By Darren Smith, Weekend Contributor

Congress is drafting legislation to deny Social Security benefits to those accused of participating in persecutions of others by the Nazis. HR 5706 directs the Justice Department to provide names of individuals suspected as such to the Social Security Administration which would then terminate all social benefits to these individuals. This could occur despite payments by these individuals into the social security system and who are presently receiving such benefits.

The Bill, titled the “Nazi Social Security Benefits Termination Act of 2014,” came into being after the Associated Press reported that millions of dollars in benefits have been provided to those beneficiaries, many of whom the AP claims received the promise of social benefits on the condition they removed themselves from the United States. The Justice Department disputes this claim.

While there is no question that those who participated in genocides should be held accountable for their actions, the steps Congress is taking has substantial long term risks to due process rights, entitlements, and using retirement benefits as a form of collective punishment to individuals deemed undesirable by the U.S. Government.

Representative Carolyn Maloney who co-wrote HB 5706 stated: “The American taxpayer should not be subsidizing the retirements of those guilty of the worst atrocities in human history.”

Representative Leonard Lance said Congress “must close this loophole and right this wrong in the name of the lives that were lost. To think Nazis are living off the tax funds of the children of liberators is sickening and morally wrong.”

A bipartisan group hopes to present the bill for President Obama’s signature before the seating of the new Congress.

Deutsche Welle reported the following:

“The proposed measure follows an exclusive report by the Associated Press news agency that found that dozens of elderly suspected war criminals were collecting pension benefits earned when the individuals paid into the government’s retirement program while working in the United States.

According to the AP investigation, the recipients lied about their wartime activities to enter the US following World War II, and the Justice Department – after having found this out – used a loophole to persuade Nazi suspects to leave the in exchange for Social Security benefits.

If they agreed to go voluntarily, or simply fled the country before being deported, they could keep their Social Security benefits. The Justice Department denied using Social Security payments as an incentive to get former Nazis to leave the country.”

Within the text of the bill—a copy of which may be read HERE—several concerning clauses read:

SEC. 3. DENIAL OF FEDERAL PUBLIC BENEFITS TO NAZI PERSECUTORS.

(a) In General- The following paragraphs shall apply notwithstanding any other provision of law:

(1) SOCIAL SECURITY BENEFITS- A participant in Nazi persecution is not eligible for any benefit under sections 202 or 223 of the Social Security Act (42 U.S.C. 402; 423).

(2) SUPPLEMENTAL SECURITY INCOME BENEFITS- A participant in Nazi persecution is not eligible for any benefit under title XVI of the Social Security Act (42 U.S.C. 1381 et seq.), including any supplemental payment pursuant to an agreement for Federal administration under section 1616(a) of such Act (42 U.S.C. 1382e) and any payment pursuant to an agreement entered into under section 212 of Public Law 93-66.

…

(c) Notification of Disqualification- As soon as practicable after the Attorney General determines that an individual is a participant in Nazi persecution, the Attorney General shall notify the Commissioner of Social Security of the identity and residence of such individual.

(d) Effective Date- This section shall apply with respect to benefits for months beginning after the date of the enactment of this Act.

While there is certainly no question in the minds of most the barbarism and inhumanity prosecuted by the Nazis and their agents were one of the most horrific of the twentieth century, it is important to recognize that the ramifications of this bill could set a precedent for which the government could become accustomed to declaring other groups it deems to be subversive, or even simply out of favor, to be stripped of government entitlements despite decades of assurances to individuals they would be provided for when in need.

Congress certainly has been listening to many who demand that certain groups perceived to be undeserving of benefits can have these revoked as a form of control or punishment for behaviors. A well-known example of this has been the perennial drive in various jurisdictions within the states demanding the revocation of welfare benefits to those who participate in illicit drug use or commit crimes. In this example the pariah group is drug users, who may even receive no due process by having benefits cut due to failure of a drug test. The punishment is held to be the government benefit removal. In one respect the group receiving welfare benefits generally becomes the pariah group or at least one that can be marginalized easier by politicians due to the public’s sometimes low regard for these individuals. Yet, because they are of that pariah group, few others are likely to come to their defense or in fact the defense of the system that is being corrupted.

Returning to this act, we have similarities. A pariah group, perhaps justifiably labeled such, receives the focus of Congress who then turns to collective punishment to deny a public benefit, a retirement benefit mostly, due to membership in this class alone, and with absolute punishment without any degree of mitigating circumstance or ability to contest such an action against their benefits.

The United States has numerous historical examples of collective punishment of groups deemed pariah. It has become rather common among the population, and Members of Congress consequently, to demand the retirement benefits of an individual be revoked despite decades of contributions toward a retirement plan–all because an action is declared to be wrong. In fact, prior to labor laws enacted to prohibit such practices, it was not uncommon for employers to craft punishments against employees who are months away from a company pension to deny those benefits to workers because they had not arrived at the minimum year requirement to earn a pension. Even within the comments of this blog we have seen various examples of persons demanding pension denials.

If Congress is permitted to use Social Security benefits as a means of forcing control or as a punishment tool it is surely contrary to what the intention of the Social Security Act encompassed. Furthermore, what would stop Congress, if permitted the ability to go against other groups, such as immigrants, dissenters, or criminal who are out of favor. Additionally, the Social Security system’s reputation or goodwill can be greatly diminished if participants worry their benefits will be pulled out from under them by any arbitrary decision of the government.

Constitutionally, there are several problems that could face this bill should it become law.

Article 1 Section 9 of the United States Constitution prohibits Congress from enacting Bills of Attainder. The Nazi Social Security Benefits Termination Act could be declared a bill of attainder for several reasons.

One could cite United States v. Lovett 328 U.S. 303 as being almost parallel to the circumstances that lead to the drafting of this bill.

In 1943 Chairman of the House Un-American Activities Committee Martin Dies on the floor of the house declared thirty nine unspecified U.S. Government employees to be involved in “subversive” activities. The House considered an amendment to defund the salaries of to be identified employees. It later identified three individual persons who the House judged to be guilty of subversion. After several procedures the amendment was attached to another bill that was ultimately signed by President Roosevelt. The law mandated that these three men would not receive a government salary after November 15, 1943. (Coincidentally seventy one years to the day of this article.)

To be brief, the syllabus of Lovett puts the issue of attainder into the forefront. Referring to the subject law, the justices brought us:

1(a) It is not a mere appropriation measure over which Congress has complete control. P. 328 U. S. 313.

(b) Its purpose was not merely to cut off the employees’ compensation through regular disbursing channels, but permanently to bar them from government service, except as jurors or soldiers — because of what Congress thought of their political beliefs. P. 328 U. S. 313.

(c) The Constitution did not contemplate that congressional action aimed at three individuals, which stigmatized their reputations and seriously impaired their chances to earn a living, could never be challenged in court. P. 328 U. S. 314.

2. Section 304 violates Article I, § 3, cl. 9 of the Constitution, which forbids the enactment of any bill of attainder or ex post facto law. P. 328 U. S. 315.

(a) Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 328 U. S. 315.

(b) Section 304 clearly accomplishes the punishment of named individuals without a judicial trial. P. 328 U. S. 316.

Page 328 U. S. 304

(c) The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found by Congress to be guilty of disloyalty make it no less effective than if it had been done by an Act which designated the conduct as criminal. P. 328 U. S. 316.

Returning to the Nazi Social Security Benefits Termination Act, there are clear similarities. The subject group, alleged Nazis, is clearly identifiable as such and comprises a small group of individuals, reportedly to be several dozen, among the scores of millions of Social Security beneficiaries at large.

Congress is surely applying punishment without trial in that the Justice Department only needs to declare a finding, not even probable cause, directed to the Social Security Administration declaring unilaterally and without trial or due process an individual had participated in persecutions as a member of the Nazi Party and therefore is ineligible for Social Security Benefits.

And, as subsection (c) stipulates to, members to be sanctioned under today’s Act have an impaired ability to earn a living which given the advanced age of members of this pariah group might be their sole source of income they are able to receive.

Given the ages of all participants in the Second World War, time to litigate against this Act is certainly limited to those who might be plaintiffs. And if Social Security benefits are something that Congress can arbitrarily deny classes of elderly individuals it certainly will further add to the punishment factor this Bill engenders.

Yet, individual politicians will likely be reluctant to vote against the passage of the Nazi Social Security Benefits Termination Act due to the fear of being accused as siding with this pariah group and disfavoring victims of their atrocities. If this becomes law a troubling precedent will be set in motion that at some time in the future might rise again.

It is not necessary to approve of this pariah group to veto or cast aside this bill. It would be refreshing to see Congress understand the possible negative consequences to future retirees and to the Constitution.

By Darren Smith

Sources:

Deutsche Welle
United States v. Lovett, 328 U.S. 303 (1946) via Justia.com

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