Midwest Disability, P.A. Midwest Disability, P.A. Midwest Disability, P.A.

Who Needs an Appointment?

The Social Security Administration (SSA) is an independent agency that exists outside the federal executive departments and the Executive Office of the President. The powers and duties of administering the Social Security program fall upon the Commissioner of Social Security. Notwithstanding, the Commissioner is appointed by the President, and may be removed from office only pursuant to a finding by the President of malfeasance in office or neglect of duty (42 USC ยง 902). The last appointed Commissioner served from 2007 to 2013. At present, there is no Deputy Commissioner. (Likewise, the President alone appoints the Deputy Commissioner). What we have today is an Acting Commissioner serving without an appointment.

A 2016 decision by the Tenth Circuit Court of Appeals highlights the importance of the Appointments Clause in political accountability, preventing diffusion of power, and assuring a higher quality of officers. In Bandimere v. SEC, the Court set aside an independent agency decision, because the inferior officer presiding over the hearing held his office unconstitutionally. The question arises whether SSA's Acting Commissioner, not to mention the SSA's corps of administrative law judges (ALJs), also serve in violation of the principles behind the Appointments Clause.

Mere performance of the Commissioner's duties on a temporary and limited basis should not by itself violate the Appointments Clause. In a 2003 Memorandum Opinion, the Deputy Counsel to the President opined that the Acting Director of OMB is an inferior officer, citing United States v. Eaton, where the Court held that performance of the duties of a superior officer by an inferior officer for a limited time, under special and temporary conditions, does not transform the inferior officer into the superior and permanent official.

While these "special and temporary conditions" may apply to the Acting Commissioner, one wonders how many years qualify as "temporary." Moreover, SSA employs hundreds of ALJs on a more permanent basis to collectively handle hundreds of thousands of hearings a year. As the dissent in Bandimere points out, there is concern that the ALJs will lose their civil service protections without an appointment from the President.

MIDWEST DISABILITY office locations

Midwest Disability, P.A.
408 Northdale Boulevard Northwest
Coon Rapids, MN 55448
Toll Free: 888-351-0427
Fax:763-862-7521
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