The official who has been acting Social Security commissioner since the second day of the Trump administration is now serving in violation of the Federal Vacancies Reform Act, the Government Accountability Office told Congress on Tuesday.
The letter from the GAO counsel came on the eve of a Wednesday hearing of a House Ways and Means subcommittee in which Chairman Rep. Sam Johnson, R-Texas, implored President Trump to produce a nominee for the post. “Five years is too long” to rely on acting commissioners, Johnson said at a hearing of the Social Security subcommittee. “[Social Security] is too important to continue to leave things on autopilot. Mr. President, we need someone nominated, and we need it now.”
Members of both parties decried the stalled agenda at the agency exacerbated by the temporary leadership of Nancy Berryhill. The hearing highlighted both the complex issues surrounding the Vacancies Act and the two parties’ varying approaches to modernizing the Social Security Administration and providing quality service to the rising demographic wave of elderly and disabled citizens.
The GAO letter by General Counsel Thomas Armstrong giving notice of the violation was sent upon request to Ways and Means Chairman Rep. Kevin Brady, R-Texas, and to other Senate chairmen. It said the law’s 210-day maximum for acting agency heads had expired on Nov. 17, 2017. Berryhill had been named acting SSA chief by President Obama on Dec. 23, 2016, and the law’s time clock for her acting status began just after Inauguration Day. The White House, under the law, then had 90 days to nominate a commissioner before the final 210-day countdown began.
As witnesses noted at the Wednesday hearing, the Trump White House is behind prior administrations in filling vacancies. (The Trump White House did not respond to requests for a comment on when a nomination might be made.)
Since the agency was made independent in 1995, the commissioner has been appointed for a six-year term. Currently, the SSA lacks a commissioner, deputy commissioner and inspector general, the GAO noted. President Obama’s nominee to lead SSA, Carolyn Colvin, never received a full Senate vote, but served in an acting capacity from 2013 until the end of 2016.
Berryhill, previously the deputy commissioner for operations at the $12 billion agency of 64,000 employees, has worked there for 40 years. On Wednesday, her acting press spokesman Mark Hinkle said in email to Government Executive, “Out of an abundance of caution, the agency had already taken steps in November 2017 to ensure that agency operations continue uninterrupted. Moving forward, Nancy Berryhill will continue to lead the agency from her position of record, deputy commissioner of operations. What truly matters are the people the agency serves every day. Beyond the change in title, there will be no impact in the agency’s service to the American public and normal operations will continue.”
The rights of presidents and acting agency heads is a gray area of the law, as noted at the hearing by Valerie Brannon, a legislative attorney with the Congressional Research Service. The 1998 Vacancies Reform Act and Section 702 of the Social Security Act are not always consistent, she said, and “it is hard to reach any definite conclusions.”
But if the current acting commissioner is in violation, the next step is to “determine which if any actions taken after Nov. 17 were non-delegable,” said Elizabeth Curda, GAO’s director of education, workforce, and income security. “Any in violation of the act could have no force and effect, and would not be ratified.”
The GAO auditor testified about SSA’s broader challenges: “waves of retiring employees,” an increased demand for virtual access to the claims process; an overreliance on legacy information technology systems; and the backlog in claims appeals that delays responses for an average of 605 days.
“SSA's workloads are increasing due to 80 million baby boomers entering their disability-prone and retirement years, and institutional knowledge and leadership at SSA will be depleted due to an expected 21,000 employees retiring by the end of fiscal year 2022,” Curda added.
The SSA’s major problems won’t be solved simply by having a nominee, said Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare. Arguing for a funding hike of $560 million, he said the agency in recent years has been cut by 11 percent, forcing the closing of field offices, staff reductions and more overtime. This is “a steady decline at the exact time that a million more people a year” are becoming eligible for benefits, he said.
Richtman said he had called SSA’s 1-800 number at the start of the hearing and was still awaiting a human response. He estimated that two people would “die waiting for their disability hearing” during Wednesday’s testimony.
Social Security’s long-term problems cannot be tackled by an acting commissioner, said Max Stier, president and CEO of the nonprofit Partnership for Public Service. He likened the job title of acting to that of a “substitute teacher, who may be a terrific educator but gets no respect.” The impact of multiple vacancies atop the SSA “cascade down the agency, and it’s hard to recruit people when you don’t know who the boss is going to be,” he said. IT modernization in particular, Stier added, requires multiple-year funding and a capital fund. “You have to have a long-term leader not only to see the project through but to prioritize it,” he said.
The even broader problem of Social Security’s impact on the budget and national debt was approached differently by partisans on the subcommittee. Rep. Joe Crowley, D-N.Y., pointed to a dear colleague letter that he and panel colleague Rep. John Larson, D-Conn., had created in January with more than 100 signatures calling for a major funding increase for the agency.
But Rep. David Schweikert, R-Ariz., warned that without entitlement reforms, Social Security’s contribution to the nation’s $19 trillion debt will only increase. “Every 10 years it adds the equivalent of two Departments of Defense,” he said. “The crisis is among the greatest systemic threats to this nation.”
Having no Trump-appointed nominee to run SSA is “unacceptable,” said Rep. Bill Pascrell Jr., D-N.J. “It’s not a party issue.” But the agency’s problems “increase the lack of credibility in government, which seems to me to be the objective of some who get elected to this body.”