What Should We Do About Administrative Law Judge Disability Decisionmaking?

Abstract

The Social Security Advisory Board, the Congressional Budget Office, and independent researchers at MIT and the University of Maryland have concluded that the Social Security disability programs have become excessively generous and fiscally unsustainable. The percentage of the population that has been determined to be disabled has doubled, the cost of the programs has increased over four-fold, and the programs are predicted to have exhausted their funding sources by 2018. All of the studies attribute the looming crisis in this area in large measure to Social Security Administration (SSA) Administrative Law Judges (ALJs). In this article, Professor Pierce argues that SSA ALJs now play roles in the bureaucracy that are not constitutionally permissible. SSA ALJs are “officers of the United States” who are accountable to no one and who are insulated from presidential control by three layers of for cause protections. Pierce urges Congress to eliminate the ALJ component of the disability decision making process and to authorize SSA to implement an aggressive review program to determine which of the millions of people who have been the subject of favorable ALJ decisions are actually disabled.