What's At Stake

     From Talking Points Memo (TPM) (emphasis added):

A potential Mitt Romney presidency carries huge implications for the Supreme Court that have conservatives excited and progressives fearful about the future. ...

 Replacing even one of the liberal justices with a conservative, legal scholars and advocates across the ideological spectrum agree, would position conservatives to scale back the social safety net and abortion rights in the near term. ...

Roger Pilon, director of the libertarian Cato Institute’s Center for Constitutional Studies and a member of the Federalist Society, told TPM that one more solid conservative vote would pave the way for “fundamental shifts on the Court” toward “a revival of greater protection for economic liberty and a direct assault on the modern regulatory state.”

“If Romney were to appoint [conservative] justices and lower court judges, then we would see greater protection for economic liberty and greater scrutiny for regulation — whether they be environmental regulations, regulations for property rights, regulations for affirmative action, regulations of all sorts,” Pilon said. “That to my mind would be a return to the Constitution as it was originally understood prior to the New Deal constitutional revolution. And that is basically what the Tea Party movement has called for.”

The implication is that the Court would likely “chip away” at Congress’ power to compel states to participate in programs like Medicaid, and at the federal government’s power to erect national programs like Medicare and Social Security, Pilon says. “I expect that a Romney-appointed court would be more sympathetic to efforts to change the Medicare and Medicaid [and Social Security] programs because they’d come from that school of thought that says government has limited power.” ...

Randy Barnett, a constitutional law professor at Georgetown University and a leading architect of the legal challenge to the Affordable Care Act, told TPM that attacking the legal premise of Medicare and Social Security (which rest on the Constitution’s rarely questioned powers to tax and spend) would be “a much longer-term project.” ...

Cato’s Pilon believes that replacing one liberal justice with a conservative could pave the way for a slow return to the Lochner Era — a pre-New Deal period when the Supreme Court invalidated minimum wage and child labor laws as unconstitutional. ...

What Happened To Re-Recon And Senior Attorney Reviews?

     What's going on with re-recon (also known as informal remands) and senior attorney reviews? These have been efforts to cope with Social Security's backlog in hearing disability cases. Non-Administrative Law Judge personnel have done reviews after a request for hearing to see if the cases can be paid. My impression earlier in the year was that these cases were being reviewed under a standard that guaranteed that few would be approved. It seemed close to being a waste of time. Now, it seems like these reviews have slowed down. What's going on? Lack of staff to even do reviews? A decision that these reviews weren't worth the effort? Even more restrictive standards for approving a claim?

Watch Out Binder And Binder!

     From a press release:

Eric C Conn has opened a new office to handle Social Security disability claims in Beverly Hills, California.

 The opening of this new office will allow the Eric C. Conn Law Firm to represent Social Security disability clients nationwide. Now, with the Kentucky office and the California office, the Eric C. Conn Law Firm can go anywhere in the United States to represent Social Security disability claimants.

     You may remember Conn from the allegations made against him in the Wall Street Journal and in a bizarre "op ed" piece seen online recently or from Conn's bizarre advertising.
     You might wonder how Conn can claim that he can represent anyone in the country from offices in Kentucky and California. I don't know what Conn's plans are but I am aware of only two options: send someone out from one of your offices to represent the claimant at the hearing or find some local attorney who is hungry for work to show up at the hearing and pay him or her a modest fee. With only two offices, the latter would seem like the most likely choice for Conn. In either case, the attorney or representative meets the claimant for the first time on the day of the hearing.

How Many People Other Than Obama Think A "Grand Bargain" Is Feasible?

     In an interview with the Des Moines Register President Obama said that he was hoping for a "grand bargain" after the election that would include $2.50 of budget cuts for every dollar of tax increases which would reduce budget deficits by $4 trillion. He did not mention Social Security as a possible target for budget reductions but it is essentially impossible to get budget reductions that large without cutting Social Security.

     Richard Trumka, the head of the AFL-CIO, however, set down his marker in a Politico piece with the unambiguous title "Americans Don't Want Grand Bargain." Trumka says that he could not disagree more with cuts in Social Security and Medicare.

Why Hasn't Social Security Been A Campaign Issue?

     This is from Dean Baker, writing in The Guardian:

It is remarkable that social security hasn't been a more prominent issue in the presidential race. After all, Governor Romney has proposed a plan that would imply cuts of more than 40% for middle-class workers just entering the labor force. Since social security is hugely popular across the political spectrum, it would seem that President Obama could gain an enormous advantage by clearly proclaiming his support for the program. 

 But President Obama has consistently refused to rise to the defense of social security. In fact, in the first debate, he explicitly took the issue off the table, telling the American people that there is not much difference between his position on social security and Romney's. ... 

 Politicians, especially Democrats, who speak up for cuts to social security can count on lavish praise from the media. Political figures of no obvious stature, like former Louisiana Senator John Breaux or former Indiana Senator Evan Bayh, were lionized in the media for their willingness to cut social security benefits. After leaving the Senate, both took lobbying positions where they were almost certainly earning well over $1m a year. 

This is the fundamental economics of social security that explains why it has not figured more prominently in the presidential race. If President Obama were to rise in defense of the program, he could count on losing the financial backing of many supporters. He would also get beaten up by the Washington Post and other major news outlets for challenging their agenda.

Ethical?

     Harry Gross, the Personal Finance Columnist for the Philadelphia Inquirer, received a question from a reader who asks if it is ethical for his wife to take an early retirement buyout from her employer after being approved for Social Security disability benefits. Gross' response:

That's a tough one. You have an ethical as well as a financial dilemma. There are several choices. You could repay S.S. for the money she received and withdraw the disability request. She would then request the benefit in a new application after she took the buyout. She could keep the S.S. money and accept the buyout. This carries the financial risk of being discovered by either S.S. or her employer, and is an ethical lapse. She could forget the buyout with no repercussions. It is obvious to me that she cannot ethically accept both amounts. The buyout seems to be very substantial, so that leaves us with returning the S.S. money, taking the buyout, and reapplying for the disability at some later date. Good luck!

     No, Mr. Gross, this isn't a tough one. You should have called someone at Social Security before answering this question. Taking the buyout as well as Social Security disability benefits is perfectly legal. Some things that are perfectly legal are unethical but this doesn't seem like one to me. I don't think it's even close.

Sad Story From Orlando

     From the Orlando Sentinel:

Harley Christopher Andrews died of a brain tumor Sept. 2. He was only 23, dying before he had a chance to really begin living.

Twelve days later, his mother, Wendy Andrews Smith, opened this cheerful note from the Social Security Administration addressed to her firstborn: "

We're writing to let you know that we have made a disability hearing decision on your case. Our decision: We find that your condition has improved and you are capable of working."

      The article goes on to say that the brain tumor was a glioblastoma multiforme. I have too much personal experience with glioblastoma multiforme. My mother and my sister both died as a result of this type of brain tumor. It is invariably fatal. (No, it's not a familial tumor but there is a modest statistical increase in the risk of the tumor if you have a family member who has been diagnosed with glioblastoma. There are no published reports of three members of the same family having suffered a glioblastoma multiforme. Yes, I think about it.) I have over thirty years of experience with the Social Security disability programs. I cannot imagine how Mr. Andrews' benefits were cut off. This is as bad as a mistake can get at Social Security.

Weird Online Accusations

     There is an online "op ed" making allegations about impropriety at Social Security. There is little factual information in this piece.

     The piece includes a breathless report that Social Security Commissioner Michael Astrue will not be re-appointed once his term runs out in January 2013 because of misconduct at Social Security. There is nothing in the piece that even hints at anything that Astrue has done wrong. In any case, Astrue has said he does not want to be re-appointed and there's every reason to take him at his word since six years in that job should be enough for anyone, especially in this budget climate. It's rather unlikely that Mitt Romney would have considered the question of whom to nominate to be Social Security Commissioner if he is elected. He's too busy trying to get elected. I hope President Obama's staff, at least, has been working on this question. It's rather unlikely that Obama would try to persuade Astrue to stay on since the AFL-CIO, which represents most Social Security employees, is no fan of Michael Astrue, to say the least and Obama has every reason to listen to the AFL-CIO since it is working hard to get him re-elected.

     The "op ed" includes the statement that:

New evidence has reportedly surfaced that another Administrative Law Judge, William Gitlow, has been allowing attorney [Eric] Conn and his staff to write their clients actual appeal decisions and forward them to Gitlow. A practice that is both unheard of and forbidden by the Office of Disability Adjudication and Reviews 169 offices across the US.

     Unheard of? Forbidden? In 2008, Social Security was encouraging attorneys to write decisions for Administrative Law Judges. I am unaware of any directive forbidding this practice. Other sorts of trial courts routinely require attorneys to draft decisions.