Who Must Have an SSN?
The answer may shock you!
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IS A CITIZEN REQUIRED BY LAW TO HAVE A SOCIAL SECURITY
Today, everyday, Americans are constantly confronted
with greater and more frequent requests from all too many
sources that they provide their Social Security number.
Private parties of all kinds deem it essential to obtain the
SSN of everyone with whom they may conduct any business.
Does the law demand that everybody apply for and obtain a
SSN, or is this simply a purported obligation?
The first inquiry regarding the legal duty to apply for
and obtain a SSN must involve an examination of the US.
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 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 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 US.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, 94 U.S 670 (1878), a penal
statute remotely related to bankruptcy laws was held
inapplicable in the States. In Patterson v. Kentucky, 97
US. 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 Ex parte Burrus, 136 U.S. 586, 10S.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. Wlalace, 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 Motorcycle 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 statutorily 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 objections from the States. 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 US. 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 decision as well as
others, do place severe restraints upon the powers of
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
held in Railroad Retirement Board, supra, that congress had
no authority to establish a retirement scheme through its
most tremendous power, its control over interstate commerce.
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
fo the caliber which had been struck as unconstitutional in
the same year?
In the Social Security Act, 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
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. 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 raised: neither of them addressed the issue of
whether there was a requirement for any 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 address this issue, and it appears
that no cases have as yet dealt with it. 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 day act is codified at 42 U.S.C., sections
301-433. If there were a requirement that every American
join the Social Security scheme, 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
anyone join Social Security. The closest section of the act
which might relate to this point is the requirement of 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.
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., section 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
"(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 to the child at the
The purported duty to apply for and obtain a Social Security
number therefore boils down to this: you get it if you
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 section 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
"(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."
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.
What should the American people do who are opposed to Social
Security for whatever reason, be it the contention that is
the prelude to the "Beast's number" or any other? They
should constantly inform those requesting the number that
there is no obligation to have one.
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