Friday, December 18, 2009

Born Into Slavery 1 of 4

by FranG

Disclaimer: FranG is a bona fide paranoid schizophrenic, and strict reliance upon his words may cause mental, and even physical injury. Reader discretion is strongly advised.


INTRODUCTION

Americans may have many things in common, but there may be no greater common denominator among them then the Social Security Number (SSN). The overwhelming majority of citizens in each of the fifty states partake in this government ran insurance program. Back in 1935, when the Social Security Act was passed as a part of President Roosevelt’s New Deal legislation, Americans were told to lend their trust to the federal government, that it may lead the country out of the depression. One such measure, the aforementioned federal Social Security Act, was to provide economic stability to the disabled, unemployed, and retired citizens of the nation. This would be achieved by taxing directly the wages of working Americans, and placing these into a Social Security pot (42 U.S.C. 401 (a), 42 U.S.C. 401 (b)), from which citizen enrollees could draw upon their share of the entitlement benefits upon meeting certain eligibility requirements.

This doesn’t seem so bad, right? After all, we would hope that Americans have the right to trust their government for their general welfare. And so it was that Social Security was embraced with open arms, and now over 70 years later, it is an integral part of every American’s life. In fact, it is the quintessential glue that holds together the fabric that is American society. The number is recognized by every state, and is even used by them as an interfacing mechanism with their citizens. It serves as a de facto identity number, and is used in most government and commercial transactions as proof positive that a person is who he purports himself to be. As far as private information for public use is concerned, the SSN is the most sensitive of information, and is at the center of identity theft concerns.

So without question, the SSN is of extreme importance. But though it certainly has its benefits, is Social Security worth the cost? I don’t believe many Americans have really considered this question for a variety of reasons. In fact, I would go so far as to say that many Americans would be of the opinion that their SSN is invaluable, and that they cannot live without it; and such a conviction would actually be not too far from the truth. Most Americans were with a number, and enrolled in Social Security before they reached the age of majority; and many were with numbers before they reached the first anniversary of their birth dates. As such, it has been with them through every stage of their growth and development into they reached the juncture of becoming full-fledged citizens. Likely people, who do not have memorized their driver’s license and state id numbers, can recall with relative ease their SSN. It is very hard emotionally to shrug off that which has been a part of you for your entire life, but nevertheless could one physically rid himself of this number if he so desired?

FEDERAL JURISDICTION OVER WHOMEVER HAS A SSN

The federal government can control what it creates, and Social Security is one of its creations. As such, all the associated rules and regulations associated with it are created by the federal government. With these rules, the government then grants the states permission to use the SSN’s of its citizens in their administrative functions.

“It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the Commissioner of Social Security for the purpose of establishing the identification of individuals affected by such law.” (42 U.S.C. 405 (c)(2)(C)(i))

As you can see, the federal government has no quarrels with states using the SSN for just about any purpose, even those seemingly unrelated to Social Security. The fact that the SSN can be a functional tool for identity purposes is seen as merely one of its ancillary benefits to be exploited. This I guess is an okay practice for matters concerning the federal government, but the states are not Constitutionally required to engage in such practices. Though the states are free to devise their own system for identifying and keeping track of their citizens, such as a state identification card or driver’s license (more on this later), it yet seems that they have all jumped onboard the federal SSN bandwagon.

ENROLLMENT IN SOCIAL SECURITY IS VOLUNTARY

The federal Social Security program is not mandatory for American citizens to partake in. Social Security is funded via a payroll tax on the earned “wages” of every citizen. The Internal Revenue Code (IRC) states:

“In addition to other taxes, there is hereby imposed on the income of every individual a tax equal to the following percentages of the wages (as defined in section 3121 (a)) received by him with respect to employment (as defined in section 3121 (b))…” (26 U.S.C. 3101)

Though the language doesn’t suggest it, “every individual” citizen of the United States is not responsible for this payroll tax if not a participant in Social Security. Lack of participation in the plan would mean that an individual does not have a SSN, and without a SSN, the Social Security Administration (SSA) would be unable to keep accurate wage records for said individual, and thus would not be able to authorize the disbursements of benefits to such person. This is only logical, for if one does not pay into, then he should not be able to withdraw from the Social Security pot.

“On the basis of information obtained by or submitted to the Commissioner of Social Security, and after such verification thereof as the Commissioner deems necessary, the Commissioner of Social Security shall establish and maintain records of the amounts of wages paid to, and the amounts of self-employment income derived by, each individual and of the periods in which such wages were paid and such income was derived…” (42 U.S.C. 405 (c)(2)(A))

“In carrying out the Commissioner’s duties under subparagraph (A) and subparagraph (F), the Commissioner of Social Security shall take affirmative measures to assure that social security account numbers will, to the maximum extent practicable, be assigned to all members of appropriate groups or categories of individuals by assigning such numbers (or ascertaining that such numbers have already been assigned) … to any individual who is an applicant for or recipient of benefits under any program financed in whole or in part from Federal funds including any child on whose behalf such benefits are claimed by another person…” (42 U.S.C. 405 (c)(2)(B)(i))

Here is the SSA’s PR spin on FICA; i.e., payroll taxes:

“The payroll taxes collected for Social Security are of course taxes, but they can also be described as contributions to the social insurance system that is Social Security. Hence the name "Federal Insurance Contributions Act.” (SSA website)

The Internal Revenue Service (IRS) needs the SSN in order to tax you:

“The social security account number issued to an individual for purposes of section 205(c)(2)(A) of the Social Security Act shall, except as shall otherwise be specified under regulations of the Secretary, be used as the identifying number for such individual for purposes of this title.” (26 U.S.C. 6109 (d))

Upon further digging into the Social Security legislation, one begins to encounter ambiguous language which, upon first glance, seems to contradict the spirit of the United States Constitution. In particular, overlaying language is used when defining key terms in the legislation, which culminates with equivocal language being used to define the terms “State,” and the “United States.”

As pertaining to the benefits side; i.e., outflows from the Social Security trust, we have:

“The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.” (42 U.S.C. 410 (h))

“The term “United States” when used in a geographical sense means the States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.” (42 U.S.C. 410 (i))

“The terms “includes” and “including” when used in a definition contained in this chapter shall not be deemed to exclude other things otherwise within the meaning of the term defined.” (42 U.S.C. 1301 (b))

As pertaining to the payments side; i.e., inflows into the Social Security trust, we have:

“The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.” (26 U.S.C. 3121 (e)(1))

“The term “United States” when used in a geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa. An individual who is a citizen of the Commonwealth of Puerto Rico (but not otherwise a citizen of the United States) shall be considered, for purposes of this section, as a citizen of the United States.” (26 U.S.C. 3121 (e)(2))

“The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.” (26 U.S.C. 7701 (c))

A glaring admission should be noted with the definition of “United States” in the IRC: it refers to the Commonwealth of Puerto Rico as having citizens which may, or may not be United States citizens. If this is true, then this begs the question of who is the target audience for this Social Security legislation. Puerto Rico is a territory of the United States, and as such falls under a different jurisdiction umbrella than a state of the United States that is a party to the United States Constitution. Legislation for the former is governed with no inhibiting restrictions, whereas for the latter the United States Constitution serves as a constraint on the free legislative will of the Congress of the United States. Because the two are governed by a different set of circumstances, legislation written which affects them both may not be applicable for the one subject to a more limited jurisdiction. Such legislation would be an encroachment on the juristic constraints for which it is subject. In other words, Congress cannot legislate for the fifty states according to political expedience because of the constraints of the U.S. Constitution.

However one should not stop here. Though the language is vague and evasive, further digging is warranted to try to interpret the legislative attempt of Congress. A journey to the section of the U.S. Code dealing with the States, we find the following in Section 101:

“Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: “I, A B, do solemnly swear that I will support the Constitution of the United States.” (4 U.S.C. 101)

Here there is no definition for state, so one is left to assume that the term “state” by default means the fifty states, unless otherwise defined. This is a fair assumption, given that the U.S. Constitution fits perfectly within the context of this section. Progressing further into the title, one comes across two instances where the term “state” is defined. The first is concerned with state taxation within federal enclaves on its territory, and the other is concerned with crime prevention efforts. As pertaining to the former:

“The term “State” includes any Territory or possession of the United States.” (4 U.S.C. 110 (d))

“The term “Federal area” means any lands or premises held or acquired by or for the use of the United States or any department, establishment, or agency, of the United States; and any Federal area, or any part thereof, which is located within the exterior boundaries of any State, shall be deemed to be a Federal area located within such State.” (4 U.S.C. 110 (e))

Here it can be seen that the definition of “state” is apparently expanded, as was the case seen earlier in the legislation dealing with the taxation for, and claims against Social Security. So Congress once again is commingling the heterogeneous jurisdictions of the states and the United States territories. But despite this fact, the above definition is problematic when placed in the context of the definition for “federal area.” If a state “includes a territory or possession of the United States,” then is a “federal area” also a “territory or possession of the United States?” The concept of taxation within a federal area would seem more logical given that the states of the union have jurisdiction to tax and regulate within its borders, but the concept seems oxymoronic as concerning a territory, and even more so within the context of a mere possession of the United States. This is the equivalent of taking money from the right pocket and placing it in the left.

Moseying further along in the Title of the U.S. Code dealing with the “States,” one comes across the following concerning matters of crime prevention:

“The consent of Congress is hereby given to any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts. For the purpose of this section, the term “States” means the several States and Alaska, Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and the District of Columbia.” (4 U.S.C. 112)

In this definition, there is a noticeable contrast with the previous definition. First, Congress is granting authorization to the states to cooperate with each other in crime prevention tactics. But Congress does not have jurisdiction in this area, unless the argument would be somehow that crime prevention efforts between states falls under the ‘Commerce Clause’ of the U.S. Constitutional (U.S. Const. Art. I, Sec. 8, Cl. 3). So this granted authority is clearly meaningless, or rather redundant in the sense that it is a non-authoritative decree.

Second, and more important, the definition for state: 1) does not use the word “includes,” and 2) uses the term “several States” to describe the states of the United States subject to the U.S. Constitution; unlike the previous definition which includes the territories in the definition of state. With this current definition, we have neither any vague and equivocal language, nor do we have any commingling of potentially non-viable juristic matters as pertaining to both the states and the territories jointly. The “several States” is also how the U.S. Constitution refers to the fifty states that are its signatories.

To further reinforce the notion of jurisdiction, let us focus our attention on what shall be the final authority on this matter; to wit, the very first title of the U.S. Code, which pertains the general provisions for the entire Code. Section 203 speaks of a District of Columbia Code which is to be “similar in style, respectively, to the Code of Laws of the United States,” except that the legislation is exclusively for the District of Columbia (1 U.S.C. 203). Given that the District of Columbia has its very own code of laws, there is absolutely no reason whatsoever that it should appear in the U.S. Code as befitting the definition of a state. If it is to appear at all, it seems appropriate that it should be in the capacity of a foreign state only; given that it is subject to different juristic rules than the fifty states. But not only this, all laws affecting the District of Columbia should be placed in its D.C. Code, and to intermix the District of Columbia with the common perception of the essence of what is a state in the U.S. Code, creates only redundancy and confusion.

Section 204 speaks in general about the U.S. Code. Specifically, it states:
“The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.” (1 U.S.C. 204 (a))

In the context of courts throughout the land, we see use of the term “several States” to distinguish their courts from those of the territories. Again, here there is unequivocal language of what exactly a state is, and also no ambiguous jurisdiction issues are seen here, as the intent of the passage is clear and concise. The text also mentions positive law as being legal evidence of law, and titles of the U.S. Code that have not yet been enacted into positive law are only prima facie evidence of the laws of the United States. It is very important to note that neither Title 26 nor Title 42 of the U.S. Code have yet been enacted into positive law. The list containing the titles of the Code which have been enacted into positive law is as follows:

“NOTE: Of the 50 titles, only 23 have been enacted into positive (statutory) law. These titles are 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49. When a title of the Code was enacted into positive law, the text of the title became legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern.” (GPOAccess)

Putting this all in an overall context befitting for the entire U.S. Code, I can only conclude that the definition for a state by default in the U.S. Code is the fifty states, or the “several States,” as this is the most logical given that: 1) the Constitution explicitly refers to the States as the “several States,” and every other region as either a Territory or possession, 2) The District of Columbia, being the seat of government (4 U.S.C. 71), has its own code of laws; to wit, the District of Columbia Code, 3) and the Territories and Insular Possessions of the United States have their own section of the United States Code, that being Title 48. As for when a section of the code feels compelled to define the term “state,” then unless vociferous identifying language, such as the “several States” or the “fifty States” (42 U.S.C. 402 (i)) is used, then the fifty states are not subject to the legislation, but only the entities explicitly named in the definition, and their subjugation to such legislation is totally voluntary. Such is the case with Social Security.

Continue to Part 2

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