Circuit Court Rules Against Obama Amnesty Action

THE IMPERIAL PRESIDENCY

Obama amnesty takes another hit in court

Judges affirm injunction against executive order-driven program

President Obama announces his executive action on immigration Nov. 20, 2014

A panel of three judges on the 5th U.S. Circuit Court of Appeals affirmed a lower court’s order halting President Obama’s executive action delaying deportation for up to 5 million illegal aliens.
The 5th Circuit denied a motion to stay the injunction and narrow its scope because, determining the government is unlikely to succeed on the merits of its appeal.
The opinion said the government’s action “makes aliens who were not otherwise qualified for federal public benefits eligible for ‘social security retirement benefits, security disability benefits, [and] health insurance under Part A of the Medicare program.’”
“Further, ‘each person who applies for deferred action pursuant to the [DAPA] criteria … shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.’”
Such procedures would allow illegal aliens to “‘obtain a Social Security Number,’ ‘accrue quarters of covered employment,’ and ‘correct wage records to add prior covered employment,’” the opinion said.
It warned that should the program ultimately struck down, the illegal aliens who participated would have benefited improperly.
The injunction, the judges said, preserves the status quo.
“Under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant class-wide lawful presence and eligibility for accompanying benefits as incentives for low-priority aliens to self-identify in advance,” the court said.
The ruling Tuesday, 26 May, upheld the injunction issued by U.S. District Judge Andrew Hanen.
His preliminary injunction in February said: “The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, secretary of the Department of Homeland Security; R. Gil Kerlikowske, commissioner of United States customs and Border Protection; Ronald D. Vitiello, deputy chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, acting director of United States Immigration and Customs Enforcement; and Leon Rodriguez, director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents.”
Hanen later refused a government request to lift his order halting Obama’s DAPA program.
The appeals court ruling marks a huge setback for Obama’s strategy of giving millions of Democrat-leaning illegals a pathway to legal residency, Social Security numbers and other benefits, including critics say, voting rights.
David Limbaugh’s book chillingly documents the destructive “transformation” of the United States — get “The Great Destroyer: Barack Obama’s War on the Republic”
The case was brought by 26 states, led by Texas.
The judge released documentation of what he described as the government’s misleading statements, the Los Angeles Times reported.
Hanen’s ruling followed tense exchanges in court between government lawyers and the judge. Hanen had expressed frustration with the government for failing to inform him that officials had given deferred action to 108,000 applicants shortly after Obama announced his plan in November.
“The court expects all parties, including the government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths,” Hanen wrote.
Attorneys for the 26 states are arguing Obama’s executive action causes “irreparable harm” to their local interests.
WND reported Hanen ordered, at the time, the government to explain why federal officials had approved tens of thousands of three-year exemptions between Nov. 24, 2014, and Hanen’s injunction.
Hanen’s order, Feb. 16, did not block a 2012 plan that offers amnesty to those who were brought to the U.S. illegally as children.
But that program doesn’t provide for three-year exemptions, only two-year exemptions. The new exemptions are part of the administration’s November orders, which are the subject of the current case.
The Texas case was joined by Arizona Sheriff Joe Arpaio, who has a similar case before a federal appeals court in Washington, D.C..
Hanen’s order faulted the Obama amnesty plan because officials failed to comply with the Administrative Procedures Act.
Meanwhile, Obama, according to the Washington Times, told a Miami crowd he would move ahead with his executive action on immigration and vowed his administration would become even more aggressive in the weeks and months to come.
A filing from attorney Larry Klayman of Freedom Watch noted Obama said: “This is just one federal judge. We have appealed it very aggressively. We’re going to be as aggressive as we can.”
Wrote Klayman: “The Obama administration is continuing to signal not only its disagreement with the court’s order, which is its right, but beyond that its non-compliance with the court’s order.”
The Texas lawsuit was filed when the states suddenly faced massive new demands for public services such as schooling and health care from foreigners who previously had been subject to deportation.
Hanen granted a preliminary injunction that prevents the government from enforcing the Obama administration’s immigration orders. The ruling also confirmed WND’s exclusive report that, contrary to popular perception, the order to delay deportation was not an executive order by the president. Instead, it was a memorandum issued by Department of Homeland Security Secretary Jeh Johnson at Obama’s direction.
Klayman even noted that according to a Weekly Standard report, Obama was threatening “consequences” for federal employees who followed the judge’s order instead of the amnesty memos from Johnson.
That report quoted Obama saying: “Until we pass a law through Congress, the executive actions we’ve taken are not going to be permanent; they are temporary. There are going to be some jurisdictions and there may be individual ICE official or Border Control agent not paying attention to our new directives. But they’re going to be answerable to the head of Homeland Security because he’s been very clear about what our priorities will be.”
He continued, “If somebody’s working for ICE … and they don’t follow the policy, there’s going to be consequences to it.”
Sen. Jeff Sessions, R-Ala., at the time described the administration’s action as “another program that has not been authorized by law.”
“There’s been no sense at all by President Obama, the Department of Home Security [Secretary] Jeh Johnson, the Democratic members of this Congress, no concern about the employment prospects of lawful immigrants, green card holders and native-born Americans,” Sessions told the Times. “The first thing we should do is be focusing on getting jobs for Americans that are unemployed. Are we going to keep Americans on welfare and benefits while we bring in more and more foreigners to take jobs when we’ve got Americans ready and willing to take those jobs?”
Sen Ted Cruz, R-Texas, also raised the issue of compliance with the court order.
“Violating an unambiguous federal court order by defying its instructions to cease and desist a particular activity would represent a significant breach of your authority, and would be an escalation in abuse of our separation of powers,” Cruz wrote to administration officials. “For a president and his cabinet to telegraph intent to violate a federal court order requires additional scrutiny from Congress.”
But administration officials were unabashed in their intent.
The Washington Times said Cecilia Munoz, White House domestic policy director, addressed the issue: “It’s important to put [Hanen's order] in context, because the broader executive actions are moving forward. The administration continues to implement the portions of the actions that the president and the Department of Homeland Security took, which were not affected by the court’s ruling.”
Even Obama himself said, however, he couldn’t grant amnesty alone.
House Speaker John Boehner has listed 22 times when Obama has made such statements.
For example, in October 2010, Obama said: “I am president, I am not king. I can’t do these things just by myself. … I’ve got to have some partners to do it. … If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. … I can’t just make the laws up by myself.”
WND also reported when yet another a federal judge in Pennsylvania declared the amnesty unconstitutional.
“President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause and, therefore, is unconstitutional,” said U.S. District Judge Arthur J. Schwab.
The judge noted Obama “contended that although legislation is the most appropriate course of action to solve the immigration debate, his executive action was necessary because of Congress’ failure to pass legislation, acceptable to him, in this regard.”
“This proposition is arbitrary and does not negate the requirement that the November 20, 2014, executive action be lawfully within the president’s executive authority,” the judge wrote. “It is not.”

(By Bob Unruh, WND) He has spent nearly three decades with the Associated Press (AP), as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

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Cadet Webster Smith's Former Attorney, Ronald Machen's Final Act Was A Swawn Song

                                       

The Obama Administration’s latest gift to Lois Lerner, the former IRS tax-exempt chief, came recently when U.S. Attorney for the District of Columbia Ronald Machen informed the House of Representatives that he would not file charges on its formal contempt citation against Ms. Lerner. This absolution, which shields Ms. Lerner from a grand jury probe, came on Ronald Machen’s final day on the job. Then he pulled a quick disappearing act.

                                                            (Ronald Machen)
To review the Facts:
Ronald Machen is no stranger to high profile cases, and he has taken his share to the U.S. Supreme Court.

He represented former Coast Guard Academy cadet, Webster Smith in his efforts to overturn his 2006 court-martial conviction.
(https://www.amazon.com/author/cgachall.blogspot.com)


    (Lois Lerner)
 If Americans know anything about the IRS it’s that it accepts no excuses, and so they trudged wearily on Wednesday, April 15th, to pay their taxes. That’s in notable contrast to the free passes that keep flowing to the tax agency’s most famous former employee, Lois Lerner.
Ms. Lerner was summoned to the House on May 22, 2013, to answer questions about her role in the IRS’s politically biased review of Tea Party nonprofit group applications for tax-exempt status.
She began her testimony with a statement recounting her career, reprising the scandal and proclaiming her innocence. She ended by saying: “I have not done anything wrong. I have not broken any laws, I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.” Only after she offered this long defense did she claim her right not to incriminate herself by citing the Fifth Amendment, refusing to answer questions.
House lawyers determined that, in making that statement, Ms. Lerner had forfeited her right to remain silent. The House on May 7, 2014 held her in contempt of Congress and sent the citation to Ronald Machen.
The law clearly explains that the U.S. Attorney’s only “duty” “shall be” to “bring the matter before the grand jury for its action.” Mr. Machen instead sat on the contempt citation for 11 months, and on March 31 sent Speaker John Boehner a letter explaining he ha unilaterally decided not to investigate Ms. Lerner.
According to Ronald Machen’s rationale, Ms. Lerner’s statement made only “general claims of innocence” that did not forfeit her Fifth Amendment rights to refuse to answer questions. To reach this conclusion, Ronald Machen had to willfully ignore that Ms. Lerner, in her statement, rebutted specific accusations against her.
“[M]embers of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption,” she said, before claiming she had never done so. Those accusations had been detailed to her in a letter from former House Oversight Committee Chairman Darrel Issa, eight days before she testified.
Ronald Machen also had to ignore that Ms. Lerner had prior to her House appearance voluntarily met for an interview with Justice prosecutors. As the Heritage Foundation’s Hans von Spakovsky has noted, the D.C. Circuit Court of Appeals in its 1969 Ellis v. U.S. decision found that “once a witness has voluntarily spoken out, we do not see how his protected interest is jeopardized by testifying in a subsequent proceeding, provided he is not required to disclose matters of substance which are unknown to the Government.”
Since Ms. Lerner had already disclosed to the “government” (prosecutors), she lost her privilege to clam up before Congress. And we’d note that after her House stonewall, she again chose to speak in an interview with the Politico website. Ms. Lerner wants the right not to answer questions except when it suits her public-relations purposes.
In any event, the job of making these legal calls belonged to a grand jury—not Ronald Machen.

                                         (Eric Holder with Ronald Machen)

Then again, this is the prosecutor who in an exit interview with the National Law Journal about his tenure touted his allegiance to Attorney General Eric Holder, describing him as a “tremendous mentor and a tremendous friend.”
After Ronald Machen’s performance in shielding Ms. Lerner from the consequences of her actions, Mr. Holder would no doubt return the compliment. The handling of the IRS scandal is a blot on both of their careers. 
(Source: wall Street Journal Opinion, Apr15, 2015)

DWI Is A Breeze Compared To DWB

There’s No Such Crime As ‘Driving While White’

The shooting of Walter L. Scott in South Carolina prompts the question:
When is the last time you heard of a white man in a Mercedes-Benz being pulled over for driving with a broken taillight?
It has probably happened somewhere, sometime, but there’s a better chance of your car being hit by a meteor.
Getting shot dead during a minor traffic stop also isn’t a prevailing fear among white males in America, no matter what type of vehicle they own.

Scott himself didn’t imagine he was going to die when he was pulled over. Unfortunately, he happened to be a Black man driving a Mercedes, which is what got him noticed. He was behind on child-support payments and probably didn’t want to go to jail.
Something happened at the scene, Scott got Tased and then tried to run away. Officer Michael Slager fired eight times, hitting the unarmed 50-year-old in the back. The killing was caught on cellphone video by a bystander.
Slager told the dispatcher that Scott had snatched his Taser, but the video shows the officer dropping an object that looks just like a Taser near Scott’s handcuffed body. Slager has been charged with murder and fired from his job.
The shooting was shocking to watch, as the whole world has, yet the sequence of events leading up to it is sadly familiar to Black men in this country. They can’t afford to drive around as carefree as us white guys.
In September, a South Carolina state trooper shot and wounded another unarmed Black motorist after pulling him over because he allegedly wasn’t wearing his seatbelt.
I’ve got white friends who rarely buckle up, yet I don’t know of one who has been ticketed for it, or even stopped and warned. Maybe they’re just lucky.
The Black comedian Chris Rock uses his Twitter account to record his traffic-stop encounters. In a recent seven-week period, he was pulled over three times (once as a passenger).
It’s possible he and his friends aren’t very good drivers. It’s also possible they’ve been targeted merely for “Driving While Black,”(DWB) an unwritten offense that still exists in many regions of the country, not just the Deep South — and not just in high-crime areas.
The odds would be fairly slim for a black man driving a luxury car not to be pulled over at least once on a road trip between, say, Utah and North Dakota. Even in a ’98 Taurus he’d need to be watching the rear-view mirror for blue lights.
Generalizing about traffic stops can be problematic. The numbers often spike in certain neighborhoods at certain times of day, and a small number of officers can account for many incidents of racial profiling.
Still, the evidence that it exists is more than anecdotal.
Using a “Police-Public Contact Survey,” the U.S. Justice Department analyzed traffic stops of drivers aged 16 or older nationwide during 2011, comparing by race and weighting by population.
To the astonishment of hardly anyone, Black drivers were about 31 percent more likely to be pulled over than white drivers, and approximately 23 percent more likely to be pulled over than Hispanic motorists.
A series published by the Washington Post in September reported that minority drivers had their cars searched (and cash seized) at a higher rate than white drivers. That jibed with the Justice Department’s conclusion that vehicle searches occurred substantially more often when the driver wasn’t white.
Another unsurprising fact: Compared to other races, white drivers were most likely to get pulled over for speeding. Black drivers were statistically more likely to be stopped for vehicle defects or record checks.
Which is what happened to Walter L. Scott in North Charleston.
Never in almost five decades of driving have I been pulled over for a busted brake light or a burned-out headlight, even though I’ve had a few.
It didn’t matter whether I was in a Dodge, Oldsmobile, Jeep, Ford, Chevy or even, for a while, a Mercedes SUV.
The only thing I’ve ever been stopped for is, like many impatient white people, driving too fast.
And every time a police officer walked up to my car, I knew exactly why he or she wanted to chat with me. It was no mystery whatsoever.
That’s not always the case for a Black man behind the wheel of a car in this country. This is not just a perception; it’s a depressing reality.
If it had been me or Matt Lauer or even faux Hispanic Jeb Bush driving that Mercedes-Benz in South Carolina, Officer Slager wouldn’t have stopped the car. Not for a busted taillight, no way.
Which prompts another question: How long can this go on?
(Carl Hiaasen is a columnist for The Miami Herald. Readers may write to him at: 1 Herald Plaza, Miami, FL, 33132.)
Photo: Redjar via Flickr

Judge Sues Social Security Administration For Discrimination

Social Security Administration judge in Portland claims age discrimination

Administrative Law Judge Katherine Morgan, who is 71, is suing the Social Security Administration (SSA) and the Commissioner of SSA in U.S. District Court in Portland for age and sex discrimination..

Judge Katherine Morgan rules on disability cases for the SSA. She has sued the SSA accusing her supervisors of age and gender discrimination and retaliating against her for filing complaints about her treatment.
Judge Katherine Morgan, one of seven judges in the Office of Disability Adjudication and Review (SSA/ODAR) in Portland, said in the lawsuit filed Thursday, March 19th, in U.S. District Court in Portland that she was targeted by the office’s chief judge (CALJ)because of her age. She is 71.

Morgan, who has been a judge since 1994, filed a written complaint to her immediate supervisor, Chief Judge Guy Fletcher, after she was told on Dec. 11, 2013, that she was being targeted in an investigation by the SSA for her performance. The investigation focused on Morgan’s high production rate in deciding cases, for approving a high number of appeals and for attendance issues, according to the lawsuit.
“Chief Judge Fletcher repeatedly falsely accused Judge Morgan of time and attendance violations for documenting her time and attendance in exactly the same manner as the other judges, who were not accused,” the lawsuit says. “The discriminatory conduct directed at Judge Morgan by her fellow employees was known to and acquiesced in by her direct supervisor, Chief Judge Fletcher. The discriminatory conduct was directed at Judge Morgan by Chief Judge Fletcher was known to and acquiesced in by Regional Chief Judge (Carol) Sax, Chief Judge Fletcher’s direct supervisor. The discriminatory conduct was intentional, willful and malicious, entitling Judge Morgan to an award of punitive damages.”
The lawsuit does not specify how much money Morgan is seeking. She demands a jury trial seeking damages for lost money, emotional pain, compensation allowed by law and other legal fees.
The lawsuit was filed on Morgan’s behalf by attorneys from the Portland law firm Norman, Hanson and DeTroy. One of her attorneys, Theodore Kirchner, declined through a member of his staff to respond.
A regional spokesman for the Social Security Administration, Roberto Medina, could not be reached for comment.
Maine’s offices of Disability Adjudication and Review routinely take longer to decide disability appeals than the national average and approve more disability claims than the national average, according Social Security Administration data compiled by the website www.disabilityjudges.com.
In the most recent fiscal year, Maine judges approved 53 percent of disability claim appeals, dismissed 24 percent of claims and denied 23 percent, according to the website’s statistics.
Morgan approved more appeals than any other judge in the Portland office. She approved 65 percent of disability claim appeals, dismissed 20 percent and denied 15 percent. She decided 148 cases from last Oct. 1 to March 11.
By comparison, Judge Fletcher approved 54 percent of appeals, dismissed 15 percent and denied 31 percent. He decided 48 cases in the same period.
Judge John Edwards approved the fewest appeals in the Portland office, with 35 percent approved, 30 percent dismissed and 34 percent denied. He decided 151 cases.
 (By Scott Dolan Staff Writer ,sdolan@pressherald.com)

Deny Social Security Cards To Illegal Aliens

Republicans’ Latest Salvo In Anti-Immigrant Fight: Take Away Social Security Numbers

"Republicans’ Latest Salvo In Anti-Immigrant Fight: Take Away Social Security Numbers"

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Sen. Ben Sasse (R-NE)

(AP Photo/Nati Harnik)

Six Republican senators introduced a bill March 16 that would prohibit the government from issuing Social Security numbers to undocumented immigrants protected under the president’s executive action on deportation relief. The bill is the latest salvo in the Republican-led fight against the president’s immigration policies to grant temporary work authorization and deportation relief to some undocumented immigrants living in the United States.
In a press release, the bill’s sponsor Sen. Ben Sasse (R-NE) wrote that the Amnesty Bonuses Elimination (ABE) Act would “ensure that new Social Security Numbers are not issued to illegal aliens receiving deferred action under the President’s unlawful executive amnesty. … Unfortunately, by offering new Social Security Numbers and payments under the Earned Income Tax Credit, the Administration is undermining the spirit of the 1996 Welfare Reform Act and opening the possibility for amnesty bonuses of more than $24,000 in some cases.”
Once undocumented immigrants are able to obtain Social Security numbers, Sasse claims that they could reap about $2 billion in Earned Income Tax Credit (EITC), a federal benefit. The ABE Act would prohibit new numbers from being issued to anyone who was granted deferred action between June 15, 2012 and November 20, 2014 as a result of the president’s 2012 executive action known as the Deferred Action for Childhood Arrivals (DACA) program.

Just last week, Sasse and Sen. Jeff Sessions (R-AL) sent a letter to the Social Security Administration requesting information on the number of individuals granted social security numbers to determine how many of them would receive benefits under the Social Security Disability Insurance program or the Supplemental Security Income program.
Sasse’s argument that some undocumented immigrants could collect more than $24,000 in EITC comes from an unlikely scenario in which immigrants could file amended tax returns for the last three years and earn the maximum credit available to taxpayers with three or more children and who are within a specific income range. Just 12 percent of EITC recipients fulfill that criteria and many do not qualify for the maximum credit. The last time a lawmaker — Rep. Paul Gosar (R-AZ) — made this argument, a Treasury Department spokesman told the Washington Post that the claims process would mean many undocumented immigrants could owe more taxes rather than reaping a tax benefit.
Social Security numbers allow undocumented immigrants to apply for jobs and to obtain state identification cards like driver’s licenses. A University of California at Los Angeles (UCLA) study found that DACA beneficiaries saw at least a 150 percent wage increase when they’re allowed to work. A Center for American Progress (CAP) study found that moving undocumented immigrants from the informal (under the table) economy into the formal economy would see an 8.5 percent increase in legal, taxable earnings. A previous CAP study found that higher wages earned by undocumented immigrants brought into the formal economy could lead to purchases such as houses, cars, phones, and clothing.
And advocates point out that because undocumented immigrants already pay billions of dollars per year into the Social Security system through sales, income, and other taxes, depriving of them of Social Security numbers leaves then uniquely disadvantaged.
“This bill would leave hard-working immigrant Nebraskans – who already pay state, local, and federal taxes – unable to fully contribute to their communities,” Omaid Zabih, a staff attorney at the immigrant advocacy group Nebraska Appleseed, said. “Jeopardizing the temporary administrative relief programs to keep families together is not in line with Nebraska values of strong families and communities. Now is not the time to inhibit economic growth in our local, state, and national economies. It is the time to move forward with updated immigration laws.”
Since 2013, Republican lawmakers have tried over and over again to roll back the president’s executive action, even withholding Department of Homeland Security (DHS) funding over the policies. A Texas judge has already temporarily halted the president’s latest executive action announced in November 2014, while a 26-state lawsuit attacking the actions could reach the U.S. Supreme Court. 
(by Esther Yu-Hsi Lee)

Refugees Accuse Social Security of Harassment

Refugees Accuse Social Security of Harassment

                        (SSA Acting Commissioner, Carolynn Colvin)

     SAN DIEGO (CN) - The Social Security Administration (SSA) tampered with evidence and harassed and intimidated Vietnamese, Iranian, and Somalian refugees who filed affidavits in an action pending in the 9th Circuit, immigrants claim in a class action.
     Lead plaintiff Mohammad Nassiri et al. sued Social Security Commissioner Carolyn Colvin, the Social Security Administration (SSA), and two SSA agents on March 14 in Federal Court.
     The class consists of "poor, disabled and non-English speaking Vietnamese or Middle Eastern (Somalian, Iraqi and Iranian) refugees in the United States who reside in San Diego County and who have been applying for or receiving Disability Insurance Benefits (DIB) and/or Supplemental Security Income (SSI) benefits."
     According to the lawsuit, the SSA has "been maintaining and implementing an illegal search and interrogation policy with respect to plaintiffs, and have violated the plaintiffs' rights to be free from unreasonable searches and inquisition."
     Social Security agents have intimidated class members "to recant their prior written testimonies in an ongoing action pending in the 9th Circuit Court of Appeals," according to the complaint.
     The 9th Circuit action relates to the class members' representation in a complaint filed by Alexandra Nga Tran Manbeck, who claims the agency suspended her in 2013 from practicing Social Security law in retaliation for filing a previous class action alleging bias by a Social Security judge. Manbeck was the only attorney in San Diego fluent in Vietnamese.
     The new complaint claims the SSA "intimidated plaintiffs in providing personal information and privileged information in violation of the plaintiffs' privacy right and plaintiffs' attorney-client privilege, even though defendants knew that plaintiffs have been represented by counsel in ongoing litigation in federal court since 2013."
     Class member Anh T. Thai, a 50-year-old Vietnamese refugee, says she was first misled in 2006 by Duke Tran, an SSA employee, into letting him help her apply for benefits. Tran began harassing her in threatening phone calls in March 2013 after she obtained an attorney, including calling her "stupid" for signing loan documents to an acquaintance, and berating her "for seeking legal representation instead of trusting him to help her," according to the complaint.
     After Thai filed her affidavits against the agency in the Manbeck action, two agents bearing guns came to her house twice to question her.
     "Most of the questions centered on whether she was really disabled and whether she was required to pay in advance for legal services to her attorney," the lawsuit states. "The SSA agents threatened her with dismissal of her case if she refused to answer their questions."
     The class claims that because they are "refugees with a long history of being persecuted by the Communist authority in Vietnam, the warlords in Somalia or the ayatollahs in Iran, plaintiffs obviously became intimidated by defendants and complied with defendants' order."
     The plaintiffs seek class certification, an order stop the Social Security Administration and its agents from contacting them before a final hearing or intimidating them without a warrant, and compensatory and punitive damages for civil rights violations.
     They are represented by Quan Minh Chau of Orange, Calif. and Alexandra Manbeck of Cross River, N.Y.  

(Ross, Jamie; Court House News, March 18, 2015)

Social Security Disability Insurance is Failing

 The Social Security Disability Insurance program is failing the disabled and taxpayers. When the SSDI trust fund is depleted in 2016, payments to beneficiaries will be slashed by roughly 20 percent.
 The SSDI trust fund has significantly worsened during the Obama Administration, and its depletion is coming 10 years sooner than experts predicted in 2007.
 President Obama's payroll tax reallocation proposal harms both retirees and the overall solvency of Social Security.
The Social Security Disability Insurance (SSDI) program is failing the disabled and taxpayers. The program faces a funding shortfall of nearly $270 billion over the next decade. The Social Security trustees project that the SSDI trust fund - funded by a 1.8 percent tax on wages up to $117,000 in 2014 - will be depleted by late 2016. At that time, payments to beneficiaries will be slashed by roughly 20 percent. The finances of trust fund have worsened drastically in comparison with the agency's 2007 projection of what would happen. The number of program enrollees is up 21 percent during the Obama administration.
Payments from SSDI have grown rapidly over the past two decades. Only about a third of that growth is from changing demographic factors, such as the aging of the population. SSDI's pending insolvency has been accelerated by the weak economic recovery, less stringent eligibility criteria, and Social Security Administration mismanagement. This includes skewed agency policies that incentivised hundreds of administrative law judges ALJ) to essentially rubber stamp disability claims.
Judge Randall Frye, President of the Association for Administrative Law Judges (AALJ) told 60 Minutes in 2013 that "if the American public knew what was going on in our [disability] system, half would be outraged and the other half would apply for benefits." SSDI must be reformed in order to better serve both the disabled and workers paying Social Security taxes.
Unsustainable Spending Growth
Accurate disability determinations are crucial, since the lifetime cost of someone gaining eligibility for SSDI benefits, including benefits in programs linked to SSDI, is an estimated $300,000 per beneficiary. Once people get SSDI benefits, they generally receive them until they are old enough to transition to the Social Security retirement program.
In 1994, the SSDI portion of the payroll tax was increased by 50 percent. Reforms were promised with the reallocation. The reforms never happened, and SSDI's finances have deteriorated to the point where another reallocation is being proposed.
In 2000, total spending on SSDI was $56 billion; in 2014 it was $144 billion. The program's unfunded liability amounts to $1.2 trillion over the next 75 years. The condition of the trust fund has significantly worsened during the Obama administration, and the depletion of the trust fund is coming 10 years sooner than experts predicted in 2007.


Despite improvements in health and working conditions, a much higher percentage of working-age Americans are now on SSDI than two decades ago. This is true for both men and women, and across age groups. The number of middle-age Americans who tell the Census Bureau that they have a work-limiting disability has actually declined over the last 30 years.
Writing in the Wall Street Journal on February 23, former Social Security Administration official Andrew Biggs noted the disconnect: "Yet the percentage of the working-age population collecting disability insurance benefits has more than doubled to 5.7% in 2014 from 2.7% in 1984. These increases were not anticipated: In 1984 Social Security's trustees projected only 4% of working-age adults would collect disability in 2015."
The rapid growth in SSDI also has put pressure on Medicare's finances, as people are automatically enrolled in Medicare after two years on SSDI. In 2012, SSDI beneficiaries accounted for about 19 percent of total Medicare recipients, up from about eight percent in 1975. Medicare spending for SSDI enrollees in 2011was $80 billion.
Outdated and Overly Subjective Guidelines
Under the Social Security Act, people can only lawfully be awarded disability benefits if they have an impairment "of such severity that [they]... cannot... engage in any... kind of substantial gainful work which exists in the national economy." A key problem with this requirement is the lack of objective criteria for measuring things like an applicant's anxiety, depression, or pain and how those conditions affect the ability to work.
Research by Mark Duggan, President Obama's former advisor for health care policy, shows an increasing number of people qualifying for SSDI with subjective conditions like back pain or depression. More than half of all disability awards are now for people claiming musculoskeletal disorders or mental impairments. According to Duggan, "the employment potential of SSDI applicants with these more subjective conditions remains substantial, and it is often difficult to verify the severity of these conditions (in contrast to cancer or heart conditions). With the liberalization of the medical eligibility criteria, it has become increasingly possible for people who are capable of working to qualify instead for SSDI benefits."
In addition to increasingly subjective medical criteria, many SSA policies are stuck in the past. For example, the agency relies on medical and vocational guidelines from 1978 that don't reflect economic and demographic reality. Outdated rules also allow an inability to communicate in English to be used to award disability - even if the person can perform work that does not require communicating in English.
Workers Leaving the Labor Force
On February 3, Gallup reported that "as many as 30 million Americans are either out of work or are severely underemployed." Economists with the Federal Reserve Bank of Atlanta concluded in May 2013 that the growth in disability is a significant factor in the rapid decline in the labor force participation rate during the Obama administration. According to Biggs, for "less-educated workers, the typical annual disability package of almost $15,000 in cash payments and another $9,000 in Medicare benefits - coupled with the ability to earn more than $13,000 from work without losing benefits - can be attractive." Fewer than one percent of program beneficiaries return to the workforce in any given year.


A 2010 paper published jointly by the liberal Center for American Progress and the Brookings Institution echoes this point: "SSDI is ineffective in assisting workers with disabilities to reach their employment potential or maintain economic self-sufficiency. Instead, the program provides strong incentives to applicants and beneficiaries to remain permanently out of the labor force." Applicants are often counseled that they should stop working in order to increase their chance of winning benefits. SSDI also is too often used as an early retirement program or as a long-term extension of unemployment insurance. People who lose their jobs are increasingly likely to leave the labor force and apply for SSDI.
Social Security Administration's Broken Appeals Process
The appeals process for SSDI applications consists of administrative law judges (ALJ) who evaluate disability claims. This step generally comes after two previous denials from State government examiners at the Disability Determination Service (DDS). Given this, it is particularly disturbing that hundreds of ALJs over the past decade placed almost everyone before them onto disability.  That represents a 100% reversal rate. Essentially everyone who applied for benefits, was granted benefits. The broken process has inappropriately placed hundreds of thousands, if not millions, of people onto disability. According to one Social Security expert, the standards ALJs apply for mental illness and pain have become less stringent over time.
A central problem is that SSA sought to reduce a large backlog of appeals by focusing entirely on the quantity of ALJ decisions, with no concern about quality. One ALJ testified before a House committee in 2013 that a judge's production "is SSA management's singular and exclusive focus in its administration and oversight of SSA's disability hearings process.... Instead of managing a meaningful federal adjudication program, SSA management has substituted a factory-type production process... causing incalculable damage to the adjudication process at SSA."
Another ALJ put it this way: "It has become increasingly clear the Social Security disability programs, instead of only awarding benefits to adults who are unable to work, is granting benefits to those who can work - effectively giving away money for nothing."
ALJs face incentives that encourage approvals. Since denials tend to be appealed, and approvals do not, ALJs need to spend more time crafting denial decisions. It is much easier and faster for an ALJ to approve a claim. Other problems also bias ALJ decisions to favor approvals. First, hearings are non-adversarial, so there is no one to represent the taxpayer interests. Second, there is no one involved with the previous denials to present their reasons for the denial at a hearing. Third, claimants are not required to submit all relevant evidence. One ALJ told the Washington Post in an October 18, 2014, article: "I really wonder if what we're doing is effective at all.... If, based on the amount of evidence we get, my decision is any better than flipping a coin."
Many Judges Incorrectly and Unfairly Apply Disability Law
In response to negative attention about problems with the disability appeals process, the Social Security Administration finally decided to evaluate the quality of a small sample of its judges. The agency conducted reviews of about 50 ALJs. It found that many of them repeatedly violated disability laws and policies, including: misusing vocational experts; inappropriately altering information to make it appear claimants cannot work; inappropriately evaluating the effect of drugs and alcohol on impairments; and inappropriately using boilerplate language in decisions. Despite the ability to do so, the agency has failed to take necessary action to protect the public from many of these rogue ALJs.


Between 2005 and 2013, ALJs approved 66 percent of claims, awarding disability benefits to 3.2 million people, including SSDI applicants and Supplemental Security Income applicants. A top management ALJ testified in the House last year that "it raises a red flag" when individual ALJs have an allowance rate in excess of 75 percent. Between 2005 and 2013, ALJs with annual allowance rates in excess of 75 percent put more than 1.3 million people onto disability. The lifetime cost to taxpayers for these claims is estimated at $400 billion. According to a congressional report, "there were 191 ALJs who had a total allowance rate in excess of 85 percent [between 2005 and 2013]. These 191 ALJs awarded more than $150 billion in lifetime benefits between 2005 and 2013. As an indication of the disproportionate nature of the problem, only one ALJ had a total allowance rate below 15 percent between 2005 and 2013."
According to a 2012 report by SSA, "As ALJ production increases, the general trend for decision quality is to go down." This can lead to a patently unfair system, where a claimant's success rests more on getting the right judge than on the merits of their claim.
Agency Fails to Conduct Required Disability Reviews
The Social Security Act requires Continuing Disability Reviews (CDR) at least once every three years for all beneficiaries with non-permanent impairments. SSA estimates that about $10 to $14 in improper payments is prevented for every $1 spent on these reviews.
For the past several years, the agency has defied this legal requirement. The number of reviews conducted by the agency dropped conspicuously in the mid-2000s as the agency diverted resources to other areas. Between 2007 and 2009, the agency only conducted reviews for one percent of SSDI recipients. Last year, SSA reported http://www.gao.gov/assets/670/662398.pdf a backlog of 325,000 reviews.
Reviews conducted between 1980 and 1983 found that 40 percent of program beneficiaries were not disabled. Reviews now fail to remove anywhere close to that number, because they are inappropriately conducted. Claimants must now show significant medical improvement in order for a review to end benefits. This strict standard of review means that the agency cannot remove someone who was wrongfully awarded benefits initially.
According to the National Association of Disability Examiners, poor ALJ decisions and a lack of clarity around the medical improvement standard erode disability program integrity. GAO found that problems associated with the medical improvement standard include inadequate agency guidance, inadequate documentation in ALJ decisions, and an incorrect presumption of disability by examiners. Over the last decade, the agency reviewed 800,000 people it expected to improve when they were initially awarded benefits. As a result of the current limits on disability reviews, 82 percent were found not to have improved, and so those people remained on disability.
SSA Too Cozy with Special Interest Groups
Attorneys and other claimant representatives benefit from SSDI growth as they receive a generous portion of the payments - up to $6,000 when their clients are approved for benefits. These payments are made directly from the trust fund. In 2010, SSA paid $1.4 billion to lawyers and other claimant representatives, up from $425 million in 2001.
The large payments lead many claimant representatives to conceal information and even shop for ALJs known to rubber-stamp applications. The large fees paid from the SSDI trust fund to attorneys and claimant representatives create huge incentives for those groups to oppose common-sense program reforms.
Reforming SSDI Is Important for the Disabled and Taxpayers
Without reform, SSDI will erode economic productivity and will either result in large payment cuts for program beneficiaries or tax increases. A bipartisan solution is urgently needed to fix the program and preserve it for those who truly cannot work.
Rather than reform, President Obama and others have proposed kicking the can down the road and reallocating the Social Security payroll tax. Currently, the total payroll tax equals 12.4 percent of wage income - with 1.8 percent dedicated to SSDI and 10.6 percent to the old age and survivor component. Reallocation would worsen the solvency of Social Security's OASI trust fund and harm retirees. Reallocation would transfer $350 billion from OASI to SSDI in the next five years. This would be a particularly bad idea given that OASI's financial condition is in even worse long-run shape than is SSDI's.
According to Social Security trustee Charles Blahous, "[r]earranging the deck chairs, rather than slowing cost growth, would be an inadequate response with potentially ruinous implications for the program." In a January 15 editorial, the Wall Street Journal used the analogy of "an underwater borrower transferring debt from one maxed-out credit card to another with a higher balance but also a higher spending limit on SSDI. President Obama has failed to lead on this important issue, meaning it falls to Congress to protect and reform." 
(Federal Information & News Dispatch, Inc., March 12, 2015)