Sunday, February 24, 2013

Social Security Needs A Leader

 When historians write about this period in American history, a single word will sum it up: obstructionism.

Delays in enacting the Affordable Care Act, drafting tax reform legislation, fixing the U.S. Postal Service and confirming judges and agency heads all can be attributed to the refusal of the two political parties to cooperate.

Congress bears most of the blame. Senate Republicans have used the threat of a filibuster to halt programs espoused by the White House while House Speaker John Boehner has said the mission of that body should be to repeal rather than enact new laws.

But the Obama administration is not without blame. It has dragged its feet when it comes to filling certain department posts.

The Congressional Research Service found that 90 of the 346 federal department positions that require the advice and consent of the U.S. Senate were unfilled as of mid-May. That's more than one in four.

Part of that is attributable to partisan opposition. But researchers discovered that President Obama had not even nominated individuals for several dozen unfilled posts.

One of those empty posts is that of commissioner of the Social Security Administration. Michael J. Astrue's six-year term as commissioner expired on Jan. 19. To date, the Obama administration has not nominated a successor.

Carolyn W. Colvin, a former Maryland state official, has served as acting commissioner since Astrue stepped down and has earned praise for her work.

But lawmakers — as well as Social Security personnel — are concerned.

While payments to recipients have not been affected, SSA employees have endured rolling furloughs due to the federal sequester, and the agency is preparing for further cuts when the new fiscal year begins Oct. 1.

At the same time, the Obama administration has proposed a new way to gauge inflation — the chained Consumer Price Index — that would lead to reduced increases in Social Security payments over time.

These issues must be dealt with and members of Congress agree that the Social Security Administration needs a leader to help guide the agency through what appear to be rough seas ahead.

Although President Ronald Reagan did not name a successor for three years — he allowed Martha A. McSteen to serve as acting commissioner during that time — she did not face the kinds of issues or the bald partisanship that now permeates Washington.

And even though Democrats know that whoever Obama nominates will likely receive a hostile reception from Senate Republicans, they believe it is important to begin the process so a new commissioner will be in place to guide the agency as changes take place.

Acting commissioners, even those who are well-suited for the job, are limited as to what they can achieve.

Social Security needs a commissioner who can lead, not merely guide, the agency through the next six years.
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.  Prior to this designation, she served as the Deputy Commissioner, having been confirmed by the United States Senate on December 22, 2010 as President Obama’s nominee.  In addition to her role as the Acting Commissioner of Social Security, Ms. Colvin serves as a Trustee to the Social Security Board of Trustees.

Throughout her career, Ms. Colvin has managed programs that help people with their healthcare and financial needs.  She previously held key executive positions at Social Security Headquarters: Deputy Commissioner for Policy and External Affairs (1994–1996), Deputy Commissioner for Programs and Policy (1996–1998), and Deputy Commissioner for Operations (1998–2001).

Prior to returning to SSA, Ms. Colvin was the Director of Human Services for the District of Columbia (2001-2003); the Director of the Montgomery County Department of Health and Human Services (2003-2007); the Chief Executive Officer of AMERIGROUP Community Care of the District of Columbia (2007–2008); and, the Special Assistant to the Secretary of Maryland’s Department of Transportation (2009-2011).  In addition, Ms. Colvin served as the Secretary of Maryland’s Department of Human Resources (1989-1994).

Ms. Colvin has received numerous awards and recognition for her managerial expertise and creativity, including Maryland’s Top 100 Women Award from the Daily Record (2005) and the Women of Achievement Award from Suburban Maryland Business and Professional Women (2005).  She has served on a variety of boards and commissions, including the National Committee to Preserve Social Security and Medicare.

Ms. Colvin earned her graduate and undergraduate degrees in business administration from Morgan State University.  Additionally, she completed the Senior Executives in State and Local Government Program at Harvard University, the Maryland Leadership Program, and the Greater Baltimore Leadership Program. Ms. Colvin is from Maryland and currently resides in Anne Arundel County.  She has one son and six grandchildren.
A top lawmaker January 16 demanded a top-to-bottom review of the Social Security Administration’s management structure, following a series of disability scandals that have rocked the agency and led to widespread government scrutiny.
Rep. Sam Johnson (R., Texas), who chairs the House subcommittee that oversees Social Security, directed the Social Security Administration’s inspector general to launch the review.
The demand comes one week after the Manhattan District Attorney’s office brought a case alleging more than 100 people – including former firemen and police officers – were cheating the Social Security Disability Insurance program by improperly collecting benefits when they shouldn’t have.

In August, the U.S. Attorney in Puerto Rico brought another large case alleging widescale disability fraud — one of the largest sweeps since the program was created in the 1950s and the first major case since the program’s rapid expansion during the financial crisis.
And the Justice Department is also looking into whether there was an improper relationship between a former Social Security judge (Daugherty) in West Virginia and a disability lawyer in Kentucky.

The Social Security Administration primarily authorizes two kinds of benefits, one for older Americans and another for people who are no longer able to work because of health problems.
The disability program pays close to $140 billion in benefits to roughly 11 million people, making it one of the government’s largest – but least known – entitlement programs.
A number of Democrats have joined Republicans in demanding more answers from top Social Security Administration officials, as the recent scandals come at a time when the SSDI program is quickly exhausting its reserves. Its trust fund is projected to run out of money in 2016.
Mr. Johnson called for the review during a hearing at which SSA acting commissioner Carolyn Colvin and SSA inspector general Patrick O’Carroll testified. Though Mr. O’Carroll’s division is responsible for overseeing and even investigating the agency’s operations, the IG has stopped short of criticizing any of the agency’s actions with regard to the cases in New York, Puerto Rico, and West Virginia. In fact, in recent months, senior SSA officials have told Congress that disability fraud is very rare, and the IG’s office hasn’t refuted that view.
A top-to-bottom review, as demanded by Mr. Johnson, could create a more adversarial relationship between the IG and top SSA brass than has existed in recent years.
As the disability program has grown, it has faced a number of strains. Millions of Americans applied for benefits during the economic downturn, straining the agency’s resources and forcing many judges to ramp up their workload for processing appeals. This has created a growing tension between a number of judges and senior SSA management, leading to at least one lawsuit. Meanwhile, the agency has taken steps to tighten its control over the administrative law judges.
Ms. Colvin is running the agency until the White House nominates a commissioner, and the White House has not signaled when it might move on the vacancy.

Wednesday, February 20, 2013

Has The Supreme Court Become Irrelevant?

Has the Supreme Court become irrelevant? Is it still a reliable check or balance on the other two branches of Government? Have the justices been bought by large multinational corporations interested only in making bigger profits? Under the guise of judicial review, is the Court playing politics or just simply legislating?
Judicial Review was intended to be a way of checking and balancing. Fragmentation of the various departments of government was designed into the system by the Founding Fathers. However, if one-third of of the Federal Government is asleep at the switch or has been financially compromised then the American people become the sheep for corporate wolves.
The power of the Supreme Court is obvious, but the Court has become fractured and splintered. Frequent dissents and occasional concurrences have become the new norm. Our Supreme Court today looks more and more like nine little law offices, each with a slight dependance on the others.
Did Chief Justice Roberts sellout the country and future generations of Americans when he casted the  swing vote in a 5-to-4 split decision to rule that The Affordable Care Act (Obamacare) is constitutional?
 The Supreme Court reviews about 10,000 petitions annually in regular conferences. About 100 are selected for further judicial consideration. In this filtering process, the votes of four justices are needed to advance a case.

The Justices do not write their own opinions, nor do they select the cases that apply for review. the Justices rely upon their clerks. These are recent law school graduates from a select few ivy league law schools. Clerks typically serve a year and then move on to more lucrative pastures. Clerks also do legal research and many times write the first draft of a Justice's decision in a case under consideration. If a petition is not selected for review it may have a lot to do with the politics, prejudices, gender of the clerks who reviewed the petition.

The U.S. Supreme Court refused to hear the appeal of Coast Guard Cadet Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case. 
That was a shame because the military justice court-martial and the appeal system are not race neutral. A seemingly race neutral system operated to deny Cadet smith the equal protection of the law. Institutional racism and racial profiling operated in a culture that evolved under the system of slavery and reduced Webster Smith to a stereotype and disproportionately predetermined that he would be convicted and would not prevail on appeal.

Most Supreme Court watchers had expected the Supreme Court to hear the case or at the very least to give an explanation of why not.

This case implicated a deep federal circuit conflict regarding the standard of review that applies when a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause. The Court of Appeals for the  Armed Forces (CAAF) held that the standard of review is abuse of discretion rather than de novo. Applying the former standard, the court rejected Webster Smith’s Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided Over What Standard Of Review Applies To Confrontation Clause Claims Like Webster Smith’s. The CAAF employed abuse-of-discretion review in resolving Smith’s Sixth Amendment challenge to the military judge’s restriction on the defense’s cross-examination of SR. That approach conflicts with the holdings of five circuits, which consider comparable

Confrontation Clause claims de novo, reserving abuse-of-discretion review for non-constitutional challenges. For example, the Seventh Circuit has stated that “[o]rdinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion.
However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, ... the standard of review becomes de novo.

The Question Presented Was Recurring And Important, And The Smith Case Was A Good Vehicle For Deciding It.

The circuit conflict at issue warranted resolution by the Supreme Court. The constitutionality of restrictions on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established; there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

The Webster Smith case presented a good vehicle to resolve the circuit conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent with the Sixth Amendment, Webster Smith would have prevailed.

Justice truly was not served in this case. American justice has been given a black eye. All American citizens cannot expect the equal protections of the law guaranteed by the United States Constitution. Even those who put on the uniforms of the Armed Forces of the United States of America and swear to defend and to protect the Constitution cannot rely upon its legal guarantees. The Case of Webster Smith is but one grain of sand upon the beaches of American justice. 

 The Supreme Court will take up California's ban on homosexual marriage. The justices will review a 9th Circuit Appeals Court ruling that struck down California's homosexual marriage ban. The issue before the justices concerns California's Proposition 8, the state constitutional ban on homosexual marriage that voters adopted in 2008 after the state Supreme Court ruled that homosexual Californians could marry.
 The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.

Citing the principle of equality that drove the nation's founding, President Barack Obama spoke out Friday, March 1, 2013 against California's ban on gay marriage and said the Supreme Court should strike it down.
A day after his administration filed a friend-of-the-court brief unequivocally calling on the justices to strike down California's Proposition 8 ballot measure, Obama said he felt there was no way for his administration to avoid the case.
"I felt it was important for us to articulate what I believe and what this administration stands for," the president said.
 "I think this is a profoundly positive thing," Obama said in a White House news conference.
 This marks the first time a U.S. president has urged the high court to expand the right of homosexuals and lesbians to wed.
Obama said the brief didn't explicitly argue that gay marriage should be made legal in every state because the case before the court deals specifically with California.
"That's an argument that I make, personally," Obama said. "The court may decide that if it doesn't apply in this case, it probably can't apply in any case. There no good reason for it."
  The federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.
The Obama administration abandoned its defense of the act in 2011, but the measure will continue to be federal law unless it is struck down or repealed. (So much for an oath to defend and protect and to uphold the Constitution of The United States.)