Constitutionality Of Social Security Commissioner At Issue Before Supreme Court But Court Received Almost No Briefing On The Issue

     I thought I would look through the briefs filed in Selia Law v. CFPD, the case pending at the Supreme Court in which the constitutionality of agency heads who can only be removed by the President for cause, which would be the case with the Commissioner of Social Security, to see if the parties or any of the amici who filed briefs tried to distinguish the Consumer Finance Protection Board (CFPB) from Social Security or even discussed Social Security. Here's what I found.

     From the primary brief for Selia Law:

 Similarly, the legitimacy of the Social Security Administration has been contested ever since it was restructured as an independent agency in 1994, with President Clinton stating at the time that the “single Commissioner” structure posed a “significant constitutional question” and noting his willingness “to work with the Congress on a corrective amendment.” Presidential Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994); Breger & Edles 1207-1208 & n.492. Again, there is less reason for concern than with the CFPB, because the Social Security Administration’s primary function is to adjudicate claims for benefits, rather than to exercise core executive power by bringing enforcement actions against private entities.

     From a footnote in the amicus brief filed by the Chamber of Commerce in support of Selia Law:

Apart from the Bureau, the Federal Housing Finance Agency (“FHFA”), the Office of Special Counsel (“OSC”), and the Social Security Administration (“SSA”) also have single heads who are removable only for cause. But these agencies do not enforce laws against private persons—FHFA, for example, oversees government-sponsored entities, two of which are in conservatorship with the FHFA as the conservator. 12 U.S.C. § 4511(b); FHFA, History of Fannie Mae & Freddie Mac Conservatorships, goo.gl/XzeAYr; see also PHH, 881 F.3d at 174-76 (Kavanaugh, J., dissenting).

     From a footnote in the amicus brief filed by several Republican led states in support of Selia Law:

To be sure, history includes some agencies headed by single individuals who have served fixed terms. See SELIN &LEWIS, supra, at 48-49. But those agency heads typically lack for-cause removal protection. Id. Apart from the FHFA and CFPB, only two agencies (the Office of the Special Counsel and the Social Security Administration) have single heads with removal protections, and those two have jurisdictions limited to enforcing federal law against federal officers or pertaining to federal spending. Id. For the reasons Petitioner [Selia Law] explains (at 23-24) [See above] , the legitimacy of these agencies is also subject to question.

     That's it, folks. No brief was filed sounding the alarm that this case could cause chaos at the Social Security Administration. The Supreme Court has been told that the legitimacy of the position of Commissioner of Social Security may be at stake but this certainly hasn't been emphasized, mainly because the briefs have all been filed by those trying to invalidate the CFPB, a bete noire for business groups and their allies in the Republican Party. The briefs make what seems to me to be a weak effort to distinguish the Commissioner of Social Security from the head of the CFPB. Social Security doesn't enforce laws against private persons? Of course it does. The agency has investigative units all over the country! Why is adjudicating claims less important than stopping consumer fraud? Social Security affects far more people far more directly than the CFPB.

Is The Position Of Commissioner Of Social Security Unconstitutional?

     From Reuters:

Facing an existential threat at the U.S. Supreme Court, which will hear oral arguments on March 3 in a constitutional challenge to the unusual structure of the Consumer Financial Protection Bureau, the CFPB has found an unlikely champion. The Trump administration believes that the bureau's lone director is unconstitutionally shielded from accountability to the president, yet the Justice Department’s final brief before oral argument urged the Supreme Court not to issue a ruling that will halt the CFPB’s “critical work." ... [The case is Seila Law v. CFPB .]

Seila’s lawyers ... had asked the Supreme Court to decide whether the provision that shields the CFPB director from being removed without good cause runs afoul of the separation of powers doctrine. The Justice Department and the CFPB, repudiating the CFPB’s longtime defense of its structure, backed Seila’s petition, arguing that the provision was an unconstitutional restraint on the president....

DOJ and Seila also agreed that Clement’s attempt to fit the CFPB’s structure within the penumbra of 1935’s Humphrey’s Executor v. U.S. falls short. In that case, the Supreme Court upheld the constitutionality of the Federal Trade Commission, but Seila and DOJ said the court’s analysis applies only to “quasi-judicial” agencies headed by several commissions, not to the CFPB’s lone director. They also hinted that if Humphrey’s Executor controls this case, then the Supreme Court should consider overruling its precedent, which Seila described as “erroneous and already repudiated.”  ...

     The Social Security Administration is also headed by a lone director who can only be removed "... pursuant to a finding by the President of neglect of duty or malfeasance in office." If, as this Administration is arguing, the position of head of the CFPB is unconstitutional, I see no way that the position of Commissioner of Social Security isn't also unconstitutional.
     If the position of Commissioner of Social Security is unconstitutional are regulations adopted by unconstitutional Commissioners valid? What about decisions made under a delegation of authority from an unconstitutional Commissioner such as those made by Administrative Law Judges and Appeals Council members? This isn't a problem that can be easily solved in the same way that the problem with how ALJs are appointed was solved.
     If the Supreme Court rules that positions such as that of the Commissioner of Social Security are unconstitutional, the Social Security Administration can no longer be an independent agency, at least not without a multi-member board heading it and maybe not then.
     This could put a real crimp in Andrew Saul's plans for a batch of far reaching regulations.

Delay In Posting Attorney Fee Numbers

     It's happening again. Social Security is delaying posting final 2019 numbers for fees paid to attorneys and others for representing claimants before the agency. The fees come out of the back benefits of the claimants. Normally, those numbers are posted on a monthly basis in less than a week after the beginning of a month. We're now past the middle of February and Social Security still hasn't posted the December 2019 numbers. I'm not the only one who pays attention to these numbers. This delay happened last year if I remember correctly.

I'll Save You A Bunch Of Money -- This Plan Won't Work

     From a contracting notice posted by the Social Security Administration:

The Social Security Administration (SSA) seeks a contractor to assist in a synthesis of the lessons learned from the tests of new policies (i.e., demonstrations) that SSA has conducted.  The contractor will convene a state of the science meeting, edit the resulting papers, and publish a volume targeting policymakers and others interested in Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), and related policies. ...

Over the past 30-plus years, SSA has also conducted several tests of new policies and programs to improve beneficiary work outcomes.  These demonstrations have covered most aspects of the SSDI and SSI programs/populations and have addressed topics including family supports, children, informational notices, changes to benefit calculations, and a variety of employment services and program waivers. ...

These demonstrations have generated dozens of documents reporting which policies worked and which did not.  However, apart from a few cursory reviews in academic survey articles or Congressional Research Service reports, little has been done to synthesize the findings of these demonstrations to identify cross-demonstration lessons about which policies, program, and other operational decisions would provide effective supports for disability beneficiaries who want to work.

By taking stock of the full lessons learned from prior demonstrations, policymakers will have the understanding of what has been tested and whether and why those policies were effective.  In turn, this understanding will enable SSA to implement policies that work in multiple settings, propose alternatives to policies that may not have worked for identifiable reasons, and identify policies and strategies for future demonstrations. ...

     This proceeds from the unshakeable belief that it's easy to get on Social Security disability benefits and that, therefore, it's easy for recipients to get back to work. They just need the right incentives. There has to be a way. Surely, somewhere hidden in all the research and demonstrations Social Security has done, there must be a path visible, a way to put many of those people back to work.

     I'm familiar with the research history. There's no path hidden away in some unread journal. The truth is that it's extremely difficult to get on Social Security disability benefits. Very few who get on benefits get significantly better. In fact, the vast majority keep getting worse. This contract will be a waste of money.

How Did Social Security Get Involved In This Mysterious Navy Contract?

     From a contracting notice posted by the Social Security Administration (emphasis added):

The Social Security Administration (SSA) intends to establish a contract with Johns Hopkins University Applied Physics Lab (JHU/APL) on a sole source basis. SSA administers the Social Security Disability Insurance (SSDI) Program under which SSA pays monthly cash benefits to millions of Americans insured under the Social Security Act. SSA annually processes and adjudicates hundreds of thousands of disability determinations, including at the administrative hearing and appeal levels. JHU/APL is currently conducting a detailed performance improvement and future state analysis of various aspects of the Social Security Disability Insurance (SSDI) Program. JHU/APL is performing this work on behalf of SSA pursuant to a task order issued by Naval Sea Systems Command (NAVSEA) under a contract between NAVSEA and JHU/APL. SSA seeks to maintain the essential engineering, research and development capability currently being provided to it by JHU/APL beyond the expiration date of the NAVSEA task order in 2020. SSA intends to use the independent, unbiased technical analysis and recommendations it receives from JHU/APL under the sole source contract to continue to identify opportunities for policy improvement and increased efficiency and accuracy in the administration of the agency’s mission. ...

      Why would the Navy have been issuing a task order on behalf of Social Security? What does "detailed performance improvement and future state analysis of various aspects of the Social Security Disability Insurance (SSDI) Program" mean? How could an applied physics lab possibly help Social Security?  This may be legit but it sure sounds fishy.

SSI Needs Restoration

     The Coalition for Citizens with Disabilities (CCD), the major umbrella group of groups involved with helping the disabilities, has endorsed the Supplemental Security Income Restoration Act, which would update income and resources limits that have not been adjusted for inflation in almost 50 years. That bill can’t pass in the current Senate but next year, maybe.

Military Criminal Offenses No Longer Excluded From Benefit Suspension

     From a recent change in Social Security's Program Operations Manual Series (POMS):

We are removing the NOTE in GN 02607.001.B,2, based on an Office of General Counsel (OGC) review that determined that the agency only looks to the United States Code and State penal laws for identifying and codifying a civilian’s criminal act. The plain language of the Social Security Act does not carve out an exception for military personnel or suggest that criminal offenses in the Uniform Code of Military Justice are not considered criminal offenses when applying the suspension provisions. Likewise, 20 C.F.R. § 404.468 does not include an exception for military tribunal decisions.

     I was not aware that they had been excluding those imprisoned due to military criminal offenses from having their benefits suspended.

Interview With President Of ALJ Union

     Federal News Network has posted an interview with the president of the union that represents Social Security's Administrative Law Judges (ALJs). It's obvious they're feeling beleaguered. I think they, like others, are in the mode of trying to stall the Trump Administration to prevent irreparable damage until after the election, hoping there will be a new Administration next year which will have a dramatically different outlook. They must also hope that if there is a change in the occupant of the White House next January that Andrew Saul does not try to stay on as Commissioner.