Peter W. Martin
Despite the importance of the Social Security program, its foundation in an elaborate set of laws, and the huge numbers of administrative adjudications and judicial appeals raising points of Social Security Law, the phrase does not appear as species, genus, family, order, class or phylum in the West Publishing Company's Key Number System.(1) Moreover, if one were to take the American Association of Law Schools' Directory of Law Teachers and the Index to Legal periodicals literally, one would have to conclude that it is neither a subject that law teachers teach nor one about which scholarly articles are written.(2)
Sadly the latter part is painfully close to the truth, but the apparent void is also a reflection of confusion over terminology. To begin, we have no term of widespread acceptance denoting either the full arsenal of government programs that each year distribute billions of dollars in public benefits to individuals and families, or "the law" that controls this distribution. The programs, of course, all have names: Supplemental Security Income (SSI), Old Age, Survivors, and Disability Insurance (OASDI), Food Stamps, Medicaid, Medicare, Veteransí Pensions and Compensation, Unemployment Insurance, Workmenís Compensation, Public Housing and so forth. But a word or phrase generally understood as describing them collectively is lacking.
The problem is not one of concept or definition. Many have had reasonable success at identifying features that distinguish programs like these from a commercial code, tariff, scheme regulating interstate air travel, or even farm subsidies. Eveline Burns, for example, writing in 1956, characterized the former as "measures . . .[in which] the object of public action is to provide alternative income to persons whose normal private incomes have temporarily or permanently disappeared or to remove from individuals and families the burden of some very generally experienced charges on income."(3) A congressional study of some years ago referred to "public programs which have as their aim the maintenance or supplementation of current personal living standards through assistance in cash or in goods and services such as food, health care, and housing."(4) The issue is what to call such laws. Dr. Burns was defining, she said, those programs which "now commonly [go] by the name of social security."(5) But they do not go by that name today, nor did they in 1956, at least in this country. During the last thirty years, "Social Security" has become synonymous with a single federal program: Old Age, Survivors and Disability Insurance (OASDI).(6)
Those who selected the title of the Social Security Act of 1935 had far greater aspirations for the phrase. It was chosen over its major rival, "economic security," as the appropriate umbrella for a number of programs quite disparate in structure and focus: (1) federal grants-in-aid for three categories of state-administered public assistance--Old Age Assistance, Aid to the Blind, and Aid to Dependent Children; (2) a complicated tax-incentive scheme encouraging state-financed unemployment compensation programs combined with grants-in-aid for their administration; and (3) the totally federal Old Age Insurance Program.(7) Although these programs or their successors remain clustered in title 42 of the United States Code under the heading "Social Security Act," and have been joined there by such important additions as Medicare and Medicaid, the phrase "social Security" is almost never used to refer to the full collection.(8) On those few occasions when it is, it remains too narrow a term, for it fails to include income security programs that have ended up in other parts of the United States Code (Food Stamps, Public Housing, and Veterans' Pensions) or programs that have remained state or local efforts (General Assistance and Worker's compensation).(9)
More expansive, but equally unsatisfactory, is "social welfare legislation." In a thoughtful piece appearing some time ago in the Stanford Law Review, Lawrence Friedman explored the difficulties of defining that phrase along with two others he treats as synonyms -- "social legislation" and "welfare legislation."(10) Quite rightly, Friedman notes that it is neither the degree of the legislatorís altruism nor legislative purpose which sets "social welfare legislation" apart.(11) His ultimate working definition comes quite close to the Burns definition of social security. Indeed, he trims it down a bit:
We will use the term "social welfare legislation" to describe the enactments that, either as a whole or in some part, contain provisions that have the following three features: First, the statue defines or implies a minimum standard of living. Second, it asserts or implies that there is a group that falls below the minimum; it may tell how the group is to be identified. Third, it sets up or implies some program to help all or part of that group to reach or approach the minimum standard.(12)
But unfortunately usage of the phrase "social welfare" is not so disciplined. In its annual computation of social welfare expenditures, for example, the Social Security Bulletin includes not only programs for income maintenance "through social insurance programs and public assistance" but also public expenditures for health and education. A law school casebook entitled Social Legislation devotes over one-third of its pages to public regulation of labor standards -- wages, hours, and working conditions.
"Welfare," which Friedman suggests as a synonym for "social welfare," has, like "Social Security" shrunk to much smaller dimensions. In January 1973, just after the enactment of a dramatically new welfare program for the elderly, blind and disabled (SSI), the New York Times bemoaned the death of "welfare reform."(13) It was referring, of course, to the Congressís failure to replace the program of Aid to Families with Dependent Children (AFDC) with something better. For the Times and most of its readers, AFDC had become "welfare." But even for many more careful in their use of the word, "welfare" has come to serve the purpose which "public assistance" once did -- a designation for all cash programs (or, perhaps, even all programs) with a need test. Its broader meaning, encompassing the "social insurance" programs, is still recognized by some, but that usage is far less common now than it was in the late sixties when the Friedman piece was written.
In a number of recent government studies, and in social science literature generally, all these troublesome terms have been supplanted by several new ones which seem to offer greater precision -- at least in part because they are without confusing, popular connotations. A series of studies prepared for the Subcommittee on Fiscal Policy of the Joint Economic Committee of Congress speak of "public income transfer programs." Another government report concerns itself with the "income support system." "Income maintenance" is a third phrase with fairly wide currency. What allows these terms to offer greater precision is also the source of their weakness: they have, as yet, failed to gain significant acceptance in the popular or legal vocabulary. For the moment, they remain "technical" terms, useful among experts but not widely understood.
It is a truism that for those able to piece together the tale, words can tell a great deal about the individuals and institutions that have given them shape. The absence of a word for a particular concept probably tells even more. So it is hardly by chance that "Social Security" once intended to encompass a full system of "income support" no longer is understood as doing so and that it has no widely accepted replacement. The truth is that neither the public nor Congress nor the legal profession has viewed these diverse programs as a whole. The principal elements of the Social Security Act of 1935 had such different political dynamics that they shortly developed independent direction. Although initially in the hands of a single Social Security Board, Unemployment Insurance, OASDI, and AFDC each found its way to a different home in the federal bureaucracy. Different agencies, and different congressional committees, were given jurisdiction over such new programs as housing subsidies, Legal Services, and Food Stamps. Workerís Compensation and General Assistance have continued to be the responsibility of state and local governments. In short, during the lifetime of these programs, there has been no institutional expression of "system" comprehensive enough to invite Congress or members of the public to think of the component programs as part of a whole.
Nor has the legal profession been prepared by training or practice to provide that perspective. Segments of the bar furnishing service for a fee often a contingent one, have over the years handled a reasonable volume of OASDI and Workerís compensation claims. A few union-sponsored legal service programs have also covered Workerís Compensation and sometimes Unemployment Insurance as well. But until the federally funded Legal Service Program was launched, there was negligible professional representation of those sufficiently impoverished to be claimants of need-test benefits. Since 1965 that program has involved a portion of the bar in "welfare claims," but the emphasis has tended to be heavily upon the need-tested programs. The "fee generating" programs have remained primarily the province of the private bar. Another tool of the Legal Services lawyer suggest that over time OASDI, Unemployment Insurance, and Workerís Compensation have claimed more of that programís attention.
The way law schools have packaged their curriculum has had little effect on this problem of perspective. In many law schools there is no course, aside perhaps from a clinic, providing significant coverage to any government income support program. Once there were courses with such titles as Law and Poverty that did, but no more. Workerís Compensation may be covered in Torts, perhaps; Unemployment Insurance in Employment Law, perhaps; and OASDI, Medicaid, and Medicare may be treated in an offering on Elder Law.
A legitimate question in the face of this failure of terminology is whether there really is something here which deserves recognition as a distinct field of law. I am strongly persuaded that there is. Let me briefly marshal the arguments. First, there is a high degree of similarity in the legal issues generated by programs superficially as diverse as Medicaid, OASDI, and Food Stamps. All three must define eligibility and benefit levels. all three are dependent on income, or certain types of income, which in turn requires rules for the definition and measurement of income over time. All three must accommodate themselves to the living arrangements and the family ties of beneficiaries, and thus they must include some reference to status under state domestic relations law. The procedural apparatus for adjudicating individual benefit claims and the role of judicial review is an obvious point of comparison. Finally, the programs may be usefully analyzed in terms of the intergovernmental relations they involve.
Within this field of law without a name, the most important single program or complex of programs by almost any measure is that commonly known today as "Social Security." This set of materials focus on it, but cannot reasonably do so without acknowledging Social Security's complex interaction with other programs and sources of income, public and private. Sensibly or not, the current quilt of public income support programs drapes itself across our national population with large areas of overlap. It is not unusual for a single family to be involved with two, three, or even five of these programs. This requires that those who deal with the individual programs, including lawyers, develop a habit of thinking about the larger system even though it lacks a name. If they don't their efforts will be seriously limited and, all too often, counterproductive.
1. The nearest equivalent in the West taxonomy is "Social Security and Public Welfare."
2. Law teachers teach either Social Legislation, which is said to include Law and the Elderly and Welfare Law, or Poverty Law. A.A.L.S. Directory of Law Teachers 1237, 1255 (1999). They write about Social Insurance, Social Security, or Public Welfare. See, e.g., 38 Index to legal Periodicals, September 1998-August 1999, at lvii (1999).
3. E. Burns, Social Security and Public Policy 4 (1956).
4. Staff of Subcomm. on Fiscal Policy of the Joint Economic Comm., 92d Cong., 2d Sess., Handbook of Public Income Transfer Programs 1 n.1 (Comm. Print 1972). See also id. at 8.
5. E. Burns, supra note 3, at 4.
6. A. Altmeyer, The Formative Years of Social Security 5 (1966). In other parts of the world, "social security" reportedly is still used in the larger sense. It appears in the 1942 Declaration of the United Nations and in the constitutions of a number of countries which attained independence during the past three decades. id. In the United States, one can find a few holdouts. See, e.g., HEW, Social Security Programs in the United States iii (1966).
7. In 1934 President Roosevelt appointed a cabinet-level "Committee on Economic Security." Its report, proposed bill, and the President's forwarding message to Congress all used the phrase "economic security." See Message of the President Recommending Legislation on Economic Security, H.R. Doc. No. 81, 74th Cong., 1st Sess. (1935). Only during congressional consideration of the bill was the term "social security" substituted. See generally A. Altmeyer, supra note 6, at 3-7; E. Witte, The Development of the Social Security Act 3-80 (1962).
8. Some, but by no means all, of the programs established by the Social Security Act are run by the Social Security Administration. However, its Social Security Bulletin furnishes statistics on all of them plus a number of other "public income-maintenance programs."
9. This is the failing of the periodically published Compilation of the Social Security Laws prepared by the Social Security administration. See H.R. Doc. No. 93-117, 93d Cong., 1st Sess. (1973).
10. Friedman, Social Welfare legislation: An Introduction , 21 Stan. L. Rev. 217 (1969).
11. Id. at 218-19.
12. Id. at 220. Friedman distinguishes his definition from Burns's definition, noting that hers is potentially so broad as to include "higher education and a wide range of government services, including fire, police, and garbage collection." Id. at 218.
13. NY Times, Jan. 14, 1973, at 28, col. 1.