I just read a very interesting paper from my colleague Dick Pierce that I think deserves more public attention: What Should We Do About Administrative Law Judge Disability Decisionmaking? Pierce looks at the evidence that Administrative Law Judges have been granting Social Security disability benefits much too often, to applicants who are not actually eligible for benefits. According to Pierce, the result has been a very significant cost to the taxpayer, as the costs of disability benefits granted by Social Security Administration Administrative Law Judges (SSA ALJs) amounts to about 2 per cent of total federal spending in the 2011 budget. Pierce also argues that the current system of disability benefit decisionmaking is unconstitutional on Appointments Clause grounds. A taste of the analysis:
SSA ALJs are insulated from presidential control by three layers of restrictions on the President’s power over the executive branch. An SSA ALJ can only be removed by MPSB for “good cause” in response to a petition for removal filed by SSA. An MSPB member can only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.” The Social Security Commissioner can only be removed by the President for “neglect of duty or malfeasance in office.” Since SSA ALJs are officers of the United States, there is no doubt that the three layers of removal limits that insulate SSA ALJs from presidential control are unconstitutional.