The Trump administration has been making a low-key but concerted attack on Social Security in the past weeks, not in public pronouncements, but in attacks on the program through the rule-making process. While the proposal intended to kick Social Security Disability claimants off of benefits has received attention, a second rule that would make the appeals process harder to navigate has flown under the radar. Administrative law judges and Democrats in Congress have been paying attention, though.

The rule would cut administrative law judges out of the loop in taking up standard cases, conducting hearings, and issuing decisions on applications for disability benefits—all responsibilities currently reserved for them. The Social Security Administration says that the change would streamline the hearing process and "provide us with appropriate flexibility, particularly when budgets may not support additional hiring or unanticipated shifts in disability application rates occur." What it will actually do, the judges and members of Congress say, it strip due process rights from people applying for benefits. It would also violate the law and Supreme Court precedent, the administrative law judges' union says. The administration is "trying to undermine the ALJs' judicial independence" they argue in their comment opposing the rule, and "effectively subject the entire administrative adjudicative process under performance appraisal control by the agency."

The end result would be that the "claimant is denied a truly independent review within the agency and is left only with an appeal to the courts for such a review." The Supreme Court, in Smith v. Berryhill, they argue, said that a claimant must have access to an appeal specifically with an administrative law judge, and that "is indeed a matter of legislative right rather than agency grace." That's what Democrats in Congress said, too, in their comment on the proposed rule, sent jointly by Sen. Ron Wyden, ranking member on the Senate Finance Committee, and Rep. Richard Neal, chairman of the House Ways and Means Committee. Reps. Jerry Nadler and Carolyn Maloney, the chairs of the Judiciary and the Oversight and Reform committees of the House, signed on as well for good measure.

"SSA's proposed rule would erode due process for Americans who are appealing a denial of Social Security or Supplemental Security Income (SSI), threatening access by eligible individuals to disability, retirement, and survivors' benefits," the members wrote in their comment letter. "Replacing independent Administrative Law Judges (ALJs) with Administrative Appeals Judges (AAJs) is contrary to congressional intent for impartial SSA hearings, and it is not supported by the rationale asserted in the proposed rule." It would contradict the congressional intent of the law regarding disability claim proceedings.

It would also almost certainly mean fewer people would receive disability benefits, a chief aim of the Trump administration.

Published with permission from Daily Kos.