by Mark J. Warshawsky
With the change in presidential administrations, some are demanding that President Joe Biden fire the current commissioner, Andrew Saul, of the Social Security Administration (SSA), appointed by President Donald Trump. Under current law, Saul may stay in office through the end of his term (another four years), although a recent Supreme Court decision does put the law around independent agencies into constitutional question. Legal and political issues aside, what is, as a matter of good public policy, the correct governance and political structure for this massive, critical federal agency, with considerable decision-making authority and policy responsibility?
The idea behind independent agencies, like SSA, is that for stability of operations and to ensure public trust, distance is needed from political control in order to protect them from the vagaries of personalities and the shifting policy and political priorities of administrations. In particular, large sensitive computer systems, complex business processes, a nationwide network of field and hearings offices, and detailed rules and regulations demand considerable expertise and skilled management, often including long planning horizons.
The problem with this model of independence is that can produce too large a degree of autonomy and self-perpetuation and a lack of full responsiveness to the executive responsibility of the president. SSA has been independent since 1995, and for long stretches it has been largely run by long-serving career civil servants who interact with, and are supervised by, other career civil servants at the Office of Management and Budget. There are many policy issues that are decided by the commissioner of SSA, many priorities set and resources allocated, laws and regulations interpreted, partnerships with external and advocacy groups established, and regulatory efforts started, that he or she can implement independently of an administration accountable to voters.
For a recent example of this independence, the publication of a controversial regulation supported by the Trump administration did not proceed at the end of the term. This regulation contained a sensible reform pertaining to continuing disability reviews — designed to encourage disabled beneficiaries who are able to return to work to do so while their skills and job connections are still viable. Similarly, a nearly 10-year-long and roughly $300 million effort to modernize the vocational rules governing the eligibility for disability benefits to reflect the best evidence on the requirements and conditions of the current workplace was not published, despite advance notice, at the turn of administrations.
So there is an open question of what is the right balance for governance, and no answer will be perfect. In the past, some proposed a bipartisan or nonpartisan board structure for SSA, like the Federal Reserve or the SEC, but what works for those largely policy and legal agencies will not work for a large operational agency with the need for strong unitary leadership. Or there is the IRS model, which also has a commissioner with a term independent of the president. The IRS, however, is clearly part of the Treasury Department, stocked with political leadership, appointed by the president or the Treasury Secretary, with whom the IRS’ many regulations are designed and written. But with what Cabinet agency could SSA be paired that it wouldn’t overwhelm? Or SSA could go more fully political, with a commissioner and deputy commissioner under authority of the president and a full complement of appointed political officials. This too is unsatisfactory because, for the most part, SSA needs structural stability for efficient and impartial administration and design of its programs.
In my view, the best improvements are relatively small changes. SSA should be made a Cabinet-level agency, the commissioner given a term and authority tied explicitly to the president, while the deputy commissioner, exclusively responsible for operations and systems, would have a longer, independent term, to also tide the agency over when there are delays in confirmations. Also a few senior positions at SSA, like the policy chief, general counsel and head of congressional relations, should be clearly tied with the presidential administration, to be confirmed by the Senate.
Andrew Saul should be left to fill out his term, to bring to fruition his plans to enhance service to the public and to bring needed modern regulations to completion. The president and Congress should take the resulting time to design and propose legislative changes to the political and governance structure of SSA. Democracy is a work in progress, including for SSA. We can improve it.
Mark J. Warshawsky was deputy commissioner of Retirement and Disability Policy at SSA until Jan. 20. He was also a member of the Social Security Advisory Board and has worked, in both career and political capacities, at the Federal Reserve, IRS and Treasury.
