Is Bush's social security plan unconstitutional?

[Toucano]

What authority does the government have to establish private accounts?

From what part of the Constitution is that power derived.

Social security is constitutional today because government has the authority to tax and the authority to spend to promote the "general welfare".

But the scheme to establish a private accounts with the financial industry isn't a power vested by the constitution.

What have I missed here?

[The Zanti Regent]

1. Who controls the courts?

The Nazi Party controls the courts. The Clown Court will do whatever the Nazi Party tells it to do.

[coloradodem2005]

2. Bush is unconstitutional.

[Dr Ron]

3. I'd be careful about going down this path

It would just lead to more right wing attacks that current programs are not included in the Constitution.

[ChairOne]

4. Are you saying that there has to be, within the Constitution,

a passage that says verbatim "the President has the power to create private accounts". Or else it's unconstitutional? I don't think even Scalia has as strict a view of governmental powers...

It's all irrelevant, since Congress is the body that would be implementing the vaporware plan.... gdub is just the instigator...

The constitution gives Congress the right to pass laws. This would be a law. What's the problem?

[Toucano]

6. Thanks for your contribution.

The problem is, congress can only pass laws that are legal under the constitution.

That's why illegal laws, like the "partial birth" abortion ban are struck down by the court as being unconstitutional. You see, there are limits to what Congress can do.

In order to survive the challenges to the Social Security Act (originally envisioned as an insurance program), FDR had to remove the "insurance" language because the republicans argued (successfully in the case of the Railroad Retirement Act) that congress had no such authority.

That's why the payroll taxes collected from Social Security go to general operating fund. The congress has the authority to tax and to spend, but perhaps not to establish an insurance program, private accounts with banking-industry administration, or any other such schemes.

If Bush's proposal (which still lacks detail) contains these elements, a challenge to it's constitutionality may help preserve traditional Social Security.

[ChairOne]

7. REALLY? Congress can only pass laws that are Constitutional?

Wow. Thanks for the heads up. And for reading my post so closely.

[Toucano]

8. I'm sorry. Did I misunderstand you?

"The constitution gives Congress the right to pass laws. This would be a law. What's the problem?"

Did you intend to say something different? Sorry for the confusion.

[ChairOne]

11. Ah. Selective reader. Gotcha. sorry for the confusion /eom

[Toucano]

13. I'm perfectly happy to have you elaborate on your meaning.

In fact, I would encourage it.;)

[ChairOne]

15. It was in my first post.....

You originally said:

"But the scheme to establish a private accounts with the financial industry isn't a power vested by the constitution."

I say: so what? Neither does the constitution expressly allow the goverment to regulate PCB levels. But somehow the government does anyhow (well, more or less at any rate).

Just because the Constitution doesn't have a sentence literally saying something is allowed doesn't mean that that this is NOT allowed. But the lack of such a statement in the Constitution is the only reason your OP gave for thinking privatization would be unconstitutional. That's a weak reason, IMO - do you have any others? As I mentioned, not even someone like Scalia would conclude as you appear to have.

Words like "constructionist", "interpretationist', and the like are good google words here...

[Toucano]

18. Do you have to be so nasty?

Why do so many come here looking for a fight instead of a discussion?

First of all, I haven't concluded anything. I've sought input on a idea. That's supposed to be the nature of a discussion forum.

Secondly, I never said it needed to be literally expressed. I'm suggesting that it's neither literally expressed nor derived from an implied power. Since the constitution enumerates the powers and limits of the congress, the authority to do anything - including regulating toxins - is either derived from or prohibited by those powers and limits.

Just because the wack jobs argue that the Department of Education, the EPA, and the United Nations are unconstitutional doesn't make it so. Their argument doesn't automatically win.

Social Security, as it now operates, has survived court challenges and is obviously constitutional.

I have suggested that perhaps the United States doesn't have the authority to require or coerce citizens to give their money to for-profit corporations under the guise of saving social security, or the "general welfare" clause even if the program is "optional". That comes from a very different place than collecting taxes and disbursing funds.

I'm sure you'll correct me if I'm wrong, but you seem to be under the misconception that any challenge to the government's authority is "Scalian" and strict-constructionist in nature, and that's not so.

They've been trying to destroy social security for 70 years and the idea that their latest attempt could be destroyed by their original arguments against the program is worthy of exploration.

Thanks for the clarification, btw.

[ChairOne]

26. You gave exactly zero reason to think SS privatization.....

... was unconstitutional.

Correction - you gave epsilonishly small reason to believe such. That small reason is that the Constitution doesn't say, in exactly these words, "that Congress shall have the power to privatize Social Security".

I pointed out that you gave no reason other than that.

I wondered if you had any more reason to suspect unconstitutionality than that.

I guess you do *not* have reason beyond that. (Else please tell me what that reason for suspicion is - and recall it can't be the above.)

[shance]

29. He's mad because you trumped him Toucano.

Terrific thread by the way. So much I don't know about the legalities and illegalities of our Constitution and our Congress!!

[ChairOne]

32. Nah. just get sick of tinfoilhatters making Dems look worse...

... than they already do with the current bumper crop of Demo-wussies.

Nice strong, rational *and* liberal Democrats - that's what I'm after... Not just the liberal part...

It's unconstitutional! It's unconstitutional! The sky is falling!

Sheesh.

Just one bonafide good reason. That's all I want.

[shance]

33. It was given to you on a silver platter.

Maybe you oughta sit down "chair" and read what they're saying.

On top of that, you may want to read up on a little history about Social Security. Or do you already have that down pat?

[ChairOne]

35. No it wasn't. As many of the other 1st-level subthreads here notice...

Nothing has been offered to justify suspicion other than the fact that the Constitution does not contain the sequence of words "Congress shall have the authority to privatize Social Security".

That's the only reason that's been given. I think it's an awful reason. I'd love another, if you have one handy, "shance". LOL - the insult-attempts one finds around here...

[shance]

39. You're right. Our forefather's didn't get the paint by numbers edition

of Social Security to add to the Constitution.

You just want to argue for the sake of arguing.

What a waste.

[ChairOne]

42. LOL - Not my fault zero reason was given......

.... and we haven't even touched on the issue of there being nothing in existence to be (un)constitutional yet - gdub hasn't given us a plan yet.

And yet still folks wanna claim that "it" is unconstitutional? lol - "it" doesn't even exist yet - sheesh.

I just wanted a reason - a genuine substantial bonafide reason - to think that privatization of SS is unconstitutional. lol - guess I'm in the wrong place for such things... It's all good...

[shance]

44. LOL!** Im glad you like to giggle and write redundant answers instead of

looking for actual solutions, but really, please go to the lounge and giggle there.

[qwghlmian]

21. Why don't you read the Amendments

Tenth:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

========================

This clearly says that if it is NOT explicitly written in the Constitution that the federal government has the power to do something, then the federal government does NOT have that power. The fact that this amendment has been repeatedly violated and ignored does not mean it does not exist.

[ChairOne]

24. lol - good one! /eom

[Bake]

27. But the govt. can do a lot of specific things not enumerated.

They do it under the aegis of one of the enumerated powers - such as the constitutional power to regulate interstate commerce.

If SS is constitutional, which it clearly is, HOW the govt. implements it is also likely constitutional. But I'm open to discussion about it.

Bake, Esq.

[qwghlmian]

28. What the federal government did was

hijack the powers, ignore the 10th amendment, and justify it by referring to the vague "general welfare" and "interstate commerce" clauses. If you see the contortions through which the Supreme court has gone in order to fit things to fit "general welfare" and "interstate commerce" clauses, you will see what I mean.

No, SS is not constitutional, if you take the Constitution seriously. Neither are the changes to SS that are being proposed. That doesn't matter, since the Constitution has long been ignored when it comes to powers of the federal government.

[ChairOne]

30. LOL - if "that doesn't matter", then why did you tell me to read it?

lol - sigh - so many tinfoilhatters, so few tinfoilhats.....

[Toucano]

37. That's true.

But I think the "How" could be unconstitutional.

For example, if congress passed a law requiring every citizen to buy treasury bills equal to 5% of their income, it would likely be exceeding it's authority, and violating an individual's right to self-determination.

Likewise, if they passed a law that required people to send 5% of their income to a Wall Street broker for investment, it might be hard to justify that within it's powers.

Even if these are "optional", if they would result in the individual being placed in a worse position if the opt out, it could be argued that people are being coerced to participate.

I think the rub lies in the fact that congress can only levee taxes and impose duties - it has no authority to force people to give their money to any non-government institution.

That's why FDR was forced to remove the language the made social security an insurance program, and instead, the tax (often called a "contribution") ends up in the general fund.

Now if congress were to decide to put some of the governments money, let's say an amount equal to the social security money that's collected each year, into investment funds, I think they would have the power to make that decision - once the money is the governments.

What are your thoughts about that?

[Yupster]

43. The Tenth Amendment hasn't existed

for generations.

It's just ignored.

On edit -- I heard a lawyer argue that the phrase "the people" in the Tenth Amendment should be interpreted to mean the people's representatives, which means the congress.

That got me spitting up my cheerios in laughter, because then the amendment which was designed to limit the powers of the congress is being used to broaden the powers of the congress.

I thought, well there's a lawyer who can spin an argument.

He's right though. The Tenth Amendment is meaningless today. Congress can pretty much find a way to get into anything they want to. Usually they use the Interstate Commerce Clause, and it doesn't even matter if the issue involves commerce, or is even interstate.

[WillowTree]

38. Self delete.

[Toucano]

40. There isn't one.

That's why FDR changed the language of the Social Security Act to get around that.

Social security doesn't operate as an insurance plan, although as originally introduced, it was.

It operates as a tax and spend plan. That's what's so interesting about the Republicans trying to make it into something they originally argued was unconstitutional.

[Nothing Without Hope]

5. Congress giving him their constitutional power to declare war

was OBVIOUSLY unconstitutional, but no serious challenge is in the works as far as I know. And even if it came to the Supreme Court, with one more appointment he will have a majority to remake all the laws he wishes.

The blivet** administration regards the Constitution much as Gonzales regards the Geneva Conventions -- quaint and utterly ignorable when convenient. And so far, both have had their views supported.

[Sgent]

9. Social Security

has never had its constitutionality challenged. Most legal analysis I've seen have said in a "pure" world, it would not be constitutional. The reality is that I would NOT go down this path.

[Toucano]

14. Sure it has.

Helvering v. Davis case. On November 12, 1936, George Davis, a stockholder of Edison Electric Illuminating Company of Boston, sued, alleging that the Social Security tax was unconstitutional, and asking that the company be kept from paying it. The U.S. District Court for the District of Massachusetts upheld the tax, but the Circuit Court of Appeals reversed it. IRS Commissioner Guy Helvering asked that the case go to the Supreme Court.

It was 7-2 in favor of Social Security.

http://www.ssa.gov/history/supreme1.html

[qwghlmian]

34. That's true - but it is also

true of most previous administrations and Supreme Courts in the last hundred years at least. They all treat the Constitution as something to be relied upon when it fits, and to be ignored or perverted when it contradicts their goals.

[qwghlmian]

10. Lots of things federal government does are not

enumerated in the Constitution, and thus are unconstitutional. Example: US Dept. of Education.

If you argue that all these things that the federal government does that are not explicitly mentioned in the Constitution are, in fact, ok because of the "general welfare" clause, then surely anything can be said to be promoting "general welfare" - including private accounts - thus invalidating the whole "unconstitutional" argument.

[Toucano]

12. I see where you're going and I agree

except wouldn't it require proving that private accounts promote the general welfare? I'm not so sure it can be automatically assumed that they do. Especially when the cost for administration is factored in.

It's kind of obvious that collecting a tax and disbursing a check promotes the general welfare by helping people directly.

Perhaps the interstate commerce power comes into play with private accounts.

It's hard to say without a detailed plan, but I think there's merit to using something from their playbook against them.

The Department of Education derives authority from the general welfare clause, as you cite, but also from the authority of congress to "promote the progress of science and the useful arts..."

[qwghlmian]

19. "promote the general welfare" is such

an ambiguous, nebulous, and all-encompassing clause that, once you start using it, anything and everything can be justified using it. You say "prove that private accounts promote the general welfare"? Well, why not prove that any and every one of these federal departments:

Department of Agriculture
Department of Education
Department of Energy
Department of Health and Human Services
Department of Housing and Urban Development
Department of Labor
Department of the Interior
Department of Transportation

promotes "general welfare"? How do you define "general welfare"? Why do you think these promote "general welfare" but the SS private accounts would not?

I think the "general welfare" is a copout that was used to allow the government to do anything it damn well wants to do. Once that precedent was established, the government now can do anything it damn well wishes to do.

[Toucano]

22. I understand

But not all those agencies derive their power from the general welfare clause.

At least Transportation, Energy, and Agriculture can be derived from the powers to regulate interstate commerce.

Interior and Transportation also have established links to the "provide for the common defense" clause. That's how the interstate highway system got built. In the era of high tech military needs, the Department of Education could also be argued as supporting the common defense.

I'd suggest that private accounts fail to promote the general welfare because they require citizens to submit a portion of the money to pay for administration costs to private, for-profit businesses. That's not in an individual's best interest to pay, for example, 1% in fees on a 3% return. Of course, there's also the element of risk that's introduced.

[qwghlmian]

23. First of all, changing one nebulous justification

("general welfare") for another one ("interstate commerce") does not do anything to really justify those departments.

Second - the new Social Security law has not been presented yet. All we have to go by are suggestions and rumors. I am pretty sure, for example, that in the final version of it individuals will be allowed to buy inflation-protected US Treasury bonds, which would exactly duplicate Social Security trust fund investment strategy. Thus, an individual could exactly duplicate the "general" Social Security returns in his private account if he/she wished. Thus, any argument about the "risks" would fall flat - the risk would be exactly the same as the old Social Security risk on such an investment.

[Toucano]

25. A lot will depend on the final language and details, for sure.

The power to regulate interstate commerce, however, is quite specific. I don't think there's anything vague about that. It may be outdated since modern transportation makes just about everything a matter of interstate commerce, but I don't agree that it's vague.

The general welfare clause is nebulous for sure, though.

[Spacejet]

16. "what part of the Constitution is that power derived"

Errr basic constitutional law will answer this question for you. This is an argument that failed 100+ years ago.

For example, the constitution doesn't explicitly say the government can mandate consumer electronics not disrupt public radio. However, it is an assumed power.

There would be nothing unconstitutional if congress entirely abolished social security. The only way to make it unconstitutional would be to amend the constitution to make it unconstitutional.

[Toucano]

20. You're right, of course.

Radio waves cross state lines, so the authority to regulate consumer electronics is derived from the power to regulate interstate commerce.

Congress certainly could abolish social security, but that would be political suicide, and they won't. But they're not above mortally wounding it so it collapses and people decide it doesn't work. That's the tactic they're using.

[shance]

31. Exactly Toucano.

Same thing they are doing (in effect*) to Roe vs Wade. To render it obsolete is their goal.

[Toucano]

36. Thank you.

Of course, it's nice to have a conversation about something other than Gannon! Not that it's not important...just burning us out, I think.

I appreciate your participation.

[shance]

41. You've provided some new thought to the SS issue that is very important

Toucano.

Thank you as well.

:)

[Cleita]

17. Unlike other, more enlightened countries, our constitution

doesn't address the rights of the ordinary citizen for access to health care and the necessities of life like shelter, heating and food, which SS and Medicare covers for the elderly. I would like to see those guarantees extended to all citizens depending on their needs.

Those countries have those things stated in their constitutions as human rights. It is the duty of their governments to honor those constitutional rights by making sure that they do what is needed to provide these human rights for the less fortunate. In order to make tax money reach these needs, those countries spend less on unnecessary military and pork than ours does.