... [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.
... 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. ...
... 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. ...
