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Post by jimmyjiggles on May 18, 2022 19:44:57 GMT -5
If you apply the logic of the SEC case today, then all disability claims are entitled to a federal trial. Claimants will be waiting so long once the Court eliminates ALJs. From a quick reading, there a some pretty important distinctions in that Jarkesey case (which I offer no opinion on, I seriously looked for about 2 minutes) from what SSA ALJs do. The SEC ALJ imposed hefty civil fines. SSA ALJs have no such power. Lucia concerned SEC ALJs as well. The important criteria as found by the 5th circuit is stated as: “[SEC ALJs] are sufficiently important to executing the laws that the Constitution requires that the President be able to exercise authority over their functions. Specifically, SEC ALJs exercise considerable power over administrative case records by controlling the presentation and admission of evidence; they may punish contemptuous conduct; and often their decisions are final and binding. Lucia, 138 S. Ct. at 2053–5.” I’m not sure what is meant by “punishing contemporaneous conduct,” but if it means punishing the conduct during a hearing (which it appears to), then I don’t see a lot of difference between SEC ALJs and any other ALJ. The language and analysis comes straight from Lucia, which everyone has viewed as applying to other ALJs as well. Of course I assume this will be appealed to the USSC, the one that at the time of Lucia had two or three votes for finding everyone in the fed to be an at will employee, and may now have five votes for that proposition, so yeah, not good. I don’t think that there will be jury trials for SSA though, since disability hearings do not involve fines or appear to implicate the 7th amendment. More likely ALJs will be downgraded to something like hearing officers, which may well be a change in form over substance for the most part. Nevertheless the independence of the ALJ Corp appears to be coming to an end. Fortunately for SSA ALJs, the claimants “bar,” such as it is, has little money and less influence, so the actual likelihood of losing your job for “political” considerations is probably about zero even without the removal protections enjoyed currently. |
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Post by generalsherman on May 18, 2022 19:59:35 GMT -5
I have a much more nihilistic view of this, which is that if removal protection goes away, ALJ and other federal jobs will become perfect little plums to hand out in a modern-day spoils system.
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Post by jagvet on May 18, 2022 20:15:06 GMT -5
I have a much more nihilistic view of this, which is that if removal protection goes away, ALJ and other federal jobs will become perfect little plums to hand out in a modern-day spoils system. Yes, sir, General. I agree with you. |
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Post by neufenland on May 18, 2022 20:50:02 GMT -5
From a quick reading, there a some pretty important distinctions in that Jarkesey case (which I offer no opinion on, I seriously looked for about 2 minutes) from what SSA ALJs do. The SEC ALJ imposed hefty civil fines. SSA ALJs have no such power. Lucia concerned SEC ALJs as well. The important criteria as found by the 5th circuit is stated as: “[SEC ALJs] are sufficiently important to executing the laws that the Constitution requires that the President be able to exercise authority over their functions. Specifically, SEC ALJs exercise considerable power over administrative case records by controlling the presentation and admission of evidence; they may punish contemptuous conduct; and often their decisions are final and binding. Lucia, 138 S. Ct. at 2053–5.” I’m not sure what is meant by “punishing contemporaneous conduct,” but if it means punishing the conduct during a hearing (which it appears to), then I don’t see a lot of difference between SEC ALJs and any other ALJ. The language and analysis comes straight from Lucia, which everyone has viewed as applying to other ALJs as well. Of course I assume this will be appealed to the USSC, the one that at the time of Lucia had two or three votes for finding everyone in the fed to be an at will employee, and may now have five votes for that proposition, so yeah, not good. I don’t think that there will be jury trials for SSA though, since disability hearings do not involve fines or appear to implicate the 7th amendment. More likely ALJs will be downgraded to something like hearing officers, which may well be a change in form over substance for the most part. Nevertheless the independence of the ALJ Corp appears to be coming to an end. Fortunately for SSA ALJs, the claimants “bar,” such as it is, has little money and less influence, so the actual likelihood of losing your job for “political” considerations is probably about zero even without the removal protections enjoyed currently. Well, that and the idea of consistency in, and reliance on, the rule of law. But hey, we'll get to read a lot about John Locke in judicial opinions! I should have been a dentist. Maybe it's not too late? I can probably do it in the Caribbean without having to go back and do the science prerequisites.... |
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Post by superalj on May 19, 2022 8:08:29 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong. You are wrong. This POTUS actually removed Commissioner Andrew Saul and his deputy under authority of the appointments clause despite Saul's statutory tenure. This POTUS can remove any or all ALJs if he wishes. No need to wait until the next POTUS to worry about it. If Biden fired all ALJs today, he could open over a thousand senior patronage ALJ slots. Hey I’m not shedding any tears for Saul and his sycophants nor do I worry about POTUS getting rid of us. I think this is an issue for the future and I’ve seen a few rep briefs that argue ALJs are unconstitutionally appointed due to removal protections. My concern is once this reaches SCOTUS and we have a POTUS less sympathetic to our union and removal protections, we may have to worry about patronage issues. |
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Post by rp on May 19, 2022 9:20:45 GMT -5
I have not completely digested this opinion but I would note that the holding appears to rest on the 7th Amendment, which provides:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
So my question is this: If originalism is the new majority philosophy on SCOTUS, how can any statutory scheme such as at issue here be a “suit at common law?”
I suggest that it cannot. But I am in no way a legal scholar! 😂
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Post by hillsarealive on May 19, 2022 10:55:24 GMT -5
I have not completely digested this opinion but I would note that the holding appears to rest on the 7th Amendment, which provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” So my question is this: If originalism is the new majority philosophy on SCOTUS, how can any statutory scheme such as at issue here be a “suit at common law?” I suggest that it cannot. But I am in no way a legal scholar! 😂 By using weak analogies and motivated reasoning. Dress up your analysis with some historical trappings but don't consult any historians. It is not hard. If you can hold a crayon, you can be an originalist. Alright, now I'm getting off my soapbox. Ol' HillsAreAlive knows when it's time to go. |
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Post by neufenland on May 19, 2022 12:20:24 GMT -5
I have not completely digested this opinion but I would note that the holding appears to rest on the 7th Amendment, which provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” So my question is this: If originalism is the new majority philosophy on SCOTUS, how can any statutory scheme such as at issue here be a “suit at common law?” I suggest that it cannot. But I am in no way a legal scholar! 😂 By using weak analogies and motivated reasoning. Dress up your analysis with some historical trappings but don't consult any historians. It is not hard. If you can hold a crayon, you can be an originalist. Alright, now I'm getting off my soapbox. Ol' HillsAreAlive knows when it's time to go. Did they have crayons in 1789? |
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Post by Prrple on May 19, 2022 13:11:07 GMT -5
It seems like the entire cadre of Article I judges are at risk, until you look at Monday's decision in Patel v. Garland. Link: www.scotusblog.com/2022/05/justices-split-over-question-of-federal-court-review-in-immigration-cases/Compare that with granting of cert on the same day on these SEC cases. www.scotusblog.com/2022/05/justices-grant-review-in-two-cases-that-test-jurisdiction-of-district-courts/This quote from Scotusblog re Patel, below and from first link ( emphasis mine), is key. The dissent says that the majority is empowering Article I judges, and insulating them from review by Article III judges. - Justice Neil Gorsuch filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. He led with the danger of administrative power and the consequences of the court’s opinion for immigrants: “Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants."
Both of these are couched in terms of the jurisdiction of Article III courts compared to Article I administrative proceedings before Article I judges.
Interesting times
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Post by hillsarealive on May 19, 2022 14:55:45 GMT -5
By using weak analogies and motivated reasoning. Dress up your analysis with some historical trappings but don't consult any historians. It is not hard. If you can hold a crayon, you can be an originalist. Alright, now I'm getting off my soapbox. Ol' HillsAreAlive knows when it's time to go. Did they have crayons in 1789? Lol, this deserves an originalist answer. Yes, they did. From Samuel Johnson's Dictionary (1755 1st ed): Cra'yon. n.s. [crayon, French.] 1. A kind of pencil; a roll of paste to draw lines with. |
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Post by neufenland on May 19, 2022 15:52:40 GMT -5
Did they have crayons in 1789? Lol, this deserves an originalist answer. Yes, they did. From Samuel Johnson's Dictionary (1755 1st ed): Cra'yon. n.s. [crayon, French.] 1. A kind of pencil; a roll of paste to draw lines with. I'll allow it, but only if you can prove it was made with hand tools. |
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Post by johnthornton on May 19, 2022 19:42:32 GMT -5
www.vox.com/2022/5/19/23130569/jarkesy-fifth-circuit-secIf Elrod’s decision stands, it could throw much of the federal government into chaos At least some of those 30 agencies that use ALJs would lose this adjudicative capacity if Elrod’s opinion stands, though Elrod does place one significant limit on her third holding. ALJs are civil servants, who can only be fired for limited reasons by the SEC’s commissioners, and only after they’ve received a hearing from an agency known as the Merit Systems Protection Board. The SEC’s commissioners, meanwhile, can only be fired by the president for cause. According to Elrod, the fact that “SEC ALJs are insulated from the President by at least two layers of for-cause protection from removal” renders them unconstitutional. A similar structure exists in the Social Security Administration, which employs nearly 1,700 ALJs to adjudicate disputes over who is entitled to benefits. Like SEC commissioners, the head of the Social Security Administration “may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office.” If Elrod’s third attack on the SEC is correct, in other words, then it is likely that the Social Security Administration’s small army of ALJs also are not allowed to hear benefits disputes because they would also be too hard for the president to fire. Preventing these ALJs from hearing cases would throw the Social Security Administration into turmoil. It could also completely overwhelm the federal court system, because Article III courts simply do not have the personnel necessary to hear all of the benefits disputes currently handled by ALJs.
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Post by Thomas fka Lance on May 20, 2022 7:31:51 GMT -5
From the claimant's perspective, there are costs involved with filing in federal courts, and there are electronic (only) filing requirements in the federal court system.
I seriously doubt the federal courts would "waive" either of these for SSA claimants
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Post by superalj on May 20, 2022 9:07:59 GMT -5
Hopefully this case will be heard en banc and sorted out.
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Post by carrickfergus on May 20, 2022 9:50:19 GMT -5
First, the Vox article got a couple of things wrong, although I agree with the overall tone. The COSS has never been the dual layer of protection problem for SSA ALJs (and even if she was at one point, recent events have now shown that she has no for-cause protection), it's the MSPB.
That being said, I think parts 1 and 2 won't impact SSA ALJs. Part 3 is a pickle, but even the majority left a little wiggle room: "Yet not all removal restrictions are constitutionally problematic. “Inferior officers” may retain some amount of for-cause protection from firing. See, e.g., Morrison v. Olson, 487 U.S. 654, 691–92 (1988)."
I also think characterizing SSA ALJs as inferior officers is a not fait accompli. I know that SSA did so in order to arrive at a quick solution to preempt the Appointments Clause issue, but this has not yet been through the courts. Just because someone says something doesn't mean it is true. The current AALJ leadership is fighting against this. (The big question is who will have standing to make the argument in court.) But if it is eventually decided that SSA ALJs are not inferior officers, that would undercut the majority's reasoning.
But even if SSA are inferior officers, the dissent (who is constrained by Lucia from telling us why SEC ALJS aren't inferior officers) explains persuasively (to me, anyway) why the dual layer protection isn't a constitutional problem for SEC ALJs because they don't make policy.
Another thing to consider is the practical outcome. If a firebomb is thrown into OHO, I imagine that there are some members of SCOTUS who would happily watch it burn, but it would be a conflagration. (Note how the relevant court decisions up to this point were careful to sidestep the implications to SSA.) But the dual layer of protection problem would go away if the MSPB adjudicators were not APA ALJs. Blowing up that structure would cause a relatively minor aftershocks across the country. Then again, our lawmakers can't get out of their own way to do much of anything.
Finally, for those reps who are considering this argument in appealing a denial, be careful what you wish for.
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Post by neufenland on May 20, 2022 10:05:27 GMT -5
First, the Vox article got a couple of things wrong, although I agree with the overall tone. The COSS has never been the dual layer of protection problem for SSA ALJs (and even if she was at one point, recent events have now shown that she has no for-cause protection), it's the MSPB. That being said, I think parts 1 and 2 won't impact SSA ALJs. Part 3 is a pickle, but even the majority left a little wiggle room: "Yet not all removal restrictions are constitutionally problematic. “Inferior officers” may retain some amount of for-cause protection from firing. See, e.g., Morrison v. Olson, 487 U.S. 654, 691–92 (1988)." I also think characterizing SSA ALJs as inferior officers is a not fait accompli. I know that SSA did so in order to arrive at a quick solution to preempt the Appointments Clause issue, but this has not yet been through the courts. Just because someone says something doesn't mean it is true. The current AALJ leadership is fighting against this. (The big question is who will have standing to make the argument in court.) But if it is eventually decided that SSA ALJs are not inferior officers, that would undercut the majority's reasoning. But even if SSA are inferior officers, the dissent (who is constrained by Lucia from telling us why SEC ALJS aren't inferior officers) explains persuasively (to me, anyway) why the dual layer protection isn't a constitutional problem for SEC ALJs because they don't make policy. Another thing to consider is the practical outcome. If a firebomb is thrown into OHO, I imagine that there are some members of SCOTUS who would happily watch it burn, but it would be a conflagration. (Note how the relevant court decisions up to this point were careful to sidestep the implications to SSA.) But the dual layer of protection problem would go away if the MSPB adjudicators were not APA ALJs. Blowing up that structure would cause a relatively minor aftershocks across the country. Then again, our lawmakers can't get out of their own way to do much of anything. Finally, for those reps who are considering this argument in appealing a denial, be careful what you wish for. A year ago, I would have been skeptical of assertions that five Justices on the Supreme Court of the United States didn't care about the practical implications of their rulings. In light of recent news, I am not skeptical anymore; I'm very afraid. I have no faith that they will keep the APA intact. They'll also raise a middle finger to the country while shredding it. All jokes about how ALJs weren't used during witchcraft trials in the 15th Century English Common Law aside, it's a scary time. |
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Post by ssaogc on May 20, 2022 10:17:18 GMT -5
First, the Vox article got a couple of things wrong, although I agree with the overall tone. The COSS has never been the dual layer of protection problem for SSA ALJs (and even if she was at one point, recent events have now shown that she has no for-cause protection), it's the MSPB. That being said, I think parts 1 and 2 won't impact SSA ALJs. Part 3 is a pickle, but even the majority left a little wiggle room: "Yet not all removal restrictions are constitutionally problematic. “Inferior officers” may retain some amount of for-cause protection from firing. See, e.g., Morrison v. Olson, 487 U.S. 654, 691–92 (1988)." I also think characterizing SSA ALJs as inferior officers is a not fait accompli. I know that SSA did so in order to arrive at a quick solution to preempt the Appointments Clause issue, but this has not yet been through the courts. Just because someone says something doesn't mean it is true. The current AALJ leadership is fighting against this. (The big question is who will have standing to make the argument in court.) But if it is eventually decided that SSA ALJs are not inferior officers, that would undercut the majority's reasoning. But even if SSA are inferior officers, the dissent (who is constrained by Lucia from telling us why SEC ALJS aren't inferior officers) explains persuasively (to me, anyway) why the dual layer protection isn't a constitutional problem for SEC ALJs because they don't make policy. Another thing to consider is the practical outcome. If a firebomb is thrown into OHO, I imagine that there are some members of SCOTUS who would happily watch it burn, but it would be a conflagration. (Note how the relevant court decisions up to this point were careful to sidestep the implications to SSA.) But the dual layer of protection problem would go away if the MSPB adjudicators were not APA ALJs. Blowing up that structure would cause a relatively minor aftershocks across the country. Then again, our lawmakers can't get out of their own way to do much of anything. Finally, for those reps who are considering this argument in appealing a denial, be careful what you wish for. A year ago, I would have been skeptical of assertions that five Justices on the Supreme Court of the United States didn't care about the practical implications of their rulings. In light of recent news, I am not skeptical anymore; I'm very afraid. I have no faith that they will keep the APA intact. They'll also raise a middle finger to the country while shredding it. All jokes about how ALJs weren't used during witchcraft trials in the 15th Century English Common Law aside, it's a scary time. It is indeed a scary time. As Chief Justice Roberts said when the SCOTUS upheld the Affordable Care Act. “Elections have consequences” the judiciary has been remade and it seems to be on a mission to upend the status quo |
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Post by carrickfergus on May 20, 2022 10:28:21 GMT -5
First, the Vox article got a couple of things wrong, although I agree with the overall tone. The COSS has never been the dual layer of protection problem for SSA ALJs (and even if she was at one point, recent events have now shown that she has no for-cause protection), it's the MSPB. That being said, I think parts 1 and 2 won't impact SSA ALJs. Part 3 is a pickle, but even the majority left a little wiggle room: "Yet not all removal restrictions are constitutionally problematic. “Inferior officers” may retain some amount of for-cause protection from firing. See, e.g., Morrison v. Olson, 487 U.S. 654, 691–92 (1988)." I also think characterizing SSA ALJs as inferior officers is a not fait accompli. I know that SSA did so in order to arrive at a quick solution to preempt the Appointments Clause issue, but this has not yet been through the courts. Just because someone says something doesn't mean it is true. The current AALJ leadership is fighting against this. (The big question is who will have standing to make the argument in court.) But if it is eventually decided that SSA ALJs are not inferior officers, that would undercut the majority's reasoning. But even if SSA are inferior officers, the dissent (who is constrained by Lucia from telling us why SEC ALJS aren't inferior officers) explains persuasively (to me, anyway) why the dual layer protection isn't a constitutional problem for SEC ALJs because they don't make policy. Another thing to consider is the practical outcome. If a firebomb is thrown into OHO, I imagine that there are some members of SCOTUS who would happily watch it burn, but it would be a conflagration. (Note how the relevant court decisions up to this point were careful to sidestep the implications to SSA.) But the dual layer of protection problem would go away if the MSPB adjudicators were not APA ALJs. Blowing up that structure would cause a relatively minor aftershocks across the country. Then again, our lawmakers can't get out of their own way to do much of anything. Finally, for those reps who are considering this argument in appealing a denial, be careful what you wish for. A year ago, I would have been skeptical of assertions that five Justices on the Supreme Court of the United States didn't care about the practical implications of their rulings. In light of recent news, I am not skeptical anymore; I'm very afraid. I have no faith that they will keep the APA intact. They'll also raise a middle finger to the country while shredding it. All jokes about how ALJs weren't used during witchcraft trials in the 15th Century English Common Law aside, it's a scary time. "She (the administrative state) drowned (from being thrown in the water by certain think tanks which are the political power brokers), so she must have been a witch!" |
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Post by ba on May 20, 2022 10:58:04 GMT -5
Hopefully this case will be heard en banc and sorted out. You must be new to the Fifth Circuit. That’s not going to happen. The en banc court would be just as big a disaster. |
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Post by neufenland on May 20, 2022 11:03:59 GMT -5
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