Why Carr v. Saul Should Signal the End of Common Law Issue Exhaustion in Inquisitorial Proceedings

George Mason Law Review, Vol. 3, No. 29, 2022

Posted: 22 Oct 2021 Last revised: 6 Nov 2023

See all articles by Jon C. Dubin

Jon C. Dubin

Rutgers University School of Law

Date Written: September 21, 2021


This past April, the Supreme Court in Carr v. Saul, unanimously held that claimants need not have raised at the social security administration’s (SSA) hearing stage, an Article II Appointments Clause challenge to the appointment of their administrative law judges (ALJ), to preserve these structural constitutional issues for judicial review under the common law issue exhaustion doctrine. The Court’s decision extended a 2000 decision by a bare majority of the Court in Sims v. Apfel, categorically rejecting common law issue exhaustion for SSA’s inquisitorial administrative appeals stage of review but reserving the question of applying it at the hearing stage. In this year’s Carr decision, however, the Court also reserved the additional question whether common law issue exhaustion should more broadly apply to bar judicial review of “routine” (non-structural constitutional) objections not raised at the hearing—an issue which divided the Justices in separate concurring opinions. Since SSA annually adjudicates approximately 800,000 disability benefits hearings, virtually all involving “routine” issues with critical life support benefits for medically infirm and low-income persons at stake, this open question has raised serious concerns for claimants and agency adjudicators alike. This article addresses the important question reserved by the Court in Carr. It concludes that the Carr Court’s reasoning should put to rest the debate over the propriety of judicially created issue exhaustion in any inquisitorial SSA adjudicative proceeding, including those at the ALJ hearing stage involving “routine” issues. The Carr and Sims decisions require express consideration of the non-adversarial and informal nature of the adjudication context in question and those considerations will decisively weigh against common law issue exhaustion’s application to any of SSA’s inquisitorial proceedings. The federal courts’ extension of common law issue exhaustion into these proceedings was mistaken from the outset and heedlessly adapted from inapposite and questionably supported precedents from adversarial adjudicative systems. Its further application should be discontinued, and any further consideration of its use in inquisitorial SSA proceedings should be confined to the open, deliberative, participatory and democratically accountable regulatory rulemaking or congressional lawmaking processes.

Keywords: Administrative Law, Social Security Disability Adjudication and Judicial Review, Exhaustion Doctrine, Access to the Courts/Access to Justice

JEL Classification: I, K

Suggested Citation

Dubin, Jon C., Why Carr v. Saul Should Signal the End of Common Law Issue Exhaustion in Inquisitorial Proceedings (September 21, 2021). George Mason Law Review, Vol. 3, No. 29, 2022, Available at SSRN: https://ssrn.com/abstract=3928249 or http://dx.doi.org/10.2139/ssrn.3928249

Jon C. Dubin (Contact Author)

Rutgers University School of Law ( email )

Newark, NJ
United States
973-353-3186 (Phone)
973-353-3397 (Fax)

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