One area of law that the Roberts Court has taken seriously is the structural Constitution: the Appointments Clause, the separation of powers, and the administrative state. There is a lot of work to be done in restoring the proper constitutional balance, and Chief Justice John Roberts himself has too often shied away from strong remedies for violations, but there is reason for optimism that the Court will not just sweep these issues under the rug over the next few years. The unanimous result yesterday in Carr v. Saul, with a majority opinion written by Justice Sonia Sotomayor, is another small but positive step in that direction.
Carr involved an Appointments Clause challenge to Administrative Law Judges (ALJs) who conduct hearings for the Social Security Administration on whether individuals were entitled to disability benefits. The Court’s 2018 decision in Lucia v. SEC ruled that ALJs of the Securities and Exchange Commission were “Officers of the United States” who could constitutionally only be appointed by the president, the courts, or the head of a department. The SSA’s ALJs were similarly appointed, so they were potentially subject to the same challenge. But Social Security disability hearings are typically not high-powered court proceedings; before Lucia, many claimants had not thought to raise a constitutional challenge under the Appointments Clause. Thus, a whole lot of people had their benefits decisions made by ALJs who were unconstitutionally appointed. Could they still object after the fact? The Constitution’s text and history say nothing about the question, so the Justices had to rely on judge-made practical rules about when objections could be preserved in the appellate process.
Expanding on a plurality decision from 2000, Sims v. Apfel, which involved requirements for raising issues before the SSA’s Appeals Council, the Court unanimously agreed that Appointments Clause challenges can be raised later than the ALJ hearing, with only Justice Stephen Breyer expressing some modest hesitancy about the outcome. As Justice Sotomayor noted, quoting Sims, SSA hearings are “inquisitorial rather than adversarial.” Justice Thomas, joined by Justices Gorsuch and Barrett, agreed — “Hearings are so informal that lawyers, briefs, and even attendance are often optional” — and would have ended the decision there. The rest of the Court, however, took an even broader view that did not depend on the particular nature of the SSA process: It would be futile to require raising constitutional challenges before ALJs, both because they are ill-equipped to decide constitutional questions, and because they had no power to order a remedy if they agreed that their own appointments were invalid:
This Court has often observed that agency adjudications are generally ill suited to address structural constitutional challenges, which usually fall outside the adjudicators’ areas of technical expertise. . . . It makes little sense to require litigants to present claims to adjudicators who are powerless to grant the relief requested. . . . Petitioners assert purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief. . . . The SSA’s administrative review scheme at no point afforded petitioners access to the Commissioner, the one person who could remedy their Appointments Clause challenges. Nor were the ALJs capable of remedying any defects in their own appointments. After all, there were no Commissioner-appointed ALJs to whom objecting claimants’ cases could be transferred, and the ALJs could not very well have reappointed themselves.