Lucia Transcript Available

     The transcript is now available for the Supreme Court argument in Lucia v. SEC, concerning whether Administrative Law Judges, at least at the Securities and Exchange Commission are constitutional.

     Update: If I were going to guess based upon reading the transcript, I’d predict a 5-4 decision holding the SEC ALJs constitutional with the following split but that guess is only worth what you're paying for it.

Unconstitutional

Roberts (clearly)

Kagan (hard to read because she treated the oral argument as if it were a law school class)

Thomas (of course, he never speaks during oral arguments so I'm making an assumption here)

Gorsuch (had taken this position in a related case while on the Court of Appeals)

Constitutional

Alito (surprise -- but I may misread him since his problem may only be that he didn't like the tests proposed by the attorneys arguing the case)

Sotomayor (concerned about practicalities)

Ginsberg (concerned about practicalities)

Kennedy (concerned about practicalities)

Breyer (concerned about practicalities)

     I'd guess that if there are swing votes, they will be Kagan and Alito, which is weird to contemplate.

     One thing that should be a problem for any Justice is that no one had a bright line test. The attorneys arguing the cases said they had bright line tests but none of the Justices seemed impressed with those tests. 

     It was good that four justices were definitely concerned about practicalities although sobering that four others didn't seem concerned.

     Anyway, read the transcript and tell us what you think.

Social Security Expanded To 500 Million Workers

     From The Economic Times of India:

The Prime Minister’s Office (PMO) has given its approval to the labour ministry proposal on universal social security cover for 500 million workers, including those in the farm sector, seeking to start the process of putting in place a more secure welfare net a year before the general election.

The finance and labour ministries will work out the details of the scheme that will require nearly Rs 2 lakh crore [2 trillion rupees or $30 billion dollars but doublecheck my math -- a lakh is 100,000 and a crore is 10,000,000 in the Indian numbering system while a rupee is worth $.015] when fully rolled out for the lower 40% of the country’s total workforce.

The remaining 60% of the workforce is expected to make contributions out of their own pocket, either fully or partially ...

The labour ministry has proposed a comprehensive social security system to provide retirement, health, old-age, disability, unemployment and maternity benefits to the 500 million workers. ...

     India gets universal health care coverage before the United States?

Social Security Protests In Nicaragua Leave Nine Dead

From the Associated Press:

Nicaragua’s government says it is willing to negotiate over controversial social security reforms that have prompted protests and deadly clashes this week. 

Vice President, first lady and government spokeswoman Rosario Murillo says nine people have been killed in the unrest. She calls the protests “cruel.” 

Dozens of others have been injured or arrested in the chaos in various cities across the Central American nation. ...

     Update: Now more than 25 dead. 

Presenting Officer In Use In U.K.

     The United Kingdom has disability benefits as part of its social security system. There are many, many differences between their disability benefits and those in the United States but one way that they are similar is that claimants may have hearings on their cases, before Administrative Law Judges in the United States and before tribunals in the U.K. Those hearings are somewhat different in that the Department for Work and Pensions (DWP) may be represented at the hearing by a "presenting officer." That's a concept that's been proposed in the past in the U.S. Here's some excerpts from a recent article about the presenting officers in the U.K.:

DWP has finally released information that shows that the presenting officers (POs) it sends to personal independence payment (PIP) appeals must report back to their bosses afterwards on whether they persuaded the tribunal not to grant an enhanced PIP award.

The same applies for those sent to employment and support allowance (ESA) appeals, with POs having to tell their managers whether they persuaded the tribunal not to award the claimant eligibility for the ESA support group. ...

Marsha de Cordova, Labour’s shadow minister for disabled people, yesterday (Wednesday) described DWP’s admission as “truly appalling”. ...

[The author of this piece] has been in contact with a DWP civil servant working on the PIP “frontline” – who is also a former PIP case manager – who has warned that POs are being given the “target” of stopping enhanced PIP payments. ... 

The minister for disabled people, Sarah Newton, said last November that DWP was “recruiting, training and deploying” about 150 POs to attend PIP and ESA tribunals “in order to present the Secretary of State’s case and support the First tier Tribunal in arriving at the right decision”. ... 

“A PO is not there to prevent an award being changed, but to ensure that the award is correct. ..." ...

Lucia Case To Be Argued Monday

     Lucia v. SEC, concerning whether Administrative Law Judges (ALJs), as currently appointed, are unconstitutional, at least at the SEC, will be argued before the Supreme Court on Monday. Ronald Mann gives an argument preview for SCOTUSblog. Here are some excerpts:

... On the merits, the argument that the appointments are invalid is a powerful one, largely because the activities of ALJs are so similar to the activities considered by the Supreme Court in its 1991 decision in Freytag v. Commissioner, which held that “special tax judges” of the Tax Court qualified as officers for purposes of the appointments clause.  Like the ALJs involved here, those officers supervised trial-like proceedings, formed an evidentiary record and reached preliminary decisions in the matters before them. If the justices decide to take seriously the opinion and analysis in Freytag, then the challenge here will have a great deal of credibility.

The strongest argument in support of the existing arrangement is that the judges here are not officers because nothing that they do is actually effective as a decision of the SEC until the SEC approves it – the ALJ decisions are only tentative and have no effect until the SEC acts. [Note that unlike SEC ALJs, Social Security ALJs do make final decisions. If the Supreme Court decides the case on this point, Social Security ALJs will be at risk.] ...

The oral argument may be crucial here. Several of the justices have stated in previous cases that they regard ALJs generally as officers subject to the appointments clause (Justice Anthony Kennedy, by his joinder in the Freytag opinion, and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in more recent decisions). If those four maintain that view, it will be difficult for Metlitsky [arguing that the ALJs are constitutional] to find five votes to uphold the status quo. I would watch particularly for the reaction of Justice Elena Kagan, whose scholarly background is likely to give her a strong reaction to the competing interests. ...

     Of course, there's no live broadcast of the oral argument. The Supreme Court will release an audio recording of the argument but not until next Friday. However, a written transcript of the oral argument will be released sometime Monday.

GAO Report Pans Idea Of Mandating Increased Private Disability Insurance

     Some right wing "think tanks" have been promoting the notion that mandatory private disability benefits could somehow substitute for or augment Social Security disability benefits. I wouldn't call the ideas even half baked. It's been more like vague notions. The proponents of these ideas got Senator Orrin Hatch to ask the Government Accountability Office (GAO) to do a report on their ideas, to the extent that GAO could even identify what the ideas were. Predictably, the GAO report wasn't encouraging for these reasons:

• Insurers told GAO that is was unclear how expanding PDI [Private Disability Insurance] would affect PDI premiums and the impact this would have on enrollment.
• Employers told GAO they were concerned about potential additional requirements or administrative burdens that would be placed on them if PDI were expanded.
• Employee and disability advocacy groups told GAO they were concerned about whether PDI expansion would provide standard services or employee protections currently available under SSDI, especially with respect to PDI expansion proposals that would replace SSDI for 2 year.

     One enormous problem is that long term disability insurance (LTD) as we know it is reduced by the amount that Social Security pays. That means that LTD just pays the full rate until a claimant is approved by Social Security and then supplements the Social Security disability benefits thereafter. There's only a handful of LTD recipients who never get approved for Social Security disability benefits and continue to receive the full unreduced LTD payment indefinitely. Making LTD the primary payor would completely change the insurance product and make it much, much more expensive. It's never been clear to me whether the think tank proponents of private disability insurance understand just how different what they're asking for would be from any product that exists now. The LTD carriers might like to get big contracts for helping Social Security administer its disability benefits programs but I've never seen evidence that the LTD carriers actually want to be the insurers. Apparently, that's what GAO heard directly from the insurance companies.

Man Threatens To Blow Up Social Security Office

     From Palos Patch (whatever that is and wherever it is):

A Bridgeview man threatened to blow up a social security office because he wasn't happy with the service he was receiving, reports said. Michael Perelka, 48, was charged with disorderly conduct. According to police, Perelka was talking to a customer service representative at 10718 S. Roberts Road around 2 p.m. Police said he started to yell, "I'll blow this place up." Perelka has a May 31 court date in Bridgeview.

This Is What's Getting Funded At Social Security

     From Federal News Radio:

The Social Security Administration is approximately six months into what will likely be a five-year effort to modernize the agency’s aging IT infrastructure. Sean Brune, chief program officer for IT modernization at SSA, said many of the planned upgrades revolve around services used by the general public. This fiscal year, Brune said, the agency will focus on improving communications and existing services.

“We’re currently working to put all of our online services behind that secure online portal … my Social Security,” he said on Federal Insights: IT Modernization. “We encourage all members of the public to establish their personal my Social Security account. That will then allow, prospectively, a member of the public to see all the relevant services for their circumstance.”

These could include filing claims, checking claims status, services for representative payees.

Enhancing its public offerings will involve more mobile digital services. Brune said the agency has been building responsive design into all new services to detect when portal users are on mobile devices.

IT modernization also includes updating the disability claims processing application — to help SSA cut down on the backlog — and enhancing cybersecurity. With two secure data processing centers, Brune said the agency is covered in that regard. ...

     Of course, this is not unimportant work. The problem is that it's being done at the expense of service to the public today. Lines are present outside field offices and phone calls aren't being answered while staffing dwindles.