Social Security

COMMENT UPON VOLUNTARY NATURE OF SOCIAL SECURITY
by Larry Becraft, Attorney.

Today, everyday Americans are constantly confronted with greater and more frequent requests from all too many sources that they provide to the inquiring parties their "Number of the Beast," the Social Security number ("SSN"). The examples of this modern day phenomenon are numerous and known to all. Many States are now moving to ostensibly require the display of SSNs upon drivers' licenses. Public school officials demand that school age children obtain SSNs before those children may be enrolled in any public school. Hospitals seek to obtain SSNs for each child born in their facilities. Private parties of all kinds, from banks to employers, deem it essential that they obtain the SSN of everyone with whom they may conduct any business. With all these entities making these demands, surely "the law" must contain a requirement that everyone have the "Number of the Beast"[1]. Or, is it possible that everybody simply acts like lemmings, dutifully following the herd instinct without any question, assuming such requirement without any knowledge of it? More simply put, does "the law" demand that everybody apply for and obtain a SSN, or is such purported obligation nothing more than so much hot air?

The first inquiry regarding the legal duty to apply for and obtain a SSN must involve an examination of the U.S. Constitution and the powers granted therein to Congress. Congress can only possess powers which are contained, expressly or by necessary implication, within the text of the Constitution, particularly Art. 1, section 8. Being straightforward and to the point, the problem here for Social Security is that no particular clause in this or any other article of the Constitution is sufficient to sustain such power to compel a domestic American to participate in a compulsory retirement or benefits scheme. The power to thus mandate participation in Social Security must therefore be one which is based upon an implied power. To determine if this power is one arising by implication, a study of various Supreme Court cases regarding the limits of Congressional power is essential. The States are arguably the governmental entities which might possess the inherent, municipal power to compel participation in a retirement or benefits scheme; but, if the states might have this power, an issue which appears to not have as yet been decided, does Congress have a corresponding power? Can Congress assume this inherent power of the State and claim it as its own?

Examples of Supreme Court cases which place some real limits upon the powers of Congress are manifold. In the License Tax Cases, 72 U.S. 462 (1866), the Supreme Court held that Congress could not authorize the conduct of business within the States in order to tax that business.

In United States v. DeWitt, 76 U.S. 41 (1870), the Court held that a penal regulation in a tax act could not be enforced in a state.

In United States v. Fox, 94 U.S. 315 (1877), the Court held that the United States could not receive property via a testamentary devise contrary to state law.

In United States v. Fox, 95 U.S. 670 (1878), a penal statute remotely related to bankruptcy laws was held inapplicable in the States.

In Patterson v. Kentucky, 97 U.S. 501 (1879), the Court held that U.S. patent laws conferred no superior rights within the States.

In United States v. Steffens, 100 U.S. 82 (1879), federal trademark legislation unconnected with "interstate commerce" was held inapplicable inside the States.

In Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656 (1887), certain penal, federal civil rights legislation was held unenforceable "within a state."

In Exparte Burrus, 136 U.S. 586, 10 S.Ct. 850 (1890), and De La Rama v. De La Rama, 201 U.S. 303, 26 S.Ct. 485 (1906), the Court held that domestic relations matters were solely state concerns.

In Reagan v. Mercantile Trust Co., 154 U.S. 413, 14 S.Ct. 1060 (1894), it was held that federally created corporations engaged in business in the States were subject to state laws.

In Keller v. United States, 213 U.S. 138, 29 S.Ct. 470 (1909), it was held that Congress could not exercise police powers within the States.

In Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688 (1911), it was held Congress could not dictate to a state, Oklahoma, where to locate its state capitol.

In Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529 (1918), and Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449 (1922), the Court held that Congressional attempts to regulate and control manufacturing activities in the States were unconstitutional; see also Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922).

In United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570 (1922), the Court held that Congress could not regulate coal mining in the States.

In Linder v. United States, 268 U.S. 5, 45 S.Ct. 446 (1925), it was held that Congress could not regulate the practice of medicine in the States.

In Industrial Ass'n. of San Francisco v. United States, 268 U.S. 64, 45 S.Ct. 403 (1925), the construction industry was deemed to be inherently of local concern and beyond Congressional powers.

In Indian Motocycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601 (1931), the Court held that Congress could not impose a sales tax on items sold to state and local governments.

Before the advent of Social Security, a statute orily mandated retirement system applicable to interstate carriers was held unconstitutional in Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758 (1935).

The case of Hopkins Fed. S. & L. Ass'n. v. Cleary, 296 U.S. 315, 56 S.Ct. 235 (1935), stands for the proposition that Congress cannot "federalize" state financial institutions over objection from the State.

The cases of A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837 (1935), Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241 (1935), and Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855 (1936), emasculated most of the National Industrial Recovery Acts in part on the grounds of invasion of reserved powers of the States.

In United States v. Butler, 297 U.S. 1, 56 S.Ct. 312 (1936), the Court held that Congress had no direct power to regulate agricultural production within the States.

Finally, in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260 (1970), it was held that Congress could not dictate voter qualifications to the States.

The above decisions, as well as others, do place severe restraints upon the powers of Congress. The genesis of Social Security is the events of the Great Depression. While that era saw extraordinary unemployment and a tremendous decline in national production, still it was not as cataclysmic as other events in our nation's history, such as the War Between the States. Further, no constitutional amendment was adopted during this era which can offer any basis for an expansion of Congressional powers. The legislation which started Social Security in 1935 must be viewed in the light of the various Supreme Court cases decided within a few decades of that legislation and prior thereto.

When Congress adopted the Social Security Act in 1935, the Supreme Court had already addressed the first such act in 1934 and held in Railroad Retirement Board, supra, 295 U.S., at 368, that Congress had no authority to establish a retirement scheme through its most tremendous power, its control over interstate commerce: "The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless.

Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it fairly be said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially related solely to the social welfare of the worker, and therefore remote from any regulation of commerce as such? We think the answer is plain.

These matters obviously lie outside the orbit of congressional power." Additionally, the revolutionary acts of Congress adopted in the two preceding decades had been emasculated in a series of Supreme Court decisions. Are we to suppose that, against this legal background, Congress decided to enact legislation of the caliber which had been struck as unconstitutional in the same year?

In the second Social Security Act of 1935, Congress imposed excise taxes upon employers and those tax receipts were to be deposited with the Treasury. The act further provided schemes whereby participants could enjoy unemployment and retirement benefits. When the act was adopted, parties opposed thereto made challenges to the act, relying upon some, if not all, of the various cases cited above. The major arguments mounted against the act were premised upon contentions that the legislation constituted an invasion of state rights. In Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883 (1937), an employer challenged the unemployment tax imposed upon it and the Court held that such tax was an excise which Congress could impose. In reference to the contention that the subject matter of the act was properly within the historical field reserved to the states, the Court held that Congress could enact legislation to aid the states in an area of great concern. The Court placed considerable emphasis upon the fact that the states were reluctant to adopt unemployment acts because such taxes created differentials between states which had such legislation and those which did not. By creating a national unemployment act, this difference was eliminated and a great benefit to the American people resulted.

The Court, therefore, found nothing constitutionally objectionable to the act as to the issues which were raised. In Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904 (1937), the same rationale was used to uphold the retirement features of the act. The importance of these two cases upholding the Social Security Act concerns the issues which these cases did not raise: neither of them addressed the issue of whether there was a requirement for any domestic American to join Social Security.

The reason that this issue was not raised is because there is no such requirement, unless of course one works for a state government which has contracted into Social Security; see Public Agencies Opposed To Social Security Entrapment (POSSE) v. Heckler, 613 F.Supp. 558 (E.D. Cal. 1985), rev., 477 U.S. 41, 106 S.Ct. 2390 (1986).

The above review should readily demonstrate that there is indeed a real question concerning the point of whether one must submit an application to join Social Security. The cases which challenged the constitutionality of Social Security simply did not raise this issue, and it appears that no case has as yet dealt with it.[2] The reason for this absence of a challenge to such alleged requirement can only be explained by analyzing the act itself to determine if there is such a requirement. Because Congress lacks the constitutional authority to compel membership in Social Security, the act simply imposes no such requirement.

The modern version of the act is codified at 42 U.S.C., sections 301-433. If there were a requirement that every American join the Social Security scheme,[3] one would expect to find language in the act similar to the following: "Every American of the age of 18 years or older shall submit an application with the Social Security Administration and shall provide thereon the information required by regulations prescribed by the Secretary. Every member of Social Security shall pay the taxes imposed herein and records of such payments shall be kept by the Secretary for determining the amount of benefits to which such member is entitled hereunder." Amazingly, no such or similar language appears within the act, and particularly there is no section thereof which could remotely be considered as a mandate that domestic Americans join Social Security.

The closest section of the act which might relate to this point is the requirement that one seeking benefits under the act must apply for the same. But, this relates to an entirely different point than a requirement that one join and secure a number. Since the statutory scheme fails to impose such requirement, the next question to be asked is whether perhaps the Social Security regulations themselves might impose such duty. But here, the regulations are no broader than the act itself, and the duty to apply for and obtain a Social Security card or number boils down to the following found at 20 C.F.R., § 422.103:
"(b) Applying for a number.

(1) Form SS-5. An individual needing a social security number may apply for one by filing a signed Form SS-5, 'Application for a Social Security Card,' at any social security office and submitting the required evidence... "

(2) Birth Registration Document. The Social Security Administration (SSA) may enter into an agreement with officials of a State... to establish, as part of the official birth registration process, a procedure to assist SSA in assigning social security numbers to newborn children. Where an agreement is in effect, a parent, as part of the official birth registration process, need not complete a Form SS-5 and may request that SSA assign a social security number to the newborn child. "(c) How numbers are assigned.

(1) Request on Form SS-5. If the applicant has completed a Form SS-5, the social security office... that receives the completed Form SS-5 will require the applicant to furnish documentary evidence... After review of the documentary evidence, the completed Form SS-5 is forwarded... to SSA's central office... If the electronic screening or other investigation does not disclose a previously assigned number, SSA's central office assigns a number and issues a social security number card...

(2) Request on birth registration document. Where a parent has requested a social security number for a newborn child as part of an official birth registration process described in paragraph (b)(2) of this section, the State vital statistics office will electronically transmit the request to SSA's central office...Using this information, SSA will assign a number to the child and send the social security number card to the child at the mother's address." The purported duty to apply for and obtain a Social Security number therefore boils down to this: you get it if you need it or request it. There is no legal compulsion to do so.

With the act of applying for and obtaining a SSN being entirely voluntary, the next question to be asked is whether any State can force you to use this number which is voluntary in the first place. This appears to have been addressed by § 7 of the Privacy Act of 1974, 88 Stat. 1896, which reads as follows: "Sec. 7. (a)

(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number."
(2) the provisions of paragraph (1) of this subsection shall not apply with respect to--
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal, State or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual. (b) Any Federal, State, or local government agency which requests an
individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it." See United States v. Two Hundred Thousand Dollars in U.S. Currency, 590 F.Supp. 866 (S.D. Fla. 1984).

Thus, it seems perfectly logical, if having a Social Security number is not mandatory but purely voluntary, no state can use the lack of a number in any adverse way against anyone. The state cannot make that which is voluntary under federal law something which is mandatory under state law. Today, many school districts seek to force school age children to obtain
Social Security numbers before such children may enroll in school.

Further, many states deny drivers' licenses to those who refuse to provide SSNs. All of these acts are of recent vintage and therefore violate the prohibitions contained within the uncodified amendments to the Privacy Act noted above.

We pay more Social Secrity into Congressmen than we pay into our own, believe it or not. Perhaps we ask the wrong questions at election time. Our Senators/Congressmen do not pay into Social Security. Therefore they do not collect from it either. Social Security benefits were not suitable for them. They felt they should have a special plan, which they voted in many years ago. In more recent years, no congressperson has felt the need to change it. After all they had the sure fire great plan that would work.

For all practical purposes their plan works like this: When they retire no matter how long they have been in office, they continue to draw their same pay until they die, except it may be increased from time to time by the cost of living adjustments. For example, a former Senator (not to mention names) and his wife may be expected to draw $7,900,000.00 over an average life span. The Mrs drawing $275,000.00 during the last year of her life. Their cost for this excellent plan is "$0", nada, zilch.

This little perk they voted in for themselves is free to them. You and I pick up the tab for this plan. Retirement plan funds come directly from the General Funds. Our tax dollars at work! Social Security, which you and I pay into every payday for our own retirement, with an equal amount matched by our emloyer, we can expect to get an average of $1,000.00 per month. Or, we would have to collect our benefits for 68 years and 1 month to equal this Congressman's benefits. Imagine for a moment that you could structure a retirement plan so desirable, a retirement plan that worked so well, that the Railroad Employees, Postal Workers, and others who were not in the plan would clamor to be included.

This is how good Social Security could be, if only one small change was made. That change would be to jerk the Golden Fleece Retirement Plan out from under the Senators/Congressmen. Put them into the Social Security plan with the rest of us and watch how fast they fix it!!! If you want to know if Social Security will be there when you are ready to retire, it would only happen if things were changed. Plant a seed and spread the word and ask the people around you if they really know where is the Social Security going. Do you think it is because there are baby boomers???

Time to find the truth because The Truth Will Set You Free!
SIGN UP NOW?

Notice:

To All Workers and Employees Regarding the Possession and Use of Social Security Numbers.
There is no law requiring a person to have, obtain or use a Social Security Number to live or work in the United States. Social Security is a voluntary system and there is no legal requirement that an individual obtain or use a Social Security Number.

The Social Security Act requires the Social Security Administration to establish and maintain records of wages and self-employment income for each individual whose work is covered under the program; a Social Security Number is needed for that purpose. No social security benefits will be paid to you unless you obtain and use a Social Security Number.

The Internal Revenue Service (IRS) imposes no penalty on an employer if the failure to show a Social Security Number (SSN) or Taxpayer Identification Number (TIN) for an employee was due to reasonable cause and not to willful neglect. See 26 USC §6109(a)(3), §6721(a)(2)(B), §6721(c)(1)(B), and §6724(a). The IRS requires an employer request (IRC §6109(a)(3)) the employee to provide the employer with either an SSN or TIN.

However, the employee may refuse to provide an SSN or TIN. An employer is prohibited by Title VII of the Civil Rights Act from dismissing any employee for refusing to provide an SSN or TIN because of their religious belief or creed. Section 7 of Public Law 93-579 provides that: (a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number. If you do not wish your employer to use your Social Security Number, you should tell them in writing, that you elect to withdraw the use of your Social Security Number and request your employer to enter the phrase "Employee Refused to Provide" in the space provided for a Social Security Number when your employer reports your wages and taxes. 18 USC Sec. 242 and 42 USC Sec. 1983 provides that:

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both;" 42 USC Sec. 1983 further provides that a violator "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 USC Sec. 408 provides that: "Whoever ... (8) discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both."

This notice must be posted in a conspicuous place where it can be read by all employees and workers.