Constitutionality of the Commissioner of Social Security's Tenure Protection ( 2021 )

(Slip Opinion)
Constitutionality of the Commissioner of Social
Security’s Tenure Protection
The President may remove the Commissioner of Social Security at will notwithstanding
the statutory limitation on removal in 42 U.S.C. § 902(a)(3).
The conclusion that the removal restriction is constitutionally unenforceable does not
affect the validity of the remainder of the statute.
July 8, 2021
MEMORANDUM OPINION FOR THE
DEPUTY COUNSEL TO THE PRESIDENT
You have asked about the scope of the President’s constitutional au-
thority to remove the Commissioner of the Social Security Administration
(“SSA”), who by statute may be removed only for neglect of duty or
malfeasance in office. See 42 U.S.C. § 902(a)(3). At the time Congress
enacted the Commissioner’s statutory protection from removal, this Of-
fice observed that the removal restriction presented a serious constitution-
al question, although we did not resolve whether the removal restriction
was in fact unconstitutional. See Letter for Lloyd N. Cutler, Counsel to
the President, from Walter Dellinger, Assistant Attorney General, Office
of Legal Counsel (July 29, 1994) (“1994 Dellinger Letter”).
In Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court recent-
ly concluded that a provision requiring “cause” for the removal of the
Director of the Federal Housing Finance Agency (“FHFA”) is unconstitu-
tional. That case followed Seila Law LLC v. Consumer Financial Protec-
tion Bureau, 140 S. Ct. 2183 (2020), in which the Court held unconstitu-
tional a similar statutory tenure protection conferred on the Director of the
Consumer Financial Protection Bureau (“CFPB”). We think the best
reading of Collins and Seila Law leads to the conclusion that, notwith-
standing the statutory limitation on removal, the President can remove the
SSA Commissioner at will.
I.
The Social Security Administration administers the Old-Age and Sur-
vivors Insurance, Social Security Disability Insurance, Supplemental
Security Income, and Special Benefits for Certain World War II Veterans
1
45 Op. O.L.C. __ (July 8, 2021)
benefits programs. See, e.g., 42 U.S.C. §§ 901(b), 902(a)(4); see generally
Scott D. Szymendera, Cong. Research Serv., R41716, Social Security
Administration (SSA): Budget Issues at 1 (Sept. 8, 2014) (“SSA Budget
Issues”). The agency pays benefits of over a trillion dollars each year, and
its activities “touch the lives of nearly every American family and are key
components of the nation’s economic safety net for the aged and disa-
bled.” SSA Budget Issues at 1; SSA, Fact Sheet: Social Security, https://
www.ssa.gov/news/press/factsheets/basicfact-alt.pdf (last visited July 7,
2021).
For the first four years of its existence, the social security system was
administered by a three-member, freestanding Social Security Board,
whose members were appointed by the President by and with the advice
and consent of the Senate and had no express tenure protection. See Social
Security Act, § 701, Pub. L. No. 74-271, 49 Stat. 620, 635–36 (1935).
From 1939 until 1994, the entity that administered the social security
system was housed within another agency, subject to the agency head’s
direction and control, and the agency head did not have tenure protection.
In 1939, Congress placed the Social Security Board within the Federal
Security Agency, a now-defunct agency that supervised several govern-
ment benefits programs. See Reorganization Act of 1939, Pub. L. No.
76-19, 53 Stat. 561; Reorganization Plan No. 1 of 1939, § 202, 3 C.F.R.
1288, 1290 (1943 Cum. Supp.). In 1946, acting pursuant to statutory
authority, President Truman abolished the Board and transferred its func-
tions to the Federal Security Administrator. See Reorganization Plan
No. 2 of 1946, § 4, 3 C.F.R. 192, 192 (1946 Supp.). In 1953, President
Eisenhower established within the Department of Health, Education, and
Welfare (later renamed the Department of Health and Human Services
(“HHS”)), “a Commissioner of Social Security who shall be appointed by
the President by and with the advice and consent of the Senate,” who
“shall perform such functions concerning social security and public wel-
fare as the Secretary may prescribe.” Reorganization Plan No. 1 of 1953,
§ 4, 3 C.F.R. 131, 132 (1953).
In the Social Security Independence and Program Improvements Act of
1994, Pub. L. No. 103-296, 108 Stat. 1464 (“the Act”), Congress changed
the status of the entity by then known as the Social Security Administra-
tion from a component within HHS to an “independent agency in the
executive branch of the Government.” Id. sec. 101, § 701(a) (codified at
42 U.S.C. § 901(a)). Under the Act, the SSA Commissioner is “appointed
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Constitutionality of the Commissioner of Social Security’s Tenure Protection
for a term of 6 years,” “may continue in office until the entry upon office
of . . . a successor,” and “may be removed from office only pursuant to a
finding by the President of neglect of duty or malfeasance in office.” Id.
sec. 102, § 702(a)(3) (codified at 42 U.S.C. § 902(a)(3)). The Commis-
sioner now leads the SSA as a single-member head, similar to the Direc-
tors of the CFPB and the FHFA whose removal restrictions the Court
found unconstitutional in Seila Law and Collins, respectively.
Congress enacted the current structure of the SSA, including the protec-
tion from removal conferred on the Commissioner, in response to con-
cerns about a high turnover among political appointees that affected the
agency’s performance as well as “policy errors resulting from inappropri-
ate influence from outside the agency.” H.R. Rep. No. 103-670, at 89–90
(1994) (Conf. Rep.). 1 As reflected in the conference report to the Act, the
1994 changes—the shift from sub-agency to agency status, coupled with
the Commissioner’s new term and tenure protections—were intended to
promote “management efficiency” and to ensure fidelity to the agency’s
statutory mission. Id.
When signing the Social Security Independence and Program Im-
provements Act of 1994 into law, President Clinton commended the
organizational changes as “elevating the stature of the agency” and im-
portant to “maintain[ing] the confidence of all Americans in the Social
Security program.” Statement on Signing the Social Security Independ-
ence and Program Improvements Act of 1994 (Aug. 15, 1994), 2 Pub.
Papers of Pres. William J. Clinton 1471, 1471 (1994). He nonetheless
noted that, in the opinion of the Department of Justice, the relative rarity
of a single-member, tenure-protected agency head “raises a significant
constitutional question,” and that he was “prepared to work with the
Congress on a corrective amendment that would resolve the constitutional
question so as to eliminate the risk of litigation.” Id. at 1472.
President Clinton’s signing statement was consistent with advice that
this Office had provided about the Act. We explained that the Commis-
1 Cf. H.R. Rep. No. 103-221, at 4–5 (1994) (committee report for similar bill) (“Over
the past twenty years, SSA has been plagued by a lack of stability and continuity in its
executive leadership. . . . By establishing a fixed term of office for the Commissioner, . . .
the Committee bill enhances the likelihood that SSA will attract and retain first-rate
leadership” that will “lead to the development of far sighted policies and administrative
practices.”).
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45 Op. O.L.C. __ (July 8, 2021)
sioner’s “removal restriction presents a more serious constitutional ques-
tion than restrictions on the President’s ability to remove the members of
multi-person boards that govern the more traditional independent regula-
tory agencies, and it would severely erode the President’s authority in a
vitally important area of national concern.” 1994 Dellinger Letter at 1. We
further observed that the SSA’s new structure as an agency led by a single
person with tenure protection was “extraordinary.” Id. We distinguished
an analysis we had offered on an earlier version of the legislation, which
would have provided for a three-person independent SSA board. That
structure, we thought, would have been permissible because “the Presi-
dent generally will have some input on the make-up of the governing
body” in the case of “an agency headed by a multi-member body whose
members may only be removed for cause,” whereas the single Commis-
sioner’s six-year term created “a strong possibility that a President will
never have a say in the conduct of an agency that affects the lives of every
American every day.” Memorandum for Walter Dellinger, Assistant
Attorney General, Office of Legal Counsel, from Michael Small, Office of
Legal Counsel, Re: Social Security Administration Independence Act at 4
(July 29, 1994) (attached to 1994 Dellinger Letter); see also Memoran-
dum for Harriet Rabb, General Counsel, Department of Health and Hu-
man Services, from Walter Dellinger, Assistant Attorney General, Office
of Legal Counsel, Re: Restructuring of Social Security Administration at 4
(June 2, 1994).
We did not definitively conclude that the Commissioner’s removal re-
striction that Congress eventually enacted was unconstitutional, but rec-
ommended that the provision be eliminated or revised to avoid “plac[ing]
the proper administration of our social security system at risk.” 1994
Dellinger Letter at 2.
II.
As this Office has explained, “[t]he first great constitutional debate in
the First Congress concerned the power to remove officers of the United
States”—and that debate has continued ever since. The Constitutional
Separation of Powers Between the President and Congress, 20 Op. O.L.C.
124, 166 (1996) (“Separation of Powers”). The Constitution makes no
reference to the removal of executive officers, aside from impeachment.
U.S. Const. art. II, § 4. Moreover, the Constitution expressly grants Con-
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Constitutionality of the Commissioner of Social Security’s Tenure Protection
gress authority “[t]o make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or any
Department or Officer thereof.” Id. art. I, § 8, cl. 18. The Necessary and
Proper Clause grants Congress broad authority to create the positions that
executive officers occupy and to structure those offices as Congress
believes best to achieve its goals. And Congress has wielded this authority
throughout the Nation’s history by enacting legislation—signed by the
President—that provides removal protection to an array of executive
officers. See Seila Law, 140 S. Ct. at 2224–25, 2229–33 (Kagan, J., dis-
senting); see also Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935)
(upholding removal restrictions for the Federal Trade Commission
(“FTC”)).
On the other hand, the Constitution vests the executive power and other
specific authorities in a President on whom it imposes a duty to “take
Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Alt-
hough the “executive Power” is vested in the President, “the Constitution
assumes that lesser executive officers will assist the [President] in dis-
charging the duties of his trust,” and that when they do so, those lesser
executive officers will “remain accountable to the President.” Seila Law,
140 S. Ct. at 2197 (internal quotation marks omitted). To meet his “take
Care” duty, the President must have some ability to remove executive
officers who the President believes are failing to satisfy the constitutional
command of faithful execution of the laws. See also 1 Annals of Cong.
463 (1789) (statement of James Madison on the floor of the First Con-
gress that “if any power whatsoever is in its nature Executive, it is the
power of appointing, overseeing, and controlling those who execute the
laws”). This removal authority also helps ensure that executive officials
remain responsive to the President’s supervision.
The constitutional challenge thus posed is how to do justice to both
congressional and presidential authority in the removal context. This
Office has acknowledged that tension, requiring that the President enjoy
“at will” removal power over those officers whose functions consist of
helping the President perform his or her constitutional responsibilities,
such as the Secretary of Defense, but accepting removal restrictions in
some other contexts. Separation of Powers, 20 Op. O.L.C. at 169. We
have insisted on a careful contextual assessment of particular removal
provisions, focusing on the specific powers an officer wields and the
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45 Op. O.L.C. __ (July 8, 2021)
impact that a removal restriction has on the President’s ability to perform
his or her constitutional functions. Id. at 170. In so doing, we have relied
heavily on Supreme Court precedent, in particular the Court’s rationale in
Morrison v. Olson that identified the central constitutional inquiry as
being whether a removal restriction would “impede the President’s ability
to perform his constitutional duty.” 487 U.S. 654, 691 (1988). More
recent Supreme Court decisions have extended the Court’s precedents in
ways that shift the balance in favor of presidential authority. For the
reasons given below, we think the best reading of those recent decisions
leads to the conclusion that the President has the constitutional authority
to remove the SSA Commissioner at will.
A.
Since the Office initially flagged constitutional concerns about the
Commissioner’s tenure protection in 1994, the Supreme Court has taken
a series of steps limiting statutory restrictions on the President’s ability
to remove executive officers. Beginning with Free Enterprise Fund v.
Public Company Accounting Oversight Board, 561 U.S. 477 (2010),
where the Court declared unconstitutional a removal restriction for the
first time in nearly a century, the Court has focused on the potential of
such restrictions to “subvert[] the President’s ability to ensure that the
laws are faithfully executed—as well as the public’s ability to pass
judgment on his efforts.” Id. at 498; see also Myers v. United States, 272
U.S. 52 (1926) (next-most recent decision holding unconstitutional a
removal restriction in a statute requiring the Senate’s advice and consent
prior to the President’s removal of postmasters). Even more recently, the
Court has issued two decisions addressing the circumstances under which
Congress may impose limitations on removal of single-member heads of
agencies.
Last year, in Seila Law, the Court for the first time considered a statuto-
ry tenure protection for a single-member head of an independent agency.
See 140 S. Ct. 2183. In that decision, the Court found unconstitutional the
statutory tenure protection afforded the Director of the CFPB, which
provided that “[t]he President may remove the Director for inefficiency,
neglect of duty, or malfeasance in office.” 12 U.S.C. § 5491(c)(3). Seila
Law began by describing a general rule that “the President possesses ‘the
authority to remove those who assist him in carrying out his duties.’” 140
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Constitutionality of the Commissioner of Social Security’s Tenure Protection
S. Ct. at 2198–200 (citation omitted). The Court then stated that it recog-
nized only two exceptions to such unrestricted removal power: one for
“multimember bod[ies] of experts, balanced along partisan lines” that “do
not wield substantial executive power,” and another for “inferior officers
with limited duties and no policymaking or administrative authority.” Id.
at 2199–200 (discussing Humphrey’s Ex’r, 295 U.S. 602, and Morrison,
487 U.S. 654). The Court found that the CFPB Director fell into neither
category, and was “vested with significant executive power” based on the
Director’s authority to “promulgate binding rules fleshing out 19 federal
statutes [concerning] . . . unfair and deceptive practices,” to “unilaterally
issue final decisions awarding legal and equitable relief in administrative
adjudications,” and to “seek daunting monetary penalties against private
parties on behalf of the United States in federal court.” Id. at 2200–01.
Seila Law also declined to sanction removal protection for the CFPB
Director because of a lack of historical precedent for the CFPB’s single-
Director structure. Id. at 2201. The parties had identified “‘only a handful
of isolated’ incidents in which Congress has provided good-cause tenure
to principal officers who wield power alone rather than as members of a
board or commission,” including the heads of the Office of Special Coun-
sel, the SSA, and the FHFA. Id. (citation omitted). The Court determined
that these “modern and contested” examples, which did “not involve
regulatory or enforcement authority remotely comparable to that exercised
by the CFPB,” did not provide adequate historical precedent to justify the
CFPB Director’s protection from removal as a single-member agency
head. Id. at 2202.
Finally, Seila Law held that the CFPB’s single-Director structure failed
to subject the agency to sufficient “ongoing supervision and control [by]
the elected President.” Id. at 2203. According to the Court, “[t]he CFPB’s
single-Director structure . . . vest[ed] significant governmental power in
the hands of a single individual accountable to no one,” because the
Director was “neither elected by the people nor meaningfully controlled
(through the threat of removal) by someone who is.” Id. That problem was
exacerbated by the fact that several other features of the CFPB “fore-
close[d] certain indirect methods of Presidential control.” Id. at 2204. In
particular, the CFPB Director’s five-year term meant that “some Presi-
dents may not have any opportunity to shape its leadership and thereby
influence its activities.” Id. The Court also thought that the CFPB’s re-
7
45 Op. O.L.C. __ (July 8, 2021)
ceipt of funds outside the appropriations process might allow the agency
to slip further from the President’s control. Id.Accordingly, the Court concluded that the statutory restriction on the
President’s authority to remove the Director was unconstitutional and that
the President could remove that officer at will. Id. at 2201, 2211. The
Court expressly left open the question whether removal restrictions for the
heads of similarly structured agencies, including the SSA, were unconsti-
tutional as well. Id. at 2202.
The Court’s reasoning in Seila Law was open to debate. President
Obama did not object to the CFPB Director’s tenure protection when
signing the Dodd-Frank Wall Street Reform and Consumer Protection Act
(“Dodd-Frank Act”) into law. See Press Release, Office of the Press
Secretary, The White House, Remarks by the President at Signing of
Dodd-Frank Wall Street Reform and Consumer Protection Act (July 21,
2010). And four justices in Seila Law dissented strongly, arguing that the
majority opinion was at odds with constitutional text, history, the Court’s
precedents, and “the need for sound and adaptable governance.” 140
S. Ct. at 2226 (Kagan, J., dissenting); see also id. at 2236 (“[C]aselaw
joins text and history in establishing the general permissibility of for-
cause provisions giving some independence to agencies.”). In the dis-
sent’s view, the majority’s claimed general rule of presidential removal
power “does not exist.” Id. at 2225. The dissenting justices rejected the
claim that the removal protection for the CFPB Director was novel, noting
that the “CFPB wields the same kind of power as the FTC” and its head
“receive[s] the same kind of removal protection,” such that the Director’s
tenure protection should be constitutional under Humphrey’s Executor. Id.
at 2238. The dissent criticized the majority’s single-head distinction,
insisting that examples of single-headed independent agencies were not as
rare as the majority claimed and that, if anything, multi-member commis-
sions are harder for the President to control. Id. at 2241–42. Most funda-
mentally, the dissent criticized the Court for unjustifiably restricting
Congress’s constitutional power to shape administrative bodies to meet
pressing needs and for deviating from the Court’s longstanding pattern of
leaving “most decisions about how to structure the Executive Branch to
Congress and the President, acting through legislation.” Id. at 2224,
2236–38.
After Seila Law, there remained a number of ways to potentially distin-
guish the CFPB Director from the SSA Commissioner that could have
8
Constitutionality of the Commissioner of Social Security’s Tenure Protection
been relevant to the constitutional analysis. As observed in Seila Law
itself, the SSA’s “role is largely limited to adjudicating claims for Social
Security benefits.” Id. at 2202 (majority opinion). Because adjudication is
a primary function of the SSA, the SSA Commissioner arguably is more
like the Commissioners of the Federal Trade Commission, for whom the
Court upheld tenure protection in Humphrey’s Executor, 295 U.S. 602. 2
The Court also previously emphasized the distinctiveness of adjudicatory
authority in inferring a constitutionally permissible removal protection for
the members of the War Claims Commission in Wiener v. United States,
357 U.S. 349, 356 (1958).
Last month, however, the Court issued its decision in Collins, which
concluded that “[a] straightforward application” of Seila Law meant that
the FHFA Director’s statutory protection from removal by the President
except “for cause” was unconstitutional. 141 S. Ct. at 1784. The Court
found no dispositive distinctions between the FHFA and the CFPB. Alt-
hough the Court recognized the agencies’ difference in scope, it found
that “the nature and breadth of an agency’s authority is not dispositive in
determining whether Congress may limit the President’s power to remove
its head.” Id. Furthermore, both agencies exercised authority in ways that
could have a direct or indirect “impact on millions of private individuals
and the economy at large.” Id. at 1785–86. Nor was the Court persuaded
that the FHFA took on the status of a private party, as opposed to an
executive entity, when it acted as a conservator or receiver. Id. at 1785.
Collins narrows the arguments available to meaningfully distinguish
the SSA Commissioner’s statutory removal protection from the provision
found unconstitutional in Seila Law. To be sure, Collins “d[id] not com-
ment on the constitutionality of any removal restriction that applies” to
the SSA Commissioner, see id. at 1787 n.21, and therefore cannot be said
to definitively resolve the question. It did, however, minimize the import
of the distinctions Seila Law had drawn between the CFPB and other
2 See Seila Law, 140 S. Ct. at 2199 (noting that Humphrey’s Executor “acknowledged
that between purely executive officers on the one hand, and officers that closely resem-
bled the FTC Commissioners on the other, there existed ‘a field of doubt’ that the Court
left ‘for future consideration’” (citation omitted)). But see id. (explaining that the Court in
Morrison had “[b]ack[ed] away from the reliance in Humphrey’s Executor on the con-
cepts of ‘quasi-legislative’ and ‘quasi-judicial’ power,” viewing “the ultimate question as
whether a removal restriction is of ‘such a nature that [it] impede[s] the President’s ability
to perform his constitutional duty’” (citation omitted)).
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45 Op. O.L.C. __ (July 8, 2021)
similarly structured agencies. Id. at 1784; see also id. at 1802 (Kagan, J.,
concurring) (“The SSA has a single head with for-cause removal protec-
tion; so a betting person might wager that the agency’s removal provision
is next on the chopping block.”). 3 Indeed, the principal criticism in Justice
Kagan’s concurrence in Collins was that the majority opinion had aban-
doned Seila Law’s inquiry into whether a single-director agency wielded
“significant executive power.” Id. at 1800–01; accord id. at 1805 (So-
tomayor, J., dissenting) (focusing on the FHFA’s lack of significant
executive power).
B.
In light of the Court’s reasoning in Collins and Seila Law, we have
reexamined the constitutional concerns that we previously raised about
the SSA Commissioner’s protection from removal when Congress enacted
the provision in 1994. We believe that the best reading of those decisions
compels the conclusion that the statutory restriction on removing the
Commissioner is unconstitutional. Therefore, the President may remove
the Commissioner at will. We emphasize that both of these recent deci-
sions leave open the possibility that certain agencies, including (and
perhaps especially) some that conduct adjudications, may constitutionally
be led by officials protected from at-will removal by the President. But we
think that under Collins and Seila Law, the combination of features of the
SSA—a single Commissioner whose term extends longer than the Presi-
dent’s, the immense scope of the agency’s programs, the Commissioner’s
broad power to affect beneficiaries and the public fisc, and the SSA’s
largely unparalleled structure—means that the President need not heed the
Commissioner’s statutory tenure protection in 42 U.S.C. § 902(a)(3).
First, Seila Law reasoned that a single-headed structure and lengthy
tenure raise particular constitutional concerns. Although the Court has
3 In addition, the government stated in its reply brief in Collins that, “under the gov-
ernment’s reading of Seila Law, the President must have the power to remove at will the
single heads of the Social Security Administration and Office of Special Counsel, both of
whom likewise exercise ‘significant executive power.’” Reply and Response Brief for the
Federal Parties at 26, Collins, Nos. 19-422, 19-563 (U.S. Oct. 2020). As discussed below,
this opinion does not address the validity of tenure protections conferred on the Special
Counsel, whose removal restrictions implicate different considerations, or the head of any
other agency that does not share the SSA’s specific combination of features.
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Constitutionality of the Commissioner of Social Security’s Tenure Protection
upheld removal restrictions for an agency exercising adjudicative func-
tions when the agency was headed by a body composed of multiple mem-
bers, see Humphrey’s Ex’r, 295 U.S. at 628; accord Wiener, 357 U.S. at
350, 4 the Court in Seila Law distinguished the CFPB Director in part
based on the Director’s position as the agency’s sole head. 140 S. Ct. at
2201. So, too, the SSA Commissioner has the ultimate statutory responsi-
bility for adjudication of claims under the SSA’s benefits programs. Seila
Law further observed that the CFPB Director’s term was five years and,
depending on the timing, “an unlucky President might . . . find herself
saddled with a holdover Director from a competing political party.” Id. at
2204. The Commissioner’s six-year term raises the same issue. Here, in
fact, the incumbent Commissioner was appointed in 2019 to a term that
will not expire until January 19, 2025, the day before the end of the Presi-
dent’s current term. See PN94—Andrew M. Saul—Social Security Ad-
ministration, 116th Cong. (2019), https://www.congress.gov/nomination/
116th-congress/94. Insulating the SSA Commissioner from removal
would thus impair the President’s ability to shape the policies of the SSA
across the entirety of the term for which he was elected.
Second, the vast size and importance of the SSA’s programs distinguish
it from many other agencies and adjudicatory contexts. Social Security “is
one of the federal government’s largest programs.” Barry F. Huston,
Cong. Research Serv., IF10426, Social Security Overview at 1 (updated
May 7, 2020). “Today, about 178 million people work and pay Social
Security taxes and about 64 million people receive monthly Social Securi-
ty benefits.” SSA, Support, https://www.ssa.gov/agency/pillars/support.
html (last visited July 7, 2021). Initially aimed at “ensur[ing] the financial
security of members of the workforce when they reach old age,” BNSF
Ry. Co. v. Loos, 139 S. Ct. 893, 898 (2019), over time Social Security has
also become a central mechanism for providing financial support to the
disabled and to families of deceased workers. See Barry F. Huston, Cong.
Research Serv., R42035, Social Security Primer at 1–2 (updated May 15,
2020). Under the Commissioner’s supervision, the SSA reviews over
650,000 claims filed under the Social Security Act every year—
4See also Collins, 141 S. Ct. at 1783 n.18 (noting that the Court in Wiener had rea-
soned that “the War Claims Commission was an adjudicatory body, and as such, it had a
unique need for ‘absolute freedom from Executive interference’” (quoting Wiener, 357
U.S. at 353)).
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45 Op. O.L.C. __ (July 8, 2021)
adjudication on a vast and unique scale. See SSA, Hearings and Appeals,
https://www.ssa.gov/appeals/about_us.html (last visited July 7, 2021).
The financial impact of Social Security is equally massive. In 2019, the
social security system collected $1,062 billion in taxes and paid $1,059
billion in benefits, while the social security trust funds held $2.9 trillion in
assets in 2020. See Social Security Overview at 1. It is difficult to over-
state the agency’s significant footprint on daily American life. See Col-
lins, 141 S. Ct. at 1785 (emphasizing that “FHFA actions . . . could have
an immediate impact on millions of private individuals and the economy
at large”).
Third, the Commissioner not only oversees the adjudication of claims
for social security benefits, but also administers and sets policy for the
agency’s extensive benefits programs, and can impose monetary penalties
in certain situations. 5 See Seila Law, 140 S. Ct. at 2201 (noting the im-
portance of a single Director exercising “significant executive power”);
see also Restructuring of Social Security Administration at 4 (“[A] signif-
icant amount of the [SSA’s] work is devoted to adjudicating disputed
social security claims,” but “the SSA performs other functions, such as
administering the Social Security system, that can be categorized as
executive functions.”). But see Collins, 141 S. Ct. at 1783–84 (appearing
to dispense with or diminish the importance of the “significant executive
power” inquiry). The Commissioner manages the SSA’s massive benefits
programs and oversees an agency that employs almost sixty-thousand
government workers. 6 Moreover, the Commissioner makes certifications
and determinations with respect to program-related trust funds and is one
5 Indeed, this management role likely occupies more of the Commissioner’s time than
adjudication. Although the governing regulations authorize the Commissioner to review
certain adjudicative decisions, see, e.g., 20 C.F.R. § 498.222(a), the agency’s adjudicatory
functions are largely performed by designees of the Commissioner, including Administra-
tive Law Judges and members of the Appeals Council, see, e.g., id. §§ 404.983, 416.1483.
6 See 42 U.S.C. §§ 901(b) (“It shall be the duty of the Administration to administer the
old-age, survivors, and disability insurance program.”), 902(a)(4) (“The Commissioner
shall be responsible for the exercise of all powers and the discharge of all duties of the
Administration, and shall have authority and control over all personnel and activities
thereof.”); see also id. §§ 902(a)(6) (providing the Commissioner organizational control
over the SSA), 902(a)(7) (authorizing the Commissioner to assign duties), 904(a) (de-
scribing the Commissioner’s hiring and budgetary authorities); SSA, Organizational
Structure of the Social Security Administration, https://www.ssa.gov/org (last visited
July 7, 2021).
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Constitutionality of the Commissioner of Social Security’s Tenure Protection
of the members of those funds’ board of trustees. 42 U.S.C. § 401. To be
sure, the Commissioner does not exercise enforcement authority compa-
rable in scale to the CFPB Director. But the SSA does have statutory
authority to impose money sanctions on claimants who make false or
misleading statements when applying for disability benefits. See id.
§ 1320a-8. Under that authority, the SSA has imposed significant civil
penalties against individuals. See, e.g., Valent v. Comm’r of Soc. Sec., 918
F.3d 516, 517 (6th Cir. 2019) (civil penalty of $75,000).
The Commissioner also has substantial authority to issue regulations
governing the distribution of benefits, including some discretion to issue
regulations reflecting his or her own policy preferences. 7 The Supreme
Court has described this rulemaking authority as “‘exceptionally broad.’”
Bowen v. Yuckert, 482 U.S. 137, 145 (1987) (citation omitted) (upholding
a regulation promulgated pursuant to 42 U.S.C. § 405(a), which at the
time vested authority in the Secretary of Health and Human Services, that
“require[d] disability claimants to make a threshold showing that their
‘medically determinable’ impairments are severe enough to satisfy the
regulatory standards”). And courts have frequently deferred to SSA deci-
sions that reflect the Commissioner’s judgment as to how best to under-
stand the federal benefits statutes, as well as how best to administer bene-
fits programs. See, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003)
(deferring to the SSA’s determination that the agency can find a claimant
not disabled when she remains physically and mentally able to do her
previous work, without investigating whether that work exists in signifi-
cant numbers in the national economy); Barnhart v. Walton, 535 U.S.
212, 217 (2002) (deferring to an SSA regulation stating that a claimant is
not disabled “regardless of [his] medical condition” if the claimant is
doing “substantial gainful activity,” which the agency subsequently ex-
plained meant that “within 12 months after the onset of an impairment . . .
the impairment no longer prevents substantial gainful activity” (citations
7 See 42 U.S.C. §§ 405(a) (“The Commissioner . . . shall have full power and authority
to make rules and regulations and to establish procedures . . . necessary or appropriate to
carry out [benefits program] provisions, and shall adopt reasonable and proper rules and
regulations to regulate and provide for the nature and extent of the proofs and evidence
and the method of taking and furnishing the same.”), 902(a)(5) (“The Commissioner may
prescribe such rules and regulations as the Commissioner determines necessary or appro-
priate to carry out the functions of the Administration.”).
13
45 Op. O.L.C. __ (July 8, 2021)
omitted)). 8 In short, the sheer scale of the Commissioner’s ability to affect
beneficiaries and the public fisc counsels against statutory interference
with the President’s authority to remove such a sole agency head.
Fourth, both Collins and Seila Law emphasized that the single-director
structures at issue in those cases were historical anomalies, see Collins,
141 S. Ct. at 1783–84; Seila Law, 140 S. Ct. at 2201, and the SSA’s
structure similarly appears to be without parallel among benefits-
adjudicating agencies. As explained in Part I, when the predecessor of the
SSA, the Social Security Board, was a freestanding agency during the first
four years of the social security program from 1935 to 1939, it was led by
a three-member board whose members lacked express tenure protection.
And in the 55 years before the 1994 amendments, the head of the agency
housing the social security system was always subject to at-will presiden-
tial removal.
The Railroad Retirement Board (“RRB”) is perhaps the current agency
most analogous to the SSA. The RRB administers benefits for railroad
workers, who are not part of the social security system. 45 U.S.C. § 231f.
Like the former Social Security Board, the RRB is a three-member board
of officials appointed by the President and confirmed by the Senate with
no express tenure protection. Id. § 231f (a). This Office, moreover, has
declined to infer such protection for RRB members. Removal of Holdover
Officials Serving on the Federal Housing Finance Board and the Railroad
Retirement Board, 21 Op. O.L.C. 135, 141 (1997) (distinguishing Wie-
ner). Most of the other federal benefits adjudication systems are within
Executive Departments such as the Department of Labor and the Depart-
8 See also, e.g., Schafer v. Astrue, 641 F.3d 49, 50–51, 61 (4th Cir. 2011) (deferring to
the SSA’s conclusion that “natural children must be able to inherit from the decedent
under state intestacy law or satisfy certain exceptions to that requirement in order to count
as ‘children’ under the [Social Security] Act” in part because of the SSA’s “extensive
experience in administering the Act’s survivorship benefits program, as well as the legal
and practical ability to respond more quickly to changing regulatory circumstances”);
Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 80 (2d Cir. 2009) (deferring to an
SSA policy prohibiting consideration of the combined effects of a child’s limitations in
different domains of functioning in part because “[t]he SSA has substantial expertise and
is charged with administering a complex statute”); Stroup v. Barnhart, 327 F.3d 1258,
1260–61 (11th Cir. 2003) (deferring to an SSA regulation defining “eligibility” to mean
that the agency “‘consider[s] you to first become eligible for a monthly pension in the
first month for which you met all requirements for the pension except that you were
working or had not yet applied’” (quoting 20 C.F.R. § 404.213(a)(3)).
14
Constitutionality of the Commissioner of Social Security’s Tenure Protection
ment of Veterans Affairs, whose heads are subject to at-will removal by
the President. There are other agencies that perform discrete adjudicatory
duties, such as the Small Business Administration, which adjudicates
grievances arising from various loan and grant programs, see, e.g., 13
C.F.R. § 134.228, and the Office of Personnel Management, which adju-
dicates claims for federal retirement benefits, see, e.g., 5 C.F.R. § 841.301
et seq. But none of those agencies has a single head with express tenure
protection. See, e.g., 15 U.S.C. § 633(a) (establishing the office of Admin-
istrator of the Small Business Administration); 5 U.S.C. § 1102(a) (estab-
lishing the office of Director of the Office of Personnel Management).
In light of this combination of factors and the Supreme Court’s recent
decisions in Collins and Seila Law, we conclude that the President may
remove the SSA Commissioner at will. We emphasize the limited scope
of our conclusion regarding the Commissioner. It does not imply any
similar determination with respect to the validity of tenure protections
conferred on other executive officials—for example the Special Counsel,
another single-member agency head whose removal restrictions implicate
different considerations, such as the Special Counsel’s primarily investi-
gatory function and “limited jurisdiction,” Seila Law, 140 S. Ct. at 2202.
Nor does our conclusion speak to the constitutionality of existing or
hypothetical tenure protections for any other agency heads, including
multi-member commissions, that do not share the specific combination of
features identified here. See id. at 2192, 2198–200, 2206 (determining it
unnecessary to revisit Humphrey’s Executor and distinguishing Wiener as
involving a multi-member adjudicatory body).
C.
Although under Collins and Seila Law the restriction on removal in 42
U.S.C. § 902(a)(3) is unconstitutional, and thus unenforceable, that con-
clusion does not affect the validity of the remainder of the statute, includ-
ing the default term length and succession provisions for the Commis-
sioner. “[O]ne provision of a [statute] may be invalid by reason of its not
conforming to the Constitution, while all the other provisions may be
subject to no constitutional infirmity.” Loeb v. Trs. of Columbia Twp., 179
U.S. 472, 490 (1900) (internal quotation marks omitted). What matters is
whether the statute’s provisions “are so connected, or dependent on each
other in subject matter, meaning[,] or purpose, that the good cannot re-
15
45 Op. O.L.C. __ (July 8, 2021)
main without the bad.” Id. (internal quotation marks omitted); see also
Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2353 (2020)
(“The Court has long applied severability principles in cases like this one,
where Congress added an unconstitutional amendment to a prior law.”).
We think it clear that the SSA Commissioner’s removal protection is
severable from the remainder of the SSA organic statute, just as the Court
in Seila Law determined that the removal protection provision for the
CFPB Director was severable from the remainder of the Dodd-Frank Act.
The Chief Justice’s opinion in Seila Law pointed to several factors that
made severability of the removal restriction appropriate. 9 That opinion
first emphasized that the provisions “bearing on the CFPB’s structure and
duties remain fully operative without the offending tenure restriction.”
140 S. Ct. at 2209 (opinion of Roberts, C.J.). The same is true here. If the
President disregarded the prescription that the Commissioner “may be
removed from office only pursuant to a finding by the President of neglect
of duty or malfeasance in office,” 42 U.S.C. § 902(a)(3), that would not
impair the structure or functioning of any other provision of the statute,
since none of those provisions depends upon the Commissioner’s statuto-
ry protection from removal.
Nor is there anything “in the text or history of” the statute that demon-
strates that “Congress would have preferred no [SSA] to [an SSA] super-
vised by the President.” Seila Law, 140 S. Ct. at 2209 (opinion of Roberts,
C.J.). On the contrary, for most of the SSA’s history, the entity was head-
ed by an individual or individuals who did not enjoy tenure protection.
See, e.g., Reorganization Plan No. 1 of 1939, § 202; Reorganization Plan
No. 2 of 1946, § 4; Reorganization Plan No. 1 of 1953, § 4. The limitation
on the Commissioner’s removal only for neglect of duty or malfeasance in
office is a relatively recent innovation. See Social Security Independence
and Program Improvements Act of 1994, Pub. L. No. 103-296, sec. 102,
§ 702(a)(3), 108 Stat. at 1466. It is true that Congress enacted that limita-
tion in part because of its frustration with the SSA’s performance and
judgment under its prior structure. See H.R. Rep. No. 103-670, at 89–90.
9 Only two Justices joined the Chief Justice’s severability analysis, but the four dis-
senting Justices concurred in the judgment with respect to severability, stating that “all
those who join this [dissenting] opinion[] believe[] that if the agency’s removal provision
is unconstitutional, it should be severed.” Seila Law, 140 S. Ct. at 2245 (Kagan, J.,
dissenting).
16
Constitutionality of the Commissioner of Social Security’s Tenure Protection
But we seriously doubt Congress believed the next-best solution was to
dismantle the SSA and the benefits programs it administers altogether.
See Seila Law, 140 S. Ct. at 2210 (opinion of Roberts, C.J.) (concluding
that even though “Congress preferred an independent CFPB to a depend-
ent one,” it “would [not] have preferred a dependent CFPB to no agency
at all”); Free Enter. Fund, 561 U.S. at 509 (reasoning that unconstitution-
al tenure provisions were severable because “[t]he remaining provisions
are not ‘incapable of functioning independently’ and nothing in the stat-
ute’s text or historical context makes it ‘evident’ that Congress . . . would
have preferred no Board at all to a Board whose members are removable
at will” (citation omitted)). Those programs are of critical importance to
tens of millions of United States citizens, who often depend on social
security benefits for subsistence.
Declaring inoperative other provisions of the 1994 amendments or un-
derlying statute thus would deal “appreciable damage to Congress’s
work” in the field of federal benefits and could wreak havoc on the indi-
viduals who depend on those benefits. Seila Law, 140 S. Ct. at 2210
(opinion of Roberts, C.J.). Such an approach would be inconsistent with
the Supreme Court’s direction that statutes with constitutional flaws be
treated modestly whenever possible, “limit[ing] the solution to the prob-
lem [and] severing any problematic portions while leaving the remainder
intact.” Free Enter. Fund, 561 U.S. at 508 (internal quotation marks
omitted). Regarding the restriction on removal in 42 U.S.C. § 902(a)(3) as
constitutionally unenforceable while leaving the remainder of the statute
intact respects those principles, as well as Congress’s judgments about
how the Executive Branch should administer federal benefits, to the
maximum extent possible.
III.
We therefore conclude that the President may remove the SSA Com-
missioner at will. We further conclude that disregarding the constitution-
ally unenforceable restriction on removal in 42 U.S.C. § 902(a)(3) would
not affect the validity of the remainder of the statute.
DAWN JOHNSEN
Acting Assistant Attorney General
Office of Legal Counsel
17