If I had to fix the country I would write the Constitution, as is, with all the Amendments. The Constitution is an amazing piece of legislation. The problem is that it has been diluted and reinterpreted to suit the current political flavor. The common assumption that the Supreme Court protects the Constitution is misplaced. Neither the Bill of Rights nor subsequent Amendments define the role of the Supreme Court as interpreting the Constitution. Despite this, the Supreme Court is about to change how we live and how we retire. Yes the Supreme Court will decide our fate especially in terms of how we benefit from our investment in Social Security.
Because there is no $2.7 Trillion "trust fund,” Social Security benefits have already started coming out of general funds. It will become untenable to continue to do so. And—as with the fate of the Affordable Care Act—the Supreme Court will make the final judgment. And we have a portent of how they will decide.
Already the Supreme Court has provided Congress with two views of what Social Security is: It can be either a social program or it can be an insurance program. And although these are mutually exclusive interpretations, the Supreme Curt made both judgments.
In 1960 the Supreme Court decided that Social Security is a social program. It denial benefits to a Bulgarian immigrant Ephram (Fedya) Nestor who came to the United States in 1913 until he was deported in 1965 because he lied on his citizenship application by not admitting that he was a member of the communist party at the time. Despite his continued contribution to Social Security for 19 years—since its inception in 1935--and despite that he was already receiving benefits he was deported and denied Social Security benefits. But his deportation, and subsequent denial of benefits, went beyond the 1954 deportation law. The fact that his second wife Barbara Nestor (nee Herman)—also a Bulgarian immigrant—was denied social security indicates that Social Security benefit payments are up to the whim of the state. The Supreme Court established the principle that entitlement to Social Security benefits is not a contractual right. Yale law professor Charles Reich famous 1964 article "The New Property"—in which he called Nestor "the most important of all judicial decisions concerning government largess"—urged courts to provide social security benefits the same protections as other property.
In the Nestor case the Supreme Court argued that Social Security was not insurance, and that "earned" social insurance benefits were neither "property" nor contractual right, a major pronouncement that has never been overturned—then came the story of an Amish farmer, Edwin D. Lee, and the Supreme Court flip-flopped. In 1982 the Supreme Court argued that Social Security is in fact an insurance program and not a social program.
Lee, who lived near New Wilmington, Pennsylvania, failed to withhold social security taxes from his employees or to pay the employer's share of such taxes because he believed that payment of the taxes and receipt of benefits would violate the Amish faith: "But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.” Timothy 5:8. Edwin Lee and the Amish do not object to paying taxes except for the Social Security and unemployment taxes. They protest these taxes, formally, on the grounds that they represent forms of insurance, which their religion prohibits.
Lee sued in Federal District Court for a refund, claiming that imposition of the taxes violated his First Amendment free exercise of religion rights and those of his employees. In passing this judgment, Chief Justice Burger argued that it “… is unconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds.” Clearly arguing that Social Security is an insurance program. A similar claim by a member of Sai Baba was denied exemption because although opposed to insurance on religious grounds, the faith did not provide for its members.
These two cases are important because they hold two divergent and exclusive interpretations of the law at the same time. Although there have been many other cases, the fact that these two judgments have not been reconciled has to be intentional. It allows Supreme Court to interpret the law to benefit the type of Congress that we have. When Social Security benefits can no longer be paid from the general fund, then there will be judgments on who and how much will benefit. Whatever the outcome, the Supreme Court has already decided that our benefits are not entitled nor guaranteed. We have to continuously make Congress accountable for the “trust fund” that we lost “trust” in and which has no ”funds.” The Fifth Amendment ends: “nor shall private property be taken for public use, without just compensation." All we need now is for the Constitution to be honored.
© USA Copyrighted 2014 Mario D. Garrett