Two years, we asked whether Administrative Law Judges (ALJs) were constitutionally appointed, following the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018). Lucia found the SEC ALJs unconstitutional under the Appointments Clause of the U.S. Constitution. Although the Court did not rule on the validity of SSA ALJs, SSA ultimately reappointed all its ALJs and issued Social Security Ruling (SSR) 19-2p, which addressed pending cases decided before the reappointments. There have been a number of legal challenges to decisions rendered by ALJs before reappointment. And the issue continues to be litigated. See the July 2018, April 2019, and January 2020 editions of this newsletter for more on Lucia and its aftermath.
Now the Supreme Court’s decision in Seila Law LLC v. Consumer Financial Protection Board, — Sup. Ct. —, 2020 WL 3492641 (June 29, 2020), raises the specter of whether SSA Commissioner Andrew Saul’s appointment is constitutional. In Seila Law, a divided court found the restrictions Congress had placed on the President’s ability to remove the Director of the CFPB were unconstitutional. The Director, like the Commissioner of SSA, could only be removed for cause, rather than at the will of the President. Chief Justice John Roberts, writing for the majority, ruled removal for cause should be limited to multimember bodies or inferior officers, and not to a single head of an agency such as the CFPB.
Chief Justice Roberts distinguished the CFPB from other agencies led by a single administrator, claiming other agency heads do not have the regulatory and enforcement authority comparable to the CFPB. But Justice Kagan’s dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Breyer, pointed out that SSA and at least three other agencies have structures similar to the CFPB. There is an argument that the creation of Social Security Advisory Board (SSAB) at the same time Congress established SSA as an independent agency protects SSA from the strictures of the Court’s Seila Law decision. But the question of whether decisions issued in the name of the Commissioner by ALJs and the Appeals Council are valid will likely be litigated. As with practices developed after Lucia, advocates should consider raising the validity of current decisions at hearings and at the Appeals Council.