For the second time this week, the Supreme Court on Wednesday will examine how government officials are to be appointed. The case involves a different kind of judge than the ones involved in Monday’s hearing. As usual, the audio portion (but not the video) will be available at c-span.org/supremecourt
Hearing starts at 10 a.m.:
Carr v. Saul, Social Security Commissioner, and Davis v. Saul
Background: The Supreme Court on Wednesday continues to work its way through the ranks of government officers, deciding what the Constitution says about their appointments. This time, the Court is dealing with a different part of the Appointments Clause, and a different issue, than was at stake in the Monday hearing. Because of those differences, the Wednesday hearing does not involve the larger issues of presidential power and checks and balances involving that power. Its outcome, though, will still be important, because it will affect people’s right to valuable government benefits.
This time, the Court turns its attention to administrative law judges who hold hearings in two kinds of cases involving Social Security benefits – those involving disability claims, and those involving claims for financial need resulting from age or disability (called “supplemental security income”). (NOTE: These cases do not involve Social Security pensions for the elderly; those benefits are automatic for anyone who has paid into the system and who reaches the eligible age.)
In the two cases that were combined for this hearing, the judges who held hearings on such benefit cases had been appointed to their posts by a process within the agency, not by the head of the agency. In short, they got their jobs outside of the requirements of the second part of the Appointments Clause. They previously were treated as employees, not as “officers of the United States.”
The first part of the Clause requires appointment by only one means, nomination by the President and approval by the Senate. That is the part that was at issue on Monday, but it is not at issue on Wednesday. Instead, this case deals with the second part, which allows “inferior officers” to be chosen either by the President, by a court, or by the head of a government department.
Three years ago, the Supreme Court ruled that administrative law judges who hold hearings in Securities and Exchange Commission cases were “inferior officers” who had to be chosen, at least, by the head of the SEC. Until that ruling, they had been chosen within the staff.
After that decision, the head of the Social Security Administration concluded that the administrative law judges at that agency had not been properly named under that part of the Appointments Clause, and cured the problem by officially naming them to their posts. That issue is not before the Court.
The dispute now before the Supreme Court is the fate of those individuals seeking benefits if their claims were denied by a judge not properly named. In other words, what is the remedy for the prior lack of a proper appointment? Were they entitled to a new hearing before a judge who was properly chosen? If not, why not?
The question before the Court: Does a person whose claim for disability and financial need benefits under Social Security has been denied by a judge lose the right to make that objection in court (and thus lose the right to a new hearing before one validly named) if they failed to raise the issue first at that hearing?
Significance: While the outcome of these combined cases will be of keen interest to the particular individuals involved, and perhaps thousands of others who share their plight, the question is quite narrowly confined to the remedy issue rather than to a much more significant constitutional question about appointment of government officers.
Beyond the specifics, the Court’s coming ruling perhaps could provide new guidance to lower courts on how to handle the so-called “exhaustion requirement” – the significant administrative law question of when someone appearing before a government agency must raise an issue in order to avoid forfeiting it for later court review. For example, the Court might make clearer than it now is whether the requirement does not apply if the agency simply has no power to decide a constitutional question even if raised.
