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Sep 8, 2020 9:19 AM ET

Chermol & Fishman, LLC: The Trump Administration Argues That Unrepresented Severely Mentally and Intellectually Disabled Individuals Must Specifically Articulate Constitutional Challenges or Lose Their Constitutional Rights

Legal Newswire

iCrowd Newswire - Sep 8, 2020

the federal government admitted to the United States Supreme Court that the nation’s Administrative Law Judges (ALJs), who decide disability cases for the Social Security Administration (SSA) and many other matters, were appointed to their positions in a manner that violated the Constitution. Chermol & Fishman, LLC – a leading and highly experienced disability law firm helping disabled persons – notes that for more than seven months thereafter, the federal government chose to allow hearings on these life and death matters to be conducted by ALJs it knew had no legal authority to do so.


The government’s willfully unconstitutional actions eventually led to litigation on this issue in various parts of the country. In that litigation, the government has consistently conceded that it violated the constitutional rights of every single one of these disability claimants. But rather than offer relief to them for this violation of their basic rights, the Trump administration has argued that these disability claimants lost their constitutional rights by not specifically asserting them to the illegal ALJ they had appeared before. In other words, even the severely mentally ill and those with very low IQs, who often appear before ALJs unrepresented, must be able to specifically articulate their rights under the Appointments Clause of the Constitution or lose those rights.


By law, disability hearings are both non-adversarial and informal. Social Security Administration (SSA) itself specifically advises disability claimants that their hearings are informal. Indeed, nearly every disability hearing begins with the ALJ informing the claimant that the hearing is “informal.” The Trump administration and its attorneys have not yet articulated how disability hearings are the type of “informal” legal proceedings at which people can unknowingly forfeit their constitutional rights.

Although the number of cases involved in this litigation is actually very small compared to the overall disability case load, appeals are pending on this issue in nearly every circuit. The first court to rule on the issue was the Third Circuit court of Appeals and it ruled that the disability claimants whose constitutional rights had been violated by SSA were entitled to relief.

The court noted that SSA’s rules and regulations contain no provision that individuals lose their constitutional rights by not specifically asserting them at a disability hearing. By contrast, the Eighth and Tenth circuits have sided with the Trump administration, but neither of those courts addressed the informal nature of disability hearings.

Due to the split in the circuits, the Supreme Court is likely to have the final word. There are currently two certiorari petitions pending before the Supreme Court based upon the two cases which claimants lost in the Eighth and Tenth Circuit Courts of Appeal. Whether these specific petitions are granted or not, the Supreme Court is likely to eventually take up the issue.

The result of any eventual Supreme Court decision on this issue will reach well beyond the narrow parameters of any Appointments Clause litigation. If the position of the Eighth and Tenth Circuits is eventually adopted then for the first time in the history of the disability program, there will be a nationwide rule that claimants lose rights which they do not specifically assert at what are supposed to be informal hearings.

About Chermol & Fishman, LLC

Chermol & Fishman, LLC is a leading and highly experienced disability law firm helping disabled persons and his/her family members seek disability benefits. You must fulfill the eligibility criteria to seek benefits. This is where we help our clients.

Our Social Security Disability Lawyers have in-depth knowledge of disability law, and we have won prominent settlement amounts for the claimants. David Chermol has more than 20+ years in representing SSDI/ SSI claimants, both at the administrative level and federal courts.

Media Contact:

David F. Chermol, Esq 
Tel.: 215-464-7200

Contact Information:

David F. Chermol, Esq 
Tel.: 215-464-7200

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