I Predict This Will Come To Pass If Biden Is Elected

     From Regulating Impartiality In Agency Adjudication by Kent Barnett, 69 Duke L.J.1695-1748 (2020):

... [T]he majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators [such as Administrative Law Judges] and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal.

This Article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for disciplining and removing agency adjudicators, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a long-standing yet overlooked practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Such self-imposed separation provides a strong theoretical and practical solution for the agency-adjudicator dilemma. ...

    This may be the rare law review article that has an effect on the real world.
     By the way, my assumption here is that in Seila Law v. CFPB the Supreme Court will find the position of director of the Consumer Finance Protection Board to be unconstitutional because the incumbent may only be discharged for cause. Perhaps, I should say I expect that the Supreme Court will hold that while the position itself is constitutional, that the incumbent no longer has protection against being discharged without cause. The same would be the case for the position of Commissioner of Social Security. Administrative Law Judges would be next in line and I expect the same for them. I don't think Seila Law is getting as much attention as it should. Lucia was easily dealt with. Seila Law is a much larger threat to federal administrative law. Probably, the only way to deal with it is what the author of this article suggests, that is assuming that one cares about administrative justice. I think that Democrats care about administrative justice. I think that Republicans are enthralled with the idea of "deconstructing the administrative state." I think the only possible result of that is anarchy but judging by the Trump Presidency, Republicans like anarchy.

This Isn’t Making Sense To Me

     From Federal News Network:

... While the Social Security Administration has been under pressure for not yet rolling out electronic signatures, the agency, which handles Medicare Part B enrollment applications on behalf of the Centers for Medicare and Medicaid Services, is launching an online form to digitize what has been a completely paper-based process. 

“You either walk it into a field office, you fax it in or you mail it in, but ultimately there’s going to be paper involved, David Ellison, SSA’s lead for digital transformation, said last Friday in an ACT-IAC webinar. “Right now, that isn’t happening, with the exception of some fax traffic that we’re picking up.” 

With the pandemic disrupting paper processes, Ellison said SSA is quickly putting together an online form that with have anti-spam CAPTCHA features built-in. 

“It’s not like the old ones, where you look at a grid and you have to pick out the bicycles, and if you get it all wrong, and you have to do it again. With the modern versions, that’s all done in the background,” he said. 

By pushing its anti-fraud measures to the background, Ellison said SSA strikes a balance between providing a straightforward, easy-to-navigate experience for the public, but still keeping fraud measures in place. 

“If someone is misrepresenting themselves, we have a lot of data, like the phone number they’re calling in with. If that’s mismatching with something that we have stored in our back-end systems, because we have a relationship with this citizen, we can steer that caller to someone who maybe is going to handle a fraud scenario, but we want to do it more in the background. We don’t want to expose all the citizens to an uncomfortable experience,” Ellison said. “We’re very lucky right now that these platforms are evolving to collect all this data and to be able to pass it along to our back-end fraud systems. ...

     I don’t understand. Are they designing something to help claimants or to stop fraud? How much fraud could there be in signing up for Medicare Part B? Will they really be treating every case where someone is calling from their child’s phone as if it were possible fraud? 

     Maybe the agency ought to get over its electronic signature paranoia especially for instances that involve a low potential for fraud. It’s not like requiring “wet” signatures gives any real protection against fraud.

Emergency Paid Sick Leave Problems

     From Government Executive:

... The first coronavirus response bill signed into law in mid-March included a provision called the Emergency Paid Sick Leave Act, which provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the coronavirus pandemic. 

Although the Labor Department offered employers a 30-day “non-enforcement period,” that ran out more than a month ago. As of Friday, the Social Security Administration still had not begun offering the benefit, and it has told stakeholders that the Interior Department’s Interior Business Center has said it will not have implemented it in its payroll software until July. 

The Interior Business Center did not respond to a request for comment, but a spokesperson told Federal News Network that it has provided a workaround to customer agencies until it can update the software. 

Couture said that Social Security has declined to use that workaround, proposing that employees file for weather and safety leave instead. Under this plan, employees would be paid their full pay rate, and likely would be forced to pay the remainder back once the new system is in place.  ...

     If you’re wondering what the Department of the Interior has to do with it, the story is that that agency operates something like a contractor. For a price they handle payroll functions for other agencies. I would have thought that Social Security is plenty big enough to handle its own payroll matters but apparently not. 

Memorial Day 2020

Delayed Stimulus Checks For Some On Social Securiy

     Some Social Security beneficiaries are still waiting on their economic stimulus checks, according to CBS News. Of course, the Social Security Administration gets caught in the middle. It's the Treasury which is making the payments.

Is This A Win For The ALJ Union? Seriously, I'm Not Sure

     From Government Executive:

The Federal Labor Relations Authority on Thursday announced that it would stay implementation of a new union contract set to be imposed between the Social Security Administration and the Association of Administrative Law Judges, reversing a previous ruling allowing it to proceed.

The judges union is one of several labor groups challenging the constitutionality of how members of the Federal Service Impasses Panel, which settles intractable disputes that come up during collective bargaining negotiations, are appointed.

In March, the FLRA denied a request from the judges’ union to block the Federal Service Impasses Panel from issuing an imminent decision imposing a new collective bargaining agreement between the union and the Social Security Administration, finding that the request did not fall under the narrow circumstances under which the FLRA can halt the impasses panel’s proceedings. ...

In April, the impasses panel issued a mostly pro-management decision, prompting the union to file a federal lawsuit in U.S. District Court for the District of Columbia, seeking to declare the panel’s decisions null and void. The union argued that because the impasses panel’s decisions cannot be directly appealed and panel members are supervised only by the president, they are principal officers and must receive Senate confirmation.

Although the Social Security Administration has said it would delay implementation of the new union contract due to the lawsuit, on Thursday the FLRA issued a new decision formally staying the panel’s decision from taking effect. In its ruling, the agency said the lawsuit constitutes a new “differentiating circumstance” necessitating this action. ...

Is This A Half Step Forward?

     From Emergency Message EM-20022 issued yesterday:

The purpose of this EM is to provide the Field Office (FO) and Payment Center (PC), and the Office of Hearings Operations (OHO) with temporary supplemental instructions for documenting appointment of a representative while the COVID-19 case processing procedures are in place. ...

To appoint a representative, our regulations require the claimant submit a dated and signed written notice. GN 03910.040 and GN 03940.003 require that the signatures on the notice of appointment and fee agreement be in pen-and-ink to provide a measure of protection of the claimant’s privacy and data integrity. ...

If the claimant’s signature on a notice of appointment (for example, Form SSA-1696) does not meet the standards listed in GN 03910.040 (e.g., signature appears to be electronic or a digitized image of a handwritten signature), follow the instructions below – ... 

Contact the claimant to confirm his or her signature, after verifying identity, and intent to sign following these steps: ...

Confirm that the claimant signed the appointment with intent to sign it using the following script:

• “We have received an appointment form with your electronic signature and need to ask you a few simple questions to confirm you signed it. Did you sign this form?”
• “And you understood that by electronically signing this form, you agreed [insert name of Appointed Representative on the SSA-1696] will now represent you on your claim with SSA, and [he/she] and [his/her] employees can obtain information about your claim from SSA?”...

75% Absentee Rate At Reopened IRS

     From the Washington Post (emphasis added):

The Internal Revenue Service had barely begun bringing its lowest-paid workers back to the office in late April when someone in the Philadelphia call center came down with a fever, forcing the third-floor staff to head home.

Within two days, an employee in the processing center in Kansas City, Mo., who routes paper checks for deposit was sick with coronavirus symptoms, too. Then the husband of a woman in accounts management in the Covington, Ky., office tested positive, leading managers to presume that she was infected.

The three service centers, among 10 campuses nationwide where the IRS is trying to reinstate 11,000 employees, had to partially close for a week for deep cleaning. ...

The tax behemoth that touches virtually every American has made the government’s most aggressive effort so far to recall its workforce. But like other federal agencies following President Trump’s order to reopen the country, the IRS is struggling to ensure the safety of its employees as it tries to chip away at a crushing backlog and serve the public. ...

As of Monday, about 3,000 customer-service and clerical workers had volunteered to return to the office, an absentee rate of almost 75 percent. ...