Foreshadowing At The Supreme Court

      Yesterday the Supreme Court heard oral arguments in the case of Collins v. Mnuchin which concerns two quasi-governmental corporations. The issue was whether in the wake of the Court's Seila Law opinion there was a constitutional problem with the President's inability to remove the heads of these corporations. There is a similar issue affecting the position of Commissioner of Social Security. It was clear from the questions asked that at least two of the justices are already thinking about what they will do when the Social Security case reaches the Court. Below are a couple of excerpts from the transcript of the oral arguments. I'm not including the answers since I think those are much less important to us than the questions.

Justice Alito:  Suppose we were to agree with Mr. Nielson that this can't be distinguished from the -- the head of the Social Security Administration, or suppose we were to overrule Humphrey's Executor, as some members of the Court have suggested. Do you think it would follow that everything ever done by a Social Security administrator or everything ever done by the FCC or one of the other multi-member commissions was void ab initio, they would all be wiped off the books? 

Justice Kagan: I just go back to Justice Alito's question about the Social Security Administration. I'll put some scary sounding numbers on this. The SSA has been led by a single commissioner since 1994 and ever since then, it's rendered 650,000 decisions every year, so that's about 17 million decisions. Now you told Justice Alito, well, maybe there are some exceptions for lower-level employees. I'm not sure that ALJs would qualify as that, and even if they do, let's assume, which I think is probably true, that all of those decisions are rendered pursuant to guidance and rules that the SSA commissioner has enforced. So are we really going to void all of those decisions? ...  But, I mean, are you really making a good faith argument that if there were at --if there were for cause -- excuse me, if there were at will removal of the Social Security Administration that these 17 million decisions would come out differently or, indeed, that any of them would?

Subcommittee Chairs Attack Proposed Grid Rule Changes

     A press release:

Today, House Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement regarding news that a draft proposed rule that would narrow the eligibility criteria for Social Security and Supplemental Security Income (SSI) disability benefits has been sent by the Social Security Administration to the Office of Management and Budget for review: 

“Yet again, the Trump Administration is going out of its way to make it harder for people to qualify for the Social Security disability benefits they have earned. Already, fewer than four in 10 applicants are found eligible for Social Security disability benefits, even after all levels of appeal. This rule would reportedly further restrict eligibility for approximately 500,000 Americans, making it even harder for older, severely disabled people to access the essential income they’re qualified to receive. It is outrageous and cruel that at the eleventh hour and in the middle of a pandemic the Trump Administration is trying to advance yet another harmful cut to Social Security benefits for the most vulnerable Americans.”

Merry Christmas

 

Unions Want Saul Gone

      From Federal Times:

Employees at the Social Security Administration overwhelmingly do not have confidence in their leadership’s ability to successfully direct the agency, according to surveys released by two employee associations Dec. 9.

The American Federation of Government Employees’ Council 220, which represents 26,000 SSA employees, unanimously found no confidence in SSA Commissioner Andrew Saul and Deputy Commissioner David Black.

The Association of Administrative Law Judges, which represents approximately 1,100 administrative law judges who are responsible for making decisions on disability claims at the hearing level, found that 88 percent of their members have no confidence in Saul. And 84 percent of those members expressed no confidence in Theresa Gruber, deputy commissioner for Social Security’s Office of Hearing Operations, and Chief Administrative Law Judge Patrick Nagle. ...

Much of the dissatisfaction stemmed from how agency leaders have managed the COVID-19 pandemic and employee safety concerns. ...

Social Security Works Urges Biden To Fire Saul

      From Government Executive:

A liberal advocacy group focused on preserving and expanding social safety net programs like Social Security and Medicare have urged President-elect Biden to replace the leadership of the Social Security Administration and reverse a number of the Trump administration’s policies in favor of an ethos that supports federal workers.

Social Security Works recently released its “transition report,” dated November 2020, for the incoming Biden administration. Chief among the group’s recommendations is that the next president should “clean house,” forcing Commissioner Andrew Saul to resign or be fired and replacing all political appointees at the agency.

“In only eight of the last 40 years has SSA had Senate-confirmed Democratic leadership,” the organization wrote. “Republican control at the top has brought a number of lower-level appointees whom the Social Security community views as hostile to Social Security. It has also brought harmful regulations, the closing of field offices, reductions in staffing, the termination of annual mailing of earnings statements ... anti-union animus, and other actions and attitudes that have degraded access, diminished service, and reduced confidence in the future of Social Security specifically and government more generally.”

The law states that Saul may only be terminated from his post for “neglect of duty or malfeasance,” but Social Security Works said the recent Supreme Court decision Seila Law LLC v. Consumer Financial Protection Bureau, which limited the independence of the fledgling agency, could grant the president the authority to remove Saul anyway. ...

     Two thoughts: First, does Social Security Works know that Saul wants to stay on? Second, regardless of the position of the new Administration, the issue of the constitutionality of a Social Security Commissioner who can only be fired for cause is headed for the Supreme Court. Attorneys who represent Social Security claimants will take care of litigating that issue but it will take us a couple of years or more. If the new Administration wants to litigate the matter directly with Saul, they could probably get it moved along much faster, perhaps even with asking the Supreme Court to hear the matter directly after a District Court decision. Watch out for the confirmation hearing for Biden's nominee for Solicitor General, whoever that may be. That nominee may be asked about this issue since he or she would be the one responsible for litigating it.

 

Merry Christmas

 

Overruling A Court With The Stroke Of A Pen

      From a notice of rescission of acquiescence published in the Federal Register today:

... On September 23, 2015, we published AR [Acquiescence Ruling] 15-1(4) (80 FR 57418) to reflect the holding in Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). In Radford, the United States Court of Appeals for the Fourth Circuit held that listing 1.04A required a claimant to show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months,” 734 F.3d at 294. Contrary to our policy that the requisite level of severity requires the simultaneous presence of all the medical criteria in paragraph A, the Court of Appeals held that a claimant need not show that each criterion was present simultaneously or in particularly close proximity. 

This rescission notice is the result of publication of the final rule, “Revised Medical Criteria for Evaluating Musculoskeletal Disorders,” published on December 3, 2020 at 85 FR 78164.

Clearing Out The Regulations Cupboard

     The Social Security Administration has asked the approval of the Office of Management and Budget (OMB) for proposed regulations on "Adjudicating Disability Claims in Which We Must Consider Vocational Factors." 

    Don't get excited. It's way too late for these proposed regulations to be finalized during the Trump Administration. It's not even theoretically possible given the notice periods involved. In fact, they'll probably not even be approved for publication as a proposal. 

     I don't want to read too much into this but sending this to OMB isn't something you'd do if you were interested in cooperating with the incoming Biden Administration.