Bye, Bye Andrew Saul!

     The Supreme Court has issued its opinion in Seila Law v. CFPB. The Court held that the position of Director of the Consumer Finance Protection Board is unconstitutional because the incumbent serves a set five year term and may only be removed for cause. The holding is that this unconstitutionally removes the President's authority to manage the Executive Branch.

     The position of Director of the CFPB is almost identical to that of Commissioner of Social Security in that the Commissioner serves a set six year term and may only be removed for cause. I see no reasonable way of distinguishing the two. The position of Commissioner of Social Security as currently constituted is unconstitutional.

     Where does this leave Andrew Saul? The Seila Law opinion doesn't seem to leave open the possibility that the Director of the CFPB just remains in her position while now serving at the pleasure of the President. The Court clearly ruled that the action that the Director of the CFPB had taken that was on appeal was invalid. Thus, I have to say that Andrew Saul just lost his job. He ought to resign immediately in order to avoid any confusion. However, "confusion" seems to be this Administration's middle name.

     Where does this leave the Social Security Administration? Well, even though it's not part of a cabinet level department, it's no longer an independent agency. It could be made an independent agency again by replacing the Commissioner with a Board, which the agency had in its earliest days, but I doubt that would be practicable. The agency could be stuffed back into some cabinet level department as it once was but that seems unlikely. It could be made a cabinet level department, which would be my preference. It could stay neither fish nor fowl, neither a cabinet level department nor an independent agency. I don't think that this Congress will act on the issue. We'll see what, if anything, the next Congress does.

     Where does it leave administrative decisions made by the Social Security Administration that are now on appeal? The agency's Administrative Law Judges (ALJs) made decisions on a delegation of authority from the Commissioner. So too do members of the Appeals Council. Are those decisions made heretofore now invalid? I expect this issue will be litigated. For matter, what about contracting decisions and personnel decisions?

     By the way, the majority opinion contains this language:

... [T]he CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. ...

    In successive sentences the Chief Justice refers to the head of the Social Security Administration as its "Administrator" and as its "Director" rather than as its Commissioner.