(Slip Opinion)

1

Constitutionality of the Commissioner of Social 

Security’s Tenure Protection

The President may remove the Commissioner of Social Security at will notwithstanding 

the statutory limitation on removal in 42 U.S.C. § 902(a)(3).

The conclusion that the removal restriction is constitutionally unenforceable does not 

affect the validity of the remainder of the statute.

July 8, 2021

MEMORANDUM OPINION FOR THE 

DEPUTY COUNSEL TO THE PRESIDENT

You have asked about the scope of the President’s constitutional authority to remove the Commissioner of the Social Security Administration

(“SSA”), who by statute may be removed only for neglect of duty or 

malfeasance in office. See 42 U.S.C. § 902(a)(3). At the time Congress 

enacted the Commissioner’s statutory protection from removal, this Office observed that the removal restriction presented a serious constitutional question, although we did not resolve whether the removal restriction

was in fact unconstitutional. See Letter for Lloyd N. Cutler, Counsel to 

the President, from Walter Dellinger, Assistant Attorney General, Office 

of Legal Counsel (July 29, 1994) (“1994 Dellinger Letter”).

In Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court recently concluded that a provision requiring “cause” for the removal of the 

Director of the Federal Housing Finance Agency (“FHFA”) is unconstitutional. That case followed Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), in which the Court held unconstitutional a similar statutory tenure protection conferred on the Director of the 

Consumer Financial Protection Bureau (“CFPB”). We think the best 

reading of Collins and Seila Law leads to the conclusion that, notwithstanding the statutory limitation on removal, the President can remove the 

SSA Commissioner at will.

I.

The Social Security Administration administers the Old-Age and Survivors Insurance, Social Security Disability Insurance, Supplemental 

Security Income, and Special Benefits for Certain World War II Veterans 
45 Op. O.L.C. __ (July 8, 2021)

2

benefits programs. See, e.g., 42 U.S.C. §§ 901(b), 902(a)(4); see generally 

Scott D. Szymendera, Cong. Research Serv., R41716, Social Security 

Administration (SSA): Budget Issues at 1 (Sept. 8, 2014) (“SSA Budget 

Issues”). The agency pays benefits of over a trillion dollars each year, and 

its activities “touch the lives of nearly every American family and are key 

components of the nation’s economic safety net for the aged and disabled.” SSA Budget Issues at 1; SSA, Fact Sheet: Social Security, https://

www.ssa.gov/news/press/factsheets/basicfact-alt.pdf (last visited July 7, 

2021).

For the first four years of its existence, the social security system was 

administered by a three-member, freestanding Social Security Board, 

whose members were appointed by the President by and with the advice 

and consent of the Senate and had no express tenure protection. See Social 

Security Act, § 701, Pub. L. No. 74-271, 49 Stat. 620, 635–36 (1935).

From 1939 until 1994, the entity that administered the social security 

system was housed within another agency, subject to the agency head’s 

direction and control, and the agency head did not have tenure protection.

In 1939, Congress placed the Social Security Board within the Federal 

Security Agency, a now-defunct agency that supervised several government benefits programs. See Reorganization Act of 1939, Pub. L. No. 

76-19, 53 Stat. 561; Reorganization Plan No. 1 of 1939, § 202, 3 C.F.R. 

1288, 1290 (1943 Cum. Supp.). In 1946, acting pursuant to statutory 

authority, President Truman abolished the Board and transferred its functions to the Federal Security Administrator. See Reorganization Plan 

No. 2 of 1946, § 4, 3 C.F.R. 192, 192 (1946 Supp.). In 1953, President 

Eisenhower established within the Department of Health, Education, and 

Welfare (later renamed the Department of Health and Human Services 

(“HHS”)), “a Commissioner of Social Security who shall be appointed by 

the President by and with the advice and consent of the Senate,” who 

“shall perform such functions concerning social security and public welfare as the Secretary may prescribe.” Reorganization Plan No. 1 of 1953,

§ 4, 3 C.F.R. 131, 132 (1953).

In the Social Security Independence and Program Improvements Act of 

1994, Pub. L. No. 103-296, 108 Stat. 1464 (“the Act”), Congress changed 

the status of the entity by then known as the Social Security Administration from a component within HHS to an “independent agency in the 

executive branch of the Government.” Id. sec. 101, § 701(a) (codified at 

42 U.S.C. § 901(a)). Under the Act, the SSA Commissioner is “appointed 
Constitutionality of the Commissioner of Social Security’s Tenure Protection

3

for a term of 6 years,” “may continue in office until the entry upon office 

of . . . a successor,” and “may be removed from office only pursuant to a 

finding by the President of neglect of duty or malfeasance in office.” Id. 

sec. 102, § 702(a)(3) (codified at 42 U.S.C. § 902(a)(3)). The Commissioner now leads the SSA as a single-member head, similar to the Directors of the CFPB and the FHFA whose removal restrictions the Court 

found unconstitutional in Seila Law and Collins, respectively.

Congress enacted the current structure of the SSA, including the protection from removal conferred on the Commissioner, in response to concerns about a high turnover among political appointees that affected the 

agency’s performance as well as “policy errors resulting from inappropriate influence from outside the agency.” H.R. Rep. No. 103-670, at 89–90 

(1994) (Conf. Rep.).1 As reflected in the conference report to the Act, the

1994 changes—the shift from sub-agency to agency status, coupled with 

the Commissioner’s new term and tenure protections—were intended to 

promote “management efficiency” and to ensure fidelity to the agency’s 

statutory mission. Id.

When signing the Social Security Independence and Program Improvements Act of 1994 into law, President Clinton commended the 

organizational changes as “elevating the stature of the agency” and important to “maintain[ing] the confidence of all Americans in the Social 

Security program.” Statement on Signing the Social Security Independence and Program Improvements Act of 1994 (Aug. 15, 1994), 2 Pub.

Papers of Pres. William J. Clinton 1471, 1471 (1994). He nonetheless 

noted that, in the opinion of the Department of Justice, the relative rarity 

of a single-member, tenure-protected agency head “raises a significant 

constitutional question,” and that he was “prepared to work with the 

Congress on a corrective amendment that would resolve the constitutional 

question so as to eliminate the risk of litigation.” Id. at 1472.

President Clinton’s signing statement was consistent with advice that 

this Office had provided about the Act. We explained that the Commis-

 1 Cf. H.R. Rep. No. 103-221, at 4–5 (1994) (committee report for similar bill) (“Over 

the past twenty years, SSA has been plagued by a lack of stability and continuity in its 

executive leadership. . . . By establishing a fixed term of office for the Commissioner, . . . 

the Committee bill enhances the likelihood that SSA will attract and retain first-rate 

leadership” that will “lead to the development of far sighted policies and administrative 

practices.”).
45 Op. O.L.C. __ (July 8, 2021)

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sioner’s “removal restriction presents a more serious constitutional question than restrictions on the President’s ability to remove the members of 

multi-person boards that govern the more traditional independent regulatory agencies, and it would severely erode the President’s authority in a 

vitally important area of national concern.” 1994 Dellinger Letter at 1. We

further observed that the SSA’s new structure as an agency led by a single 

person with tenure protection was “extraordinary.” Id. We distinguished 

an analysis we had offered on an earlier version of the legislation, which 

would have provided for a three-person independent SSA board. That 

structure, we thought, would have been permissible because “the President generally will have some input on the make-up of the governing 

body” in the case of “an agency headed by a multi-member body whose 

members may only be removed for cause,” whereas the single Commissioner’s six-year term created “a strong possibility that a President will 

never have a say in the conduct of an agency that affects the lives of every 

American every day.” Memorandum for Walter Dellinger, Assistant 

Attorney General, Office of Legal Counsel, from Michael Small, Office of 

Legal Counsel, Re: Social Security Administration Independence Act at 4 

(July 29, 1994) (attached to 1994 Dellinger Letter); see also Memorandum for Harriet Rabb, General Counsel, Department of Health and Human Services, from Walter Dellinger, Assistant Attorney General, Office 

of Legal Counsel, Re: Restructuring of Social Security Administration at 4

(June 2, 1994).

We did not definitively conclude that the Commissioner’s removal restriction that Congress eventually enacted was unconstitutional, but recommended that the provision be eliminated or revised to avoid “plac[ing] 

the proper administration of our social security system at risk.” 1994 

Dellinger Letter at 2.

II.

As this Office has explained, “[t]he first great constitutional debate in 

the First Congress concerned the power to remove officers of the United 

States”—and that debate has continued ever since. The Constitutional 

Separation of Powers Between the President and Congress, 20 Op. O.L.C. 

124, 166 (1996) (“Separation of Powers”). The Constitution makes no 

reference to the removal of executive officers, aside from impeachment.

U.S. Const. art. II, § 4. Moreover, the Constitution expressly grants Con-
Constitutionality of the Commissioner of Social Security’s Tenure Protection

5

gress authority “[t]o make all Laws which shall be necessary and proper 

for carrying into Execution the foregoing Powers, and all other Powers 

vested by this Constitution in the Government of the United States, or any 

Department or Officer thereof.” Id. art. I, § 8, cl. 18. The Necessary and 

Proper Clause grants Congress broad authority to create the positions that 

executive officers occupy and to structure those offices as Congress 

believes best to achieve its goals. And Congress has wielded this authority 

throughout the Nation’s history by enacting legislation—signed by the 

President—that provides removal protection to an array of executive 

officers. See Seila Law, 140 S. Ct. at 2224–25, 2229–33 (Kagan, J., dissenting); see also Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935)

(upholding removal restrictions for the Federal Trade Commission

(“FTC”)).

On the other hand, the Constitution vests the executive power and other 

specific authorities in a President on whom it imposes a duty to “take 

Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Although the “executive Power” is vested in the President, “the Constitution 

assumes that lesser executive officers will assist the [President] in discharging the duties of his trust,” and that when they do so, those lesser 

executive officers will “remain accountable to the President.” Seila Law, 

140 S. Ct. at 2197 (internal quotation marks omitted). To meet his “take 

Care” duty, the President must have some ability to remove executive 

officers who the President believes are failing to satisfy the constitutional 

command of faithful execution of the laws. See also 1 Annals of Cong. 

463 (1789) (statement of James Madison on the floor of the First Congress that “if any power whatsoever is in its nature Executive, it is the 

power of appointing, overseeing, and controlling those who execute the 

laws”). This removal authority also helps ensure that executive officials 

remain responsive to the President’s supervision.

The constitutional challenge thus posed is how to do justice to both 

congressional and presidential authority in the removal context. This 

Office has acknowledged that tension, requiring that the President enjoy 

“at will” removal power over those officers whose functions consist of 

helping the President perform his or her constitutional responsibilities, 

such as the Secretary of Defense, but accepting removal restrictions in 

some other contexts. Separation of Powers, 20 Op. O.L.C. at 169. We 

have insisted on a careful contextual assessment of particular removal 

provisions, focusing on the specific powers an officer wields and the 
45 Op. O.L.C. __ (July 8, 2021)

6

impact that a removal restriction has on the President’s ability to perform 

his or her constitutional functions. Id. at 170. In so doing, we have relied 

heavily on Supreme Court precedent, in particular the Court’s rationale in 

Morrison v. Olson that identified the central constitutional inquiry as 

being whether a removal restriction would “impede the President’s ability 

to perform his constitutional duty.” 487 U.S. 654, 691 (1988). More

recent Supreme Court decisions have extended the Court’s precedents in 

ways that shift the balance in favor of presidential authority. For the 

reasons given below, we think the best reading of those recent decisions

leads to the conclusion that the President has the constitutional authority 

to remove the SSA Commissioner at will.

A.

Since the Office initially flagged constitutional concerns about the 

Commissioner’s tenure protection in 1994, the Supreme Court has taken 

a series of steps limiting statutory restrictions on the President’s ability 

to remove executive officers. Beginning with Free Enterprise Fund v. 

Public Company Accounting Oversight Board, 561 U.S. 477 (2010), 

where the Court declared unconstitutional a removal restriction for the 

first time in nearly a century, the Court has focused on the potential of 

such restrictions to “subvert[] the President’s ability to ensure that the 

laws are faithfully executed—as well as the public’s ability to pass 

judgment on his efforts.” Id. at 498; see also Myers v. United States, 272 

U.S. 52 (1926) (next-most recent decision holding unconstitutional a 

removal restriction in a statute requiring the Senate’s advice and consent 

prior to the President’s removal of postmasters). Even more recently, the 

Court has issued two decisions addressing the circumstances under which 

Congress may impose limitations on removal of single-member heads of 

agencies.

Last year, in Seila Law, the Court for the first time considered a statutory tenure protection for a single-member head of an independent agency.

See 140 S. Ct. 2183. In that decision, the Court found unconstitutional the 

statutory tenure protection afforded the Director of the CFPB, which 

provided that “[t]he President may remove the Director for inefficiency, 

neglect of duty, or malfeasance in office.” 12 U.S.C. § 5491(c)(3). Seila 

Law began by describing a general rule that “the President possesses ‘the 

authority to remove those who assist him in carrying out his duties.’” 140 
Constitutionality of the Commissioner of Social Security’s Tenure Protection

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S. Ct. at 2198–200 (citation omitted). The Court then stated that it recognized only two exceptions to such unrestricted removal power: one for 

“multimember bod[ies] of experts, balanced along partisan lines” that “do 

not wield substantial executive power,” and another for “inferior officers 

with limited duties and no policymaking or administrative authority.” Id.

at 2199–200 (discussing Humphrey’s Ex’r, 295 U.S. 602, and Morrison, 

487 U.S. 654). The Court found that the CFPB Director fell into neither 

category, and was “vested with significant executive power” based on the 

Director’s authority to “promulgate binding rules fleshing out 19 federal 

statutes [concerning] . . . unfair and deceptive practices,” to “unilaterally 

issue final decisions awarding legal and equitable relief in administrative 

adjudications,” and to “seek daunting monetary penalties against private 

parties on behalf of the United States in federal court.” Id. at 2200–01.

Seila Law also declined to sanction removal protection for the CFPB 

Director because of a lack of historical precedent for the CFPB’s singleDirector structure. Id. at 2201. The parties had identified “‘only a handful 

of isolated’ incidents in which Congress has provided good-cause tenure 

to principal officers who wield power alone rather than as members of a 

board or commission,” including the heads of the Office of Special Counsel, the SSA, and the FHFA. Id. (citation omitted). The Court determined 

that these “modern and contested” examples, which did “not involve 

regulatory or enforcement authority remotely comparable to that exercised 

by the CFPB,” did not provide adequate historical precedent to justify the 

CFPB Director’s protection from removal as a single-member agency 

head. Id. at 2202.

Finally, Seila Law held that the CFPB’s single-Director structure failed 

to subject the agency to sufficient “ongoing supervision and control [by]

the elected President.” Id. at 2203. According to the Court, “[t]he CFPB’s 

single-Director structure . . . vest[ed] significant governmental power in 

the hands of a single individual accountable to no one,” because the 

Director was “neither elected by the people nor meaningfully controlled 

(through the threat of removal) by someone who is.” Id. That problem was 

exacerbated by the fact that several other features of the CFPB “foreclose[d] certain indirect methods of Presidential control.” Id. at 2204. In 

particular, the CFPB Director’s five-year term meant that “some Presidents may not have any opportunity to shape its leadership and thereby 

influence its activities.” Id. The Court also thought that the CFPB’s re-
45 Op. O.L.C. __ (July 8, 2021)

8

ceipt of funds outside the appropriations process might allow the agency 

to slip further from the President’s control. Id.

Accordingly, the Court concluded that the statutory restriction on the 

President’s authority to remove the Director was unconstitutional and that 

the President could remove that officer at will. Id. at 2201, 2211. The 

Court expressly left open the question whether removal restrictions for the 

heads of similarly structured agencies, including the SSA, were unconstitutional as well. Id. at 2202.

The Court’s reasoning in Seila Law was open to debate. President 

Obama did not object to the CFPB Director’s tenure protection when 

signing the Dodd-Frank Wall Street Reform and Consumer Protection Act

(“Dodd-Frank Act”) into law. See Press Release, Office of the Press 

Secretary, The White House, Remarks by the President at Signing of 

Dodd-Frank Wall Street Reform and Consumer Protection Act (July 21, 

2010). And four justices in Seila Law dissented strongly, arguing that the 

majority opinion was at odds with constitutional text, history, the Court’s 

precedents, and “the need for sound and adaptable governance.” 140 

S. Ct. at 2226 (Kagan, J., dissenting); see also id. at 2236 (“[C]aselaw 

joins text and history in establishing the general permissibility of forcause provisions giving some independence to agencies.”). In the dissent’s view, the majority’s claimed general rule of presidential removal 

power “does not exist.” Id. at 2225. The dissenting justices rejected the 

claim that the removal protection for the CFPB Director was novel, noting 

that the “CFPB wields the same kind of power as the FTC” and its head 

“receive[s] the same kind of removal protection,” such that the Director’s 

tenure protection should be constitutional under Humphrey’s Executor. Id. 

at 2238. The dissent criticized the majority’s single-head distinction, 

insisting that examples of single-headed independent agencies were not as 

rare as the majority claimed and that, if anything, multi-member commissions are harder for the President to control. Id. at 2241–42. Most fundamentally, the dissent criticized the Court for unjustifiably restricting 

Congress’s constitutional power to shape administrative bodies to meet 

pressing needs and for deviating from the Court’s longstanding pattern of 

leaving “most decisions about how to structure the Executive Branch to 

Congress and the President, acting through legislation.” Id. at 2224, 

2236–38.

After Seila Law, there remained a number of ways to potentially distinguish the CFPB Director from the SSA Commissioner that could have 
Constitutionality of the Commissioner of Social Security’s Tenure Protection

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been relevant to the constitutional analysis. As observed in Seila Law

itself, the SSA’s “role is largely limited to adjudicating claims for Social 

Security benefits.” Id. at 2202 (majority opinion). Because adjudication is

a primary function of the SSA, the SSA Commissioner arguably is more 

like the Commissioners of the Federal Trade Commission, for whom the 

Court upheld tenure protection in Humphrey’s Executor, 295 U.S. 602.2

The Court also previously emphasized the distinctiveness of adjudicatory 

authority in inferring a constitutionally permissible removal protection for 

the members of the War Claims Commission in Wiener v. United States, 

357 U.S. 349, 356 (1958).

Last month, however, the Court issued its decision in Collins, which 

concluded that “[a] straightforward application” of Seila Law meant that

the FHFA Director’s statutory protection from removal by the President 

except “for cause” was unconstitutional. 141 S. Ct. at 1784. The Court 

found no dispositive distinctions between the FHFA and the CFPB. Although the Court recognized the agencies’ difference in scope, it found 

that “the nature and breadth of an agency’s authority is not dispositive in 

determining whether Congress may limit the President’s power to remove 

its head.” Id. Furthermore, both agencies exercised authority in ways that 

could have a direct or indirect “impact on millions of private individuals 

and the economy at large.” Id. at 1785–86. Nor was the Court persuaded 

that the FHFA took on the status of a private party, as opposed to an 

executive entity, when it acted as a conservator or receiver. Id. at 1785.

Collins narrows the arguments available to meaningfully distinguish 

the SSA Commissioner’s statutory removal protection from the provision 

found unconstitutional in Seila Law. To be sure, Collins “d[id] not comment on the constitutionality of any removal restriction that applies” to 

the SSA Commissioner, see id. at 1787 n.21, and therefore cannot be said 

to definitively resolve the question. It did, however, minimize the import 

of the distinctions Seila Law had drawn between the CFPB and other 

 2 See Seila Law, 140 S. Ct. at 2199 (noting that Humphrey’s Executor “acknowledged 

that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed ‘a field of doubt’ that the Court 

left ‘for future consideration’” (citation omitted)). But see id. (explaining that the Court in

Morrison had “[b]ack[ed] away from the reliance in Humphrey’s Executor on the concepts of ‘quasi-legislative’ and ‘quasi-judicial’ power,” viewing “the ultimate question as 

whether a removal restriction is of ‘such a nature that [it] impede[s] the President’s ability 

to perform his constitutional duty’” (citation omitted)). 
45 Op. O.L.C. __ (July 8, 2021)

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similarly structured agencies. Id. at 1784; see also id. at 1802 (Kagan, J., 

concurring) (“The SSA has a single head with for-cause removal protection; so a betting person might wager that the agency’s removal provision 

is next on the chopping block.”).3 Indeed, the principal criticism in Justice 

Kagan’s concurrence in Collins was that the majority opinion had abandoned Seila Law’s inquiry into whether a single-director agency wielded 

“significant executive power.” Id. at 1800–01; accord id. at 1805 (Sotomayor, J., dissenting) (focusing on the FHFA’s lack of significant 

executive power).

B.

In light of the Court’s reasoning in Collins and Seila Law, we have 

reexamined the constitutional concerns that we previously raised about 

the SSA Commissioner’s protection from removal when Congress enacted 

the provision in 1994. We believe that the best reading of those decisions 

compels the conclusion that the statutory restriction on removing the 

Commissioner is unconstitutional. Therefore, the President may remove 

the Commissioner at will. We emphasize that both of these recent decisions leave open the possibility that certain agencies, including (and 

perhaps especially) some that conduct adjudications, may constitutionally 

be led by officials protected from at-will removal by the President. But we 

think that under Collins and Seila Law, the combination of features of the 

SSA—a single Commissioner whose term extends longer than the President’s, the immense scope of the agency’s programs, the Commissioner’s 

broad power to affect beneficiaries and the public fisc, and the SSA’s 

largely unparalleled structure—meansthat the President need not heed the 

Commissioner’s statutory tenure protection in 42 U.S.C. § 902(a)(3).

First, Seila Law reasoned that a single-headed structure and lengthy 

tenure raise particular constitutional concerns. Although the Court has 

 3 In addition, the government stated in its reply brief in Collins that, “under the government’s reading of Seila Law, the President must have the power to remove at will the 

single heads of the Social Security Administration and Office of Special Counsel, both of 

whom likewise exercise ‘significant executive power.’” Reply and Response Brief for the 

Federal Parties at 26, Collins, Nos. 19-422, 19-563 (U.S. Oct. 2020). As discussed below, 

this opinion does not address the validity of tenure protections conferred on the Special 

Counsel, whose removal restrictions implicate different considerations, or the head of any 

other agency that does not share the SSA’s specific combination of features.
Constitutionality of the Commissioner of Social Security’s Tenure Protection

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upheld removal restrictions for an agency exercising adjudicative functions when the agency was headed by a body composed of multiple members, see Humphrey’s Ex’r, 295 U.S. at 628; accord Wiener, 357 U.S. at 

350,4 the Court in Seila Law distinguished the CFPB Director in part 

based on the Director’s position as the agency’s sole head. 140 S. Ct. at 

2201. So, too, the SSA Commissioner has the ultimate statutory responsibility for adjudication of claims under the SSA’s benefits programs. Seila 

Law further observed that the CFPB Director’s term was five years and, 

depending on the timing, “an unlucky President might . . . find herself 

saddled with a holdover Director from a competing political party.” Id. at 

2204. The Commissioner’s six-year term raises the same issue. Here, in 

fact, the incumbent Commissioner was appointed in 2019 to a term that 

will not expire until January 19, 2025, the day before the end of the President’s current term. See PN94—Andrew M. Saul—Social Security Administration, 116th Cong. (2019), https://www.congress.gov/nomination/

116th-congress/94. Insulating the SSA Commissioner from removal 

would thus impair the President’s ability to shape the policies of the SSA

across the entirety of the term for which he was elected.

Second, the vast size and importance of the SSA’s programs distinguish 

it from many other agencies and adjudicatory contexts. Social Security “is 

one of the federal government’s largest programs.” Barry F. Huston, 

Cong. Research Serv., IF10426, Social Security Overview at 1 (updated 

May 7, 2020). “Today, about 178 million people work and pay Social 

Security taxes and about 64 million people receive monthly Social Security benefits.” SSA, Support, https://www.ssa.gov/agency/pillars/support.

html (last visited July 7, 2021). Initially aimed at “ensur[ing] the financial 

security of members of the workforce when they reach old age,” BNSF 

Ry. Co. v. Loos, 139 S. Ct. 893, 898 (2019), over time Social Security has 

also become a central mechanism for providing financial support to the 

disabled and to families of deceased workers. See Barry F. Huston, Cong. 

Research Serv., R42035, Social Security Primer at 1–2 (updated May 15, 

2020). Under the Commissioner’s supervision, the SSA reviews over 

650,000 claims filed under the Social Security Act every year—

 4 See also Collins, 141 S. Ct. at 1783 n.18 (noting that the Court in Wiener had reasoned that “the War Claims Commission was an adjudicatory body, and as such, it had a 

unique need for ‘absolute freedom from Executive interference’” (quoting Wiener, 357 

U.S. at 353)).
45 Op. O.L.C. __ (July 8, 2021)

12

adjudication on a vast and unique scale. See SSA, Hearings and Appeals, 

https://www.ssa.gov/appeals/about_us.html (last visited July 7, 2021).

The financial impact of Social Security is equally massive. In 2019, the 

social security system collected $1,062 billion in taxes and paid $1,059 

billion in benefits, while the social security trust funds held $2.9 trillion in 

assets in 2020. See Social Security Overview at 1. It is difficult to overstate the agency’s significant footprint on daily American life. See Collins, 141 S. Ct. at 1785 (emphasizing that “FHFA actions . . . could have 

an immediate impact on millions of private individuals and the economy 

at large”).

Third, the Commissioner not only oversees the adjudication of claims 

for social security benefits, but also administers and sets policy for the 

agency’s extensive benefits programs, and can impose monetary penalties 

in certain situations.

5 See Seila Law, 140 S. Ct. at 2201 (noting the importance of a single Director exercising “significant executive power”);

see also Restructuring of Social Security Administration at 4 (“[A]significant amount of the [SSA’s] work is devoted to adjudicating disputed 

social security claims,” but “the SSA performs other functions, such as 

administering the Social Security system, that can be categorized as 

executive functions.”). But see Collins, 141 S. Ct. at 1783–84 (appearing 

to dispense with or diminish the importance of the “significant executive 

power” inquiry). The Commissioner manages the SSA’s massive benefits 

programs and oversees an agency that employs almost sixty-thousand

government workers.

6 Moreover, the Commissioner makes certifications 

and determinations with respect to program-related trust funds and is one 

 5 Indeed, this management role likely occupies more of the Commissioner’s time than 

adjudication. Although the governing regulations authorize the Commissioner to review 

certain adjudicative decisions, see, e.g., 20 C.F.R. § 498.222(a), the agency’s adjudicatory 

functions are largely performed by designees of the Commissioner, including Administrative Law Judges and members of the Appeals Council, see, e.g., id. §§ 404.983, 416.1483.

6 See 42 U.S.C. §§ 901(b) (“It shall be the duty of the Administration to administer the 

old-age, survivors, and disability insurance program.”), 902(a)(4) (“The Commissioner 

shall be responsible for the exercise of all powers and the discharge of all duties of the 

Administration, and shall have authority and control over all personnel and activities 

thereof.”); see also id. §§ 902(a)(6) (providing the Commissioner organizational control 

over the SSA), 902(a)(7) (authorizing the Commissioner to assign duties), 904(a) (describing the Commissioner’s hiring and budgetary authorities); SSA, Organizational 

Structure of the Social Security Administration, https://www.ssa.gov/org (last visited 

July 7, 2021).
Constitutionality of the Commissioner of Social Security’s Tenure Protection

13

of the members of those funds’ board of trustees. 42 U.S.C. § 401. To be 

sure, the Commissioner does not exercise enforcement authority comparable in scale to the CFPB Director. But the SSA does have statutory 

authority to impose money sanctions on claimants who make false or 

misleading statements when applying for disability benefits. See id.

§ 1320a-8. Under that authority, the SSA has imposed significant civil 

penalties against individuals. See, e.g., Valent v. Comm’r of Soc. Sec., 918 

F.3d 516, 517 (6th Cir. 2019) (civil penalty of $75,000).

The Commissioner also has substantial authority to issue regulations 

governing the distribution of benefits, including some discretion to issue 

regulations reflecting his or her own policy preferences.

7 The Supreme 

Court has described this rulemaking authority as “‘exceptionally broad.’”

Bowen v. Yuckert, 482 U.S. 137, 145 (1987) (citation omitted) (upholding 

a regulation promulgated pursuant to 42 U.S.C. § 405(a), which at the 

time vested authority in the Secretary of Health and Human Services, that 

“require[d] disability claimants to make a threshold showing that their 

‘medically determinable’ impairments are severe enough to satisfy the 

regulatory standards”). And courts have frequently deferred to SSA decisions that reflect the Commissioner’s judgment as to how best to understand the federal benefits statutes, as well as how best to administer benefits programs. See, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003) 

(deferring to the SSA’s determination that the agency can find a claimant 

not disabled when she remains physically and mentally able to do her 

previous work, without investigating whether that work exists in significant numbers in the national economy); Barnhart v. Walton, 535 U.S. 

212, 217 (2002) (deferring to an SSA regulation stating that a claimant is 

not disabled “regardless of [his] medical condition” if the claimant is 

doing “substantial gainful activity,” which the agency subsequently explained meant that “within 12 months after the onset of an impairment . . .

the impairment no longer prevents substantial gainful activity” (citations 

 7 See 42 U.S.C. §§ 405(a) (“The Commissioner . . . shall have full power and authority 

to make rules and regulations and to establish procedures . . . necessary or appropriate to 

carry out [benefits program] provisions, and shall adopt reasonable and proper rules and 

regulations to regulate and provide for the nature and extent of the proofs and evidence 

and the method of taking and furnishing the same.”), 902(a)(5) (“The Commissioner may 

prescribe such rules and regulations as the Commissioner determines necessary or appropriate to carry out the functions of the Administration.”).
45 Op. O.L.C. __ (July 8, 2021)

14

omitted)).

8 In short, the sheer scale of the Commissioner’s ability to affect 

beneficiaries and the public fisc counsels against statutory interference 

with the President’s authority to remove such a sole agency head.

Fourth, both Collins and Seila Law emphasized that the single-director 

structures at issue in those cases were historical anomalies, see Collins, 

141 S. Ct. at 1783–84; Seila Law, 140 S. Ct. at 2201, and the SSA’s 

structure similarly appears to be without parallel among benefitsadjudicating agencies. As explained in Part I, when the predecessor of the 

SSA, the Social Security Board, was a freestanding agency during the first 

four years of the social security program from 1935 to 1939, it was led by 

a three-member board whose members lacked express tenure protection.

And in the 55 years before the 1994 amendments, the head of the agency 

housing the social security system was always subject to at-will presidential removal.

The Railroad Retirement Board (“RRB”) is perhaps the current agency 

most analogous to the SSA. The RRB administers benefits for railroad

workers, who are not part of the social security system. 45 U.S.C. § 231f.

Like the former Social Security Board, the RRB is a three-member board 

of officials appointed by the President and confirmed by the Senate with 

no express tenure protection. Id. § 231f(a). This Office, moreover, has 

declined to infer such protection for RRB members. Removal of Holdover 

Officials Serving on the Federal Housing Finance Board and the Railroad 

Retirement Board, 21 Op. O.L.C. 135, 141 (1997) (distinguishing Wiener). Most of the other federal benefits adjudication systems are within 

Executive Departments such as the Department of Labor and the Depart-

 8 See also, e.g., Schafer v. Astrue, 641 F.3d 49, 50–51, 61 (4th Cir. 2011) (deferring to 

the SSA’s conclusion that “natural children must be able to inherit from the decedent 

under state intestacy law or satisfy certain exceptions to that requirement in order to count 

as ‘children’ under the [Social Security] Act” in part because of the SSA’s “extensive 

experience in administering the Act’s survivorship benefits program, as well as the legal 

and practical ability to respond more quickly to changing regulatory circumstances”); 

Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 80 (2d Cir. 2009) (deferring to an 

SSA policy prohibiting consideration of the combined effects of a child’s limitations in 

different domains of functioning in part because “[t]he SSA has substantial expertise and 

is charged with administering a complex statute”); Stroup v. Barnhart, 327 F.3d 1258, 

1260–61 (11th Cir. 2003) (deferring to an SSA regulation defining “eligibility” to mean 

that the agency “‘consider[s] you to first become eligible for a monthly pension in the 

first month for which you met all requirements for the pension except that you were 

working or had not yet applied’” (quoting 20 C.F.R. § 404.213(a)(3)).
Constitutionality of the Commissioner of Social Security’s Tenure Protection

15

ment of Veterans Affairs, whose heads are subject to at-will removal by 

the President. There are other agencies that perform discrete adjudicatory 

duties, such as the Small Business Administration, which adjudicates 

grievances arising from various loan and grant programs, see, e.g., 13 

C.F.R. § 134.228, and the Office of Personnel Management, which adjudicates claims for federal retirement benefits, see, e.g., 5 C.F.R. § 841.301 

et seq. But none of those agencies has a single head with express tenure 

protection. See, e.g., 15 U.S.C. § 633(a) (establishing the office of Administrator of the Small Business Administration); 5 U.S.C. § 1102(a) (establishing the office of Director of the Office of Personnel Management).

In light of this combination of factors and the Supreme Court’s recent 

decisions in Collins and Seila Law, we conclude that the President may 

remove the SSA Commissioner at will. We emphasize the limited scope 

of our conclusion regarding the Commissioner. It does not imply any 

similar determination with respect to the validity of tenure protections

conferred on other executive officials—for example the Special Counsel, 

another single-member agency head whose removal restrictions implicate 

different considerations, such as the Special Counsel’s primarily investigatory function and “limited jurisdiction,” Seila Law, 140 S. Ct. at 2202.

Nor does our conclusion speak to the constitutionality of existing or 

hypothetical tenure protections for any other agency heads, including 

multi-member commissions, that do not share the specific combination of 

features identified here. See id. at 2192, 2198–200, 2206 (determining it 

unnecessary to revisit Humphrey’s Executor and distinguishing Wiener as

involving a multi-member adjudicatory body).

C.

Although under Collins and Seila Law the restriction on removal in 42 

U.S.C. § 902(a)(3) is unconstitutional, and thus unenforceable, that conclusion does not affect the validity of the remainder of the statute, including the default term length and succession provisions for the Commissioner. “[O]ne provision of a [statute] may be invalid by reason of its not 

conforming to the Constitution, while all the other provisions may be 

subject to no constitutional infirmity.” Loeb v. Trs. of Columbia Twp., 179 

U.S. 472, 490 (1900) (internal quotation marks omitted). What matters is 

whether the statute’s provisions “are so connected, or dependent on each 

other in subject matter, meaning[,] or purpose, that the good cannot re-
45 Op. O.L.C. __ (July 8, 2021)

16

main without the bad.” Id. (internal quotation marks omitted); see also 

Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2353 (2020) 

(“The Court has long applied severability principles in cases like this one, 

where Congress added an unconstitutional amendment to a prior law.”).

We think it clear that the SSA Commissioner’s removal protection is 

severable from the remainder of the SSA organic statute, just as the Court 

in Seila Law determined that the removal protection provision for the 

CFPB Director was severable from the remainder of the Dodd-Frank Act.

The Chief Justice’s opinion in Seila Law pointed to several factors that 

made severability of the removal restriction appropriate.9 That opinion 

first emphasized that the provisions “bearing on the CFPB’s structure and 

duties remain fully operative without the offending tenure restriction.”

140 S. Ct. at 2209 (opinion of Roberts, C.J.). The same is true here. If the 

President disregarded the prescription that the Commissioner “may be 

removed from office only pursuant to a finding by the President of neglect 

of duty or malfeasance in office,” 42 U.S.C. § 902(a)(3), that would not 

impair the structure or functioning of any other provision of the statute, 

since none of those provisions depends upon the Commissioner’s statutory protection from removal.

Nor is there anything “in the text or history of” the statute that demonstrates that “Congress would have preferred no [SSA] to [an SSA] supervised by the President.” Seila Law, 140 S. Ct. at 2209 (opinion of Roberts, 

C.J.). On the contrary, for most of the SSA’s history, the entity was headed by an individual or individuals who did not enjoy tenure protection.

See, e.g., Reorganization Plan No. 1 of 1939, § 202; Reorganization Plan 

No. 2 of 1946, § 4; Reorganization Plan No. 1 of 1953, § 4. The limitation 

on the Commissioner’s removal only for neglect of duty or malfeasance in 

office is a relatively recent innovation. See Social Security Independence 

and Program Improvements Act of 1994, Pub. L. No. 103-296, sec. 102, 

§ 702(a)(3), 108 Stat. at 1466. It is true that Congress enacted that limitation in part because of its frustration with the SSA’s performance and 

judgment under its prior structure. See H.R. Rep. No. 103-670, at 89–90.

 9 Only two Justices joined the Chief Justice’s severability analysis, but the four dissenting Justices concurred in the judgment with respect to severability, stating that “all 

those who join this [dissenting] opinion[] believe[] that if the agency’s removal provision 

is unconstitutional, it should be severed.” Seila Law, 140 S. Ct. at 2245 (Kagan, J., 

dissenting).
Constitutionality of the Commissioner of Social Security’s Tenure Protection

17

But we seriously doubt Congress believed the next-best solution was to 

dismantle the SSA and the benefits programs it administers altogether.

See Seila Law, 140 S. Ct. at 2210 (opinion of Roberts, C.J.) (concluding 

that even though “Congress preferred an independent CFPB to a dependent one,” it “would [not] have preferred a dependent CFPB to no agency 

at all”); Free Enter. Fund, 561 U.S. at 509 (reasoning that unconstitutional tenure provisions were severable because “[t]he remaining provisions 

are not ‘incapable of functioning independently’ and nothing in the statute’s text or historical context makes it ‘evident’ that Congress . . . would 

have preferred no Board at all to a Board whose members are removable 

at will” (citation omitted)). Those programs are of critical importance to 

tens of millions of United States citizens, who often depend on social 

security benefits for subsistence.

Declaring inoperative other provisions of the 1994 amendments or underlying statute thus would deal “appreciable damage to Congress’s 

work” in the field of federal benefits and could wreak havoc on the individuals who depend on those benefits. Seila Law, 140 S. Ct. at 2210

(opinion of Roberts, C.J.). Such an approach would be inconsistent with 

the Supreme Court’s direction that statutes with constitutional flaws be 

treated modestly whenever possible, “limit[ing] the solution to the problem [and] severing any problematic portions while leaving the remainder 

intact.” Free Enter. Fund, 561 U.S. at 508 (internal quotation marks 

omitted). Regarding the restriction on removal in 42 U.S.C. § 902(a)(3) as 

constitutionally unenforceable while leaving the remainder of the statute 

intact respects those principles, as well as Congress’s judgments about 

how the Executive Branch should administer federal benefits, to the 

maximum extent possible.

III.

We therefore conclude that the President may remove the SSA Commissioner at will. We further conclude that disregarding the constitutionally unenforceable restriction on removal in 42 U.S.C. § 902(a)(3) would

not affect the validity of the remainder of the statute.

DAWN JOHNSEN

Acting Assistant Attorney General

Office of Legal Counsel