Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Is Social Security unconstitutional?

September 27, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or right it protects.  Today’s topic: the constitutionality of Social Security pensions.

The statement at issue:

"I don’t think our founding fathers when they were putting the term ‘general welfare’ in there were thinking about a federally operated program of pensions…. What they clearly said was that those were issues that the states need to address.  Not the federal government....  I stand very clear on that.”
--Texas Governor Rick Perry, in an interview re-published August 12 on Newsweek magazine’s “Daily Beast” website.  The interview occurred in the fall of 2010, but is being widely re-circulated in the wake of Gov. Perry’s entry into the Republican presidential nomination campaign.  Social Security’s fate is now a prominent issue in that campaign.

We checked the Constitution, and…

Signing of the Social Security Act, 1935 (Wikimedia Commons)

Gov. Perry’s view is in direct disagreement with a May 1937 decision of the U.S. Supreme Court, in the case of Helvering v. Davis.  That 7-2 decision upheld the constitutionality of the Social Security Act of 1935, and its creation of pension benefits for the elderly. The Court interpreted the “general welfare” clause of Article I as broad enough to encompass federally provided retirement benefits.  It also rejected a claim that the Social Security Act violated the Tenth Amendment, which protects state powers.

If one accepts that the Supreme Court has the final word on constitutional interpretation, the issue is settled.  But Gov. Perry, and others who share his view, appear to be encouraging a new review of the constitutional issue, or at least an open conversation about it.

Teacher's corner

Join the deliberation. Here is a lesson plan, from the National Endowment for the Humanities, that provides structure for a historical debate over the Social Security Act. Consider the following question during your investigation: Do the arguments made in the 1930s stand true today?

There are, of course, three ways to undo Social Security.  One would be for Congress to repeal it.  With the U.S. Treasury sending out more than 36.5 million Social Security checks to the aged each month, the benefit has a very broad political constituency behind it.  Social Security is often called the “third rail in American politics” -- that is, it is dangerous to touch Social Security.

Another way would be to file a new lawsuit in hopes of getting a different outcome than the Court handed down 74 years ago.  Even if a lower court judge were sympathetic to that idea, that judge could do nothing to bring it about: The Supreme Court has made very clear that lower courts are to follow its constitutional rulings and apply them faithfully, until the Court – and only the Court – changes its mind (or the Constitution is amended).

The Court, if such a case were filed, would then face a core question: whether to be guided by its precedent (applying the principle known as stare decisis), or whether to reconsider Helvering v. Davis, perhaps based on a new view that, indeed, the Tenth Amendment gives only the states the constitutional authority to provide social benefits to their citizens, and a view that the clause giving Congress the authority to pass laws to promote “the general welfare” should be read more narrowly.

The Court does not routinely overrule its precedents, but has often said that it is more willing to reconsider a constitutional decision than one interpreting only a statute, because the process of amending the Constitution is so difficult to use.

The third option would be to pass a constitutional amendment, to make clear that pensions for the elderly is an issue reserved to the states, and thus is beyond the power of the federal government – Gov. Perry’s argument.

A constitutional amendment must obtain two-thirds majority support in each house of Congress, and the approval of three-fourths of the states.  That process would be very difficult to employ to undo Social Security, given its political popularity.

In short, it would seem, the end of Social Security is not imminent, though the political conversation about it no doubt will go on.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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