By Mark J. Warshawsky

In the continuing saga of the Commissioner of the Social
Security Administration (SSA), there was a surprising development early last
month. The General Accountability Office (GAO) issued a legal opinion that the
current Acting Commissioner, Kilolo Kijakazi, could continue functioning in her
acting position indefinitely, and there would be no need for the Biden
Administration to nominate anyone, despite the apparent requirement of the
Vacancy Act that she cannot serve in the position for more than 210 days unless
an official nomination is made. This strange result may be legally correct in a
narrow sense, but it misses the relevant context and the bigger political,
policy, and governance issues at stake.

To recap the run-up here, Andrew Saul, the Senate-confirmed
Commissioner, with nearly four years left in his term of office, was asked by
President Biden in early July 2021 to resign. When he refused to do so, he was
fired. No cause was given except for remarks made to the Washington Post by an
unnamed Administration official about bad union relations and policy
disagreements with advocates. In particular, no cause rising to the
requirements of the Social Security Act for firing — gross negligence — was given.
Although both agency policy and tradition would then have had the career civil
servant currently in charge of agency operations appointed acting commissioner,
the President instead chose the political Deputy Commissioner of Retirement and
Disability Policy, Ms. Kijakazi, to take the role, someone with no experience
running a large organization. Most people thought this was a temporary step, given
the Vacancy Act, and that the President would nominate someone, despite the
political and practical difficulties of doing so, by February 4, 2022, for the
position. Indeed, Congressional Republicans in August 2021 wrote the GAO, the
agency in charge of enforcing the act, a letter with many questions about the
requirements of the act in this particular context. Instead, on February 1,
2022, the GAO said that the Acting Commissioner could continue indefinitely
because the President had appointed her under the rules of succession of the
Social Security Act, and not the Vacancy Act, which indeed allows any “officer”
selected by the President to fill that role, and that the first act trumps the
second.

This result is ironic because the Social Security Act itself
wants a presidentially nominated and Senate-confirmed Commissioner serving a
six-year term. The broader context gives even further ironies. Before firing
Saul, the Biden administration issued a legal opinion that the governance
provisions of the Social Security Act were unconstitutional, an inference based
on recent Supreme Court decisions. So how can the administration use that act
to argue that it beats out the requirements of the Vacancy Act? The GAO issued
its legal opinion without considering whether there was actually a vacant
position, that is, whether Andrew Saul, who protested his firing, was not, in
legal fact, still the Commissioner. Of course, this irresponsible behavior just
adds to the bad political blood with Republicans in Congress, making
cooperation on important Social Security issues impossible. It also undermines
Congress’ legitimate oversight role for a major government agency in charge of
over $1 trillion in payments to nearly 70 million American retirees, disabled
people, and survivors. Of most significance, it weakens the confidence of the
public and agency staff in the legitimacy of the administration of critical government
functions, which the Constitution envisions as the responsibility of the
President in faithful accordance with the laws and budgets passed by Congress.

Unfortunately, this sorry mess will not be resolved anytime soon. If Republicans retake control of Congress next year, there are sure to be contentious oversight hearings of SSA. But the Biden administration will likely stick with Ms. Kijakazi, instead of proposing a bipartisan reform of agency governance and then a nomination in accordance with a new law. At best, the situation awaits the next administration to handle it better.

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