New executive order from White House threatens fair adjudication of SSDI cases

          New executive order from White House threatens fair adjudication of SSDI cases

The past week’s news proves that if the Trump administration isn’t able to undermine Americans’ earned benefits in one way, it will find another.  That’s exactly what happened when the president issued an executive order changing the way federal administrative law judges (ALJs) are selected.  What sounds like an inside Washington procedural issue will affect millions of Social Security disability claimants and their families.

Most of the government’s 1,900 ALJs are assigned to adjudicate Social Security Disability Insurance (SSDI) claims.  President Trump has loosened the standards for appointing ALJs in a manner that makes it easier for the administration to appoint less qualified, but more politically loyal judges.  As the Washington Post explains:

“[ALJs] would be selected by agency heads without first being vetted by the Office of Personnel Management as was the procedure. That makes the process more vulnerable to politicization.” – Washington Post.

The president of the Association of Administrative Law Judges told the news site Government Executive that the executive order is a blatant attempt to politicize the civil service that will hurt disabled Americans:

“They could hire candidates who have a certain view of claims under the disability provisions of the Social Security Act, and that the view perhaps would be that claims ought to be denied . . . If I were an American citizen, I would be very concerned that I am no longer guaranteed an independent, impartial administrative law judge to adjudicate my claim against a federal agency.” – Marilyn Zahm, AALJ president.

Those politically-appointed judges could reject valid disability claims simply because the administration doesn’t support the program.  The president’s 2019 budget would slash SSDI by $64 billion over ten years.  His budget director, Mick Mulvaney, famously said last year that he doesn’t consider SSDI to be part of Social Security even though “Social Security” is part of its name.

Add into the mix the fact that Republicans cut the Social Security Administration’s operating budget by 10% (adjusted for inflation) between 2010 and 2017, forcing the agency to cutback customer service to claimants.  In combination, these attacks on SSDI amount to a blatant reversal of candidate Trump’s promise “not to touch” Social Security.

The Trump administration cited a Supreme Court decision, Lucia v. Securities and Exchange Commission (SEC), which moved ALJs at the SEC out of the purview of the Office of Personnel Management and into the realm of political appointments, to justify the new rule.  But the Supreme Court decision did not require the administration to politicize the appointment of Social Security ALJs, making the executive order a clear case of overreach on Trump’s part.

Reversing the executive order by law would require congressional action. House Democrats Bobby Scott (D-VA), Elijah Cummings (D-MD), and David Cicilline (D-RI immediately registered concern about the Trump administration’s rule:

“When Americans bring disputes before the federal government – whether it’s related to workplace discrimination activities, or eligibility for Social Security or Medicare benefits – they are entitled to have their cases heard by impartial ALJ’s.” – Reps. Scott, Cummings, and Cicilline.

The Congressmen offered an amendment to the Office of Personnel Management appropriations bill that would have defunded the president’s executive order, but were slapped down by Republicans on the House Rules committee.

Now, the House Social Security subcommittee is scrutinizing the new ALJ rule. The subcommittee will hold hearings next week featuring testimony from acting Social Security commissioner Nancy Berryhill.  A representative of the National Organization of Social Security Claimants’ Representatives may also testify.

Meanwhile, advocacy groups are considering challenging the legality of the ALJ Executive Order in U.S. District Court.


For more on this topic, watch “Behind the Headlines” from Capitol Hill here.