an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How The Court's Sarbanes-Oxley Decision Affects Social Security (and Other) Policies
Yesterday's NY Times carried a story about tensions between Congress and the Social Security Administration (SSA), along with tensions inside the SSA, over the critical task of how to keep the numbers concerning social security honest. The key figure is the agency's chief actuary; the current actuary has served 37 years and apparently has earned Congress's respect for his independence, accuracy, and reliability. His independence is legally protected by standard "for-cause" removal provisions -- the head of the SSA cannot fire the actuary at will (and therefore pressure the actuary) but only if specific, demonstrated good-cause reasons exist. This is especially important because there is, in fact, tension between the current head of the SSA and the actuary over some issues. Yet if the comments from House and Senate members in the Times story are accepted, this system has worked; for all the political and policy struggles over social security, at least policymakers have been able to rely on the numbers the chief actuary has generated.
Now here's the rub: the SSA is an independent agency, headed by someone President Bush appointed who will serve until 2013. President Obama cannot fire him, even if they disagree over policy; the head of the SSA is also protected by for-cause removal provisions. Thus, to protect the independence of the chief actuary, Congress has created a structure that looks much like the one the Court just held unconstitutional in the Free Enterprise case: the chief actuary is an independent official inside an independent agency. The President is twice removed from being able to exercise any direct control over the chief actuary: once, by the independence of the SSA itself, and then again, by the independence of the chief actuary within the SSA.
This recent example highlights two implications of the Court's Free Enterprise decision. The first is one rather strange consequence: to protect the President's power -- which is the basis for the Court's decision -- the head of an independent agency like the SSA has to be given the power to fire at will someone like the chief actuary. Congress cannot make this official independent; Congress cannot protect him/her with good-cause removal protections. But the head of the SSA was appointed by President Bush and President Obama has no control over him. How does it protect the President's power to give the head of the SSA (or similar agencies) -- officials the current President did not appoint and cannot remove -- more power? The second implication is this: if Congress concludes public policy is well served by creating officials who are independent, inside agencies like the Federal Reserve, the SEC, the FCC, SSA, and other independent agencies, should that option be unconstitutional? Is the best understanding of the Constitution, and the President's Art. II powers, one in which this option is taken off the table, in contexts like that described in the Times story?
Perhaps there are enough distinctions between what the chief actuary in SSA does and what the Board at issue in the Sarbanes-Oxley case does, so that the former structure is not necessarily unconstitutional merely because the Court concluded the latter was. And even if the independence of the chief actuary is unconstitutional, it might be that no one will ever have legal standing to challenge that structure in court. But at a minimum, the Court's decision in the Sarbanes-Oxley case raises very serious constitutional questions about one of the most critical tasks in administering social security: how to design the administrative system so that the numbers, on which all policy decisions are based, are accurate, reliable, and honest. The structure for doing that for SSA, which has been in place since social security was created, is now cast into serious constitutional doubt by the Court's recent decision in the Free Enterprise case. Posted
by Rick Pildes [link]
Many have argued that ALL the "alphabet agencies" FAA, FTC, etc., are as situated unconstitutional. The argument goes that the SCOTUS has created a legal fiction--out-right lied thru their teeth, actually--by justifying the view that they are Constitutional by saying that they hold/exercise only *quasi* legislative/executive/judicial powers. Yet as critics have pointed out, when one is fined millions of dollars by the FCC for "obscene" on-air language, the fine is paid with REAL, not *quasi* dollars; and if one is found guilty by an FTC or FDA administrative law judge of selling adulterated drugs and sentenced to jail, one cools one's heels in a REAL jail--not a *quasi* one.
Seen in the above light, many argue that the proper place for these agencies is within the Administrative/Executive branch where power, authority and responsibility can be properly mated.
A classic example of the perils of the status quo took place during the Clinton Administration when, with both the President and VP out of the country during a trade dispute with Japan the Federal Maritime Commission--ON ITS OWN WITH NO CONSULTATION WITH THE PRESIDENT,SEC OF STATE OR DEFENSE, AND USING CURRENT STATUTORY AUTHORITY--ordered the Coast Guard to intercept Japanese ships with orders to fire warning shots if they refused to turn back--a potential act of war.
That such a little-known "independent" "administrative" agency should have the power to order independently on its own, and with no consultation, what is, in effect, an act of war with a foreign nation is an intolerable state of affairs and only spotlights the inherent illogic of the present position/role of the "independent" Administrative Agencies within our governmental structure.