Anarcho-Capitalism And ALJs

     The Trump Administration has decided to reverse the position taken by prior administrations on whether Administrative Law Judges (ALJs) are officers or employees. Prior administrations had argued they were employees. The Trump Administration is arguing to the Supreme Court that they are officers.

     Sounds boring, right? The problem is that if they are officers, their appointments have to be approved by the President. ALJs would all serve at the pleasure of the President. Got your attention now?
     Under the appointments clause of the Constitution, "officers" must be appointed by the President. Employees are not appointed by the President and are protected by civil service rules. ALJs have not been appointed by the President and are protected by those civil service rules. The difference between an officer and an employee is the degree of independent authority exercised.
     "Officers" need not be confirmed by the Senate. There is a corps of about 7,000 members of the Senior Executive Service (SES) who are considered "officers" in the federal government who must be appointed by the President but who are not confirmed by the Senate. They hold, well, senior positions at agencies. The confirmation is mostly a formality. Agencies send over lists of SES appointments for routine Presidential sign-off. However, the President can always refuse to sign-off on an SES appointment or insist that a certain person get an SES appointment or insist that a person holding an SES position by removed from his or her position. Political appointees can do the same to the extent that an SES office holder work for them.

     Since none of the ALJs on duty now have been approved by the President, all actions they have taken may be considered ultra vires, to use the legal term for "beyond their powers."
     If ALJs, as presently appointed, are found to be unconstitutional, the President could decide on which of the current ALJs he wants to keep and which he wants to leave. He could fire any of them at any time if they displease him. They could be ordered about pretty much as the President desires.

     Basically, if the President's position is upheld, the independent ALJ corps as we have known it is dead.
     Why would anyone argue for Presidential appointments of ALJs? If you have an ALJ decision you disagree with, you might want it overturned on the grounds that the ALJ who decided it had no legal authority to decide it. You might make the argument if you want all disputes you have with the federal government decided in a completely political manner. More importantly, you would make this argument if, like Steve Bannon, you wanted to "deconstruct the administrative state," by which you meant returning the federal government to some supposed state of nature after it has been drowned in a bathtub to use Grover Norquist's words. Given the growth of the American economy and population, I think that would bring about what could only be described as anarchy, although the more accurate term might be anarcho-capitalism, which really is a thing. Today's Republican party is rapidly becoming an openly anarcho-capitalist party.
     What would follow if ALJs as presently appointed are found to be unconstitutional? Maybe, they continue to be hired in much the same way as now but their appointments are routinely approved by the President and there's no interference with their exercise of judgment. Maybe, Trump starts picking individual ALJs to be fired based upon what he heard on Fox and Friends that morning. Maybe, there will be a wholesale turnover of ALJs with each Presidential Administration. Maybe, appointments of ALJs become openly political. Maybe, ALJs are routinely told by those holding political appointments what decisions they must make. Maybe, Social Security ALJs are told they must not approve more than some set percentage of disability claimants. God only knows.

One Man's Fight

     A Norfolk, VA television station reports on one person's fight for Social Security disability benefits. Over a million people are in the same boat. And don't make the stupid assumption that because he has liver cirrhosis that he's an alcoholic. He's a diabetic. Diabetes can cause liver disease.

LOL

     Sam Johnson, the Chairman of the House Social Security Subcommittee, is now trying to blame the hearing backlog on President Trump's failure to nominate a new Commissioner for Social Security.

     A confirmed Commissioner would be nice but it's absurd to think that any Commissioner could possibly do anything of consequence about the backlog without more money to spend to hire the personnel needed to get the work done. That one is on you and your Republican colleagues in Congress, Mr. Johnson.

Hearing Backlog Soaring

     The Orange County Register article on Social Security's hearing backlog included a number of very interesting charts. Here's one.

Cases awaiting a Social Security disability hearing

Why Is There So Much Regional Variation? Part II

     Another visual from the Orange County Register:

Why Is There So Much Regional Variation? Part I

     The Orange County Register article on Social Security's hearing backlog included a number of very interesting visuals. Here's one.

Looks Like Someone Goofed

     From a Social Security press release:

In October of each year, the Social Security Administration announces adjustments that take effect the following January that are based on the increase in average wages. Based on the wage data Social Security had at the time of the October 13, 2017, announcement, the maximum amount of earnings subject to the Social Security tax (taxable maximum) was to increase to $128,700 in 2018, from $127,200 in 2017. The new amount for 2018, based on updated wage data reported to Social Security, is $128,400. ...

     This is odd. Why wouldn't Social Security have had the correct data as of October 13, 2017? It looks like someone goofed but the goof may have happened outside the Social Security Administration. In fact, it sounds like they're saying that someone else, perhaps Treasury, gave them incorrect information.
    I hope this doesn't cause problems. Programs used to compute payroll have to have the correct FICA wage cap. There will be problems if those programs aren't corrected.

Cut It Until It Bleeds And Then Complain About The Bloodstains

     The Orange County Register has a report on Social Security's horrendous hearing backlog. As the story says, Republican ideology plays a part. Even though Republican voters in general support Social Security, the Republican donor class hates Social Security so Republican officeholders underfund Social Security so that service deteriorates. Then they use the poor service as proof that government programs can't work.

A Narrow Win For Social Security

     The First Circuit Court of Appeals has issued an opinion in Justinano v. Social Security holding that the federal court have no jurisdiction, prior to a final administrative decision, to review Social Security's termination of disability benefits due to allegedly fraudulent medical evidence. These cases arose in Puerto Rico but this is essentially the same as the situation when the first civil actions were filed in the cases of claimants who had been represented by Eric Conn. 

     Note that no one is denying that there is jurisdiction to review a final administrative determination in these cases. Presumably, by now there are final administrative determinations to review.

Stop The Garnishment

     From a piece in Huffpost written by Nancy Altman and Raúl Grijalva:

... [U]ntil 1996, income from Social Security was one of the few sources that people with debt could count on because the benefits were off limits to creditors. Unlike your paycheck, which is subject to garnishment if you are late on a payment, your Social Security benefits were protected from debt collection. But in that year, Congress enacted the Debt Collection Improvement Act. That bill gave our government the power to seize a portion of Social Security benefits for the repayment of student loans, Veterans Administration home loans, food stamp overpayments and the like. It is ironic, at best, that Congress has exempted itself from a rule that limits private creditors. The government garnishing the very income that provides such modest support and lifts so many people out of poverty is plain wrong.   

Let’s look at student loans as one example. It is no news that our nation is facing a student loan debt crisis. However, despite popular belief, student debt is not only a young person’s problem. People 65 and older owe billions of dollars on outstanding student loans. As the population ages, the amount owed by older Americans continues to increase.  

Some of this debt is decades old, incurred when older Americans sought higher education. Some is the result of co-signing loans to help their children and grandchildren. If the loans can’t be paid off, they will follow you into retirement. Student loans owed by seniors are much more likely to be in default than student debt held by younger Americans. In 2013, 12 percent of federal student loans held by those aged 24 to 49 were in default. In contrast, 27 percent of federal student loans held by those aged 65 to 74 were in default. For those aged 75 and older, the default rate spikes to more than 50 percent! 

That’s where Social Security comes into play. If the student loan was made by a private bank or other financial institution, your Social Security benefits are safe. But if the loan was made by the government, a portion of your hard-earned Social Security benefits can be grabbed without your permission. 

This garnishment of Social Security benefits is happening and at an alarming rate. The number of retirees and people with disabilities who have had a part of their modest Social Security benefits seized by the government to pay off student loans tripled between 2006 and 2013. And this number is projected to grow dramatically in the future, as the cost of education continues to balloon and our population ages. 

The good news is that there is a solution – Congress created this problem, which means that it can also fix it. The Protection of Social Security Benefits Restoration Act, which will be introduced in the House of Representatives after Thanksgiving, will overturn the wrong-headed 1996 legislation by restoring the protected status of Social Security trust fund payments. That means no more garnishment of already meager Social Security benefits. Led by Representatives Raúl M. Grijalva, John Larson, Marcia Fudge and Mark Pocan, this legislation is particularly important because in addition to facing a student debt crisis, the nation is facing a looming retirement income crisis. As more and more seniors retire in the future, Social Security will be even more important. ...