Who Must Have an SSN?

The answer may shock you!

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      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
     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
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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