ruling would also appear to rebut the ojections we see all too often to the authority of former Acting Commissioner Colvin to appoint/ratify apointments of ALJs.
@11:58
I find this incredibly amusing given the argument generally led to a stipulated remand.
There's not that much difference between acting commissioner and commissioner.
Anyway, so long as she lets me continue to telework and doesn't force me back to the office prematurely, I'm good with Kijakazi continuing to serve as Acting Commissioner.
Analysis might be worth clarifying in the original post. The FVRA is still applicable generally. GAO acknowledges that. The analysis on FVRA inapplicability relates to Kijakazi's acting service specifically.
Per the report, Biden chose 42 USC 902(b)(4) as the authority for the Kijakazi acting commissioner appointment, so per the report, FVRA limits are inapplicable for Kijakazi.
In contrast to Kijakazi's acting appointment, the Obama SSA commissioner succession memo uses the FVRA route for acting commissioner succession authority. So Berryhill, whose authority stemmed from that succession memo, was subject to FVRA limits.
The GAO/SSA position in this report is just that a specific appointment under 42 USC 902(b)(4) can avoid the FVRA and its limits entirely. Because the GAO found Kijakazi had that type of specific appointment, the GAO concluded Kijakazi is not subject to FVRA limits on her service.
@3:50
I've looked for the official document appointing Kijakazi acting commish. Got a link?
As to 42 USC § 902(b)(4), that just says the Commissioner shall be responsible for exercising all powers and the discharge of all duties of the Administration and shall have authority and control over all personnel and activities thereof. How does that do anything as to providing an alternative route for an acting commissioner to serve indefinitely?
Not being argumentative. I'm genuinely curious.
To 6:18 You can read the full GAO Opinion https://www.gao.gov/assets/b-333543.pdf but in pertinent part
(4) The Deputy Commissioner shall perform such duties and exercise such powers as the Commissioner shall from time to time assign or delegate. The Deputy Commissioner shall be Acting Commissioner of the Administration during the absence or disability of the Commissioner and, unless the President designates another officer of the Government as Acting Commissioner, in the event of a vacancy in the office of the Commissioner.
Prior to being named Acting Commissioner, Kihakazi had been Deputy Commissioner for Retirement and Disability Policy and as found by GAO
As Deputy Commissioner for Retirement and Disability Policy, Dr. Kijakazi was an “officer” as defined by 5 U.S.C. § 2104(a). First, section 704(a) of the Social Security Act directs the head of the agency, the Commissioner, to appoint additional officers, and Dr. Kijakazi was appointed to be Deputy Commissioner for Retirement and Disability Policy by Commissioner Saul.
@9:11
Thanks!
11:58
Those concerns remain well founded if Colvin was, as this GAO opinion notes Berryhill was, serving in the Acting COSSA role via the Vacancies Act rather than the SSA. This GAO report does not speak about Colvin's appointment and I just don't know/remember. But if she were put in place via Vacancies Act, then anything she did after whatever time she properly had in the position would certainly be suspect.
Further, this GAO opinion notes how acting folks appointed via Vacancies Act DO face possible restrictions on their power, while an acting COSSA appointed via the SSA has none. Thus, even within her proper timeline to act, there may be legitimate questions about the propriety of some of Colvin's acts (and Berryhill's, for that matter) if she were appointed via Vacancies and not SSA. You'd have to parse the Vacancies Act statute and case law, etc. to ascertain whether appointment of ALJs or ratification of their appointments would be such an act.
All that to say, this is great news for the current acting and it is very clear she's all systems go. But for Colvin/Berryhill, the question isn't as clear (though it might be for Colvin, I just don't know that key fact of whether she was a Vacancies Act or SSA serving acting COSSA).
For those asking questions about the GAO report, they're all answered within it. Just read it. Current acting can act indefinitely simply because the SSA gives authority to appoint an acting and it has no time limits on it. In the absence of explicitly stated time limits from the SSA statute itself (and the inapplicability of the Vacancies Act and its requirements), the appointment can thus last indefinitely.
Not sure agree about a Republican being the head of the SSA.
They just need someone who can do an adequate job for the 6-year term. Honestly, I did not have a huge problem with Republican appointee Astrue from 2007-13. By my calculation, he was the last SSA commish to serve the 6-year term.
Obviously, Better Call Saul was a disaster and rightfully removed by Biden. Not sure Biden had legal grounds to do it but Saul had to go. He had no business being in any kind of U.S. government power.
Obama also dropped the ball not at least trying to nominate an SSA commish.
Biden just needs to pick someone anyone and try to get confirmation. Those stonewalling filibusters McConnell and Graham might come up with some nonsense. But let them look like stonewalling fools like they did when not even trying to look at Merrick Garland for the SCOTUS.
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