Excerpted From: Jon C. Dubin, The Color of Social Security: Race and Unequal Protection in the Crown Jewel of the American Welfare State, 35 Stanford Law & Policy Review 104 (2024) (265 Footnotes)(Full Document)


JonCDubinThe Social Security programs are America's largest social benefit programs, eventually affecting over 96% of all Americans. They provide a lifeline for many, taking more Americans out of poverty than any other program. And they have become increasingly critical to survival after the major evisceration of the social welfare safety net in the 1990s through the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

These programs were the "cornerstone" or "crown jewel" of President Franklin Delano Roosevelt's (FDR's) New Deal; they were intended to provide a safety net and a baseline of economic rights and income security commencing at a time when material human suffering was at its apogee during the country's greatest depression. FDR addressed Congress on the proposed Social Security Act of 1935 in the winter of that year. He described the bill's "main objectives" as to protect "the security of the men, women, and children of the Nation against certain hazards and vicissitudes of life" and provide a "more equitable . . . means" for addressing "the consequence of economic insecurity."

The Social Security programs have been and remain of particular importance to African American and other historically subordinated and disproportionately impoverished communities of color. This is due to well-documented substantial disparities in generational wealth and savings, lesser access to jobs generating pension and retirement income or access to quality health care and health insurance, lower income levels, and greater dependence on employment involving arduous physical labor and unskilled low wage work. However, aspects of the Social Security programs' origins and history reflect significant racially disparate impacts in the programs' scope and application, limiting the attainment of the Act's lofty objectives and undermining equitable or equal economic protection against financial hardship and insecurity extended to white Americans.

As with many areas of administrative law, scholarship on Social Security law and the Social Security benefit programs often examines process, procedure and the "technocratic language of government agency action." It also explores bureaucratic functioning or competing theories and explanations for agency dysfunction, or the balancing of efficiency, consistency and process fairness in agency administration. Substantive Social Security law is sometimes perceived as tedious or impenetrable in interpretation, leading courts to observe that "[t]he Social Security Act is among the most intricate ever drafted by Congress [with a] Byzantine construction [which] makes the Act ‘almost unintelligible to the uninitiated.'"

However, basic features of the Social Security program, its history and how it has operated are also difficult to understand without considering the history of racism and white supremacy in the United States. This Article attempts to illustrate this point by deconstructing the Act's benefits programs' history and scope through the lens of race and equal protection doctrine and as applied to two major legislative provisions in Social Security Act benefit programs, disproportionately excluding persons of color from program coverage. These statutory exclusions involve different Social Security cash-benefit programs, enacted in different time periods, involving different exclusionary bases, and affecting different communities of color. Yet they arise from a common thread of the American experience emanating from racism and white supremacy and abetted through political disenfranchisement of the excluded communities of color.

Part II will supply an overview of the major Social Security benefits programs. Part III will examine and analyze the original 1935 Social Security Act's complete exclusion of disproportionately Black agricultural and domestic workers from the Old Age Insurance program. It will specifically challenge and critique the Social Security Administration Public Historian's relatively recent conclusion that race played no meaningful role in the social insurance program exclusion's adoption and the resulting impacts on African Americans and other similarly situated persons of color. It will also explore, in somewhat less depth, discrimination facilitated through local administration of the Act's means-tested welfare programs, and the contemporaneous and intertwined racially infused legislative history of the respective means-tested and social insurance old age programs enacted in Titles I and II of the 1935 Act. It includes analysis of the influence of southern legislators' efforts to preserve the postbellum plantation and sharecropping system's exploitation of Black farmworkers on each program's design. It also examines this statutory exclusion through the lens of equal protection doctrine to inform further the inquiry into the relevance of race in the exclusion's enactment.

Part IV will explore the statutory exclusion of residents from the United States Territories of Puerto Rico, the Virgin Islands, Guam and American Samoa—overwhelmingly Latino/a, Black, mixed-race, and/or Asian American, Native Hawaiian and other Pacific Islander (AANHPI)—from the Supplemental Security Income (SSI) program for low-income adults and children with disabilities and the elderly. This includes a critical evaluation of the application of equal protection doctrine in the Supreme Court's 2022 decision in U.S. v. Vaello Madero. This section also examines the lingering shadow of the overtly racist Insular Cases from the early twentieth century hovering over this controversy—a series of cases launching and reinforcing a separate and unequal regime of rights and benefits for territory residents through the construct of indefinite "unincorporated" territory status.

The Article concludes with suggestions for advancing racial justice in the Social Security programs through public policy, and legislative and administrative fora, to address the legacy of exclusion and disparate treatment, and informing responses to identified future threats of, and present policy actions with, racially disparate impacts in SSA administration and program design. It proposes reconciliation for past injury and inclusionary legislation to remedy the ongoing discriminatory exclusion in the SSI program in the territories.

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The Social Security Act's statutory exclusions and provisions examined above are from different time periods more than 35 years apart, directed to decidedly different issues, and affecting vastly different communities of color. Yet they are bound by a common thread of the American experience emanating from our original sin: racism and white supremacy. In historical context, the referenced exclusion provisions are, respectively, grounded in historical racism emerging from the "badges and incidents" of slavery and solicitude to protecting the postbellum plantation-sharecropping economy; or from American colonialism and imperialism around the turn of the twentieth century and indefinite separate and unequal treatment facilitated through amorphous unincorporated territory status based on theories of white Anglo-Saxon supremacy over alien races. Each exclusion was also abetted by political disenfranchisement and the relative political powerlessness of the excluded communities. Political disenfranchisement resulted from poll taxes, lynching and myriad forms of voter intimation against African Americans at the time of New Deal legislation; or the absence of Congressional representation or ability to vote for President in the territories, which continues to the present.

Those exclusion provisions also have lingering present-day consequences from the impact of disparate generational well-being and wealth generation, and diminished accrued insurance benefits accumulation, confronting African Americans from the period of disproportionate categorical exclusion, and from unequal and lesser benefits than those extended to white recipients in the Act's means-tested programs. They also include long-term and ongoing adverse impacts of the SSI exclusion, for over 50 years and running, on impoverished and overwhelmingly non-white (Latino/a, Black, AANHPI and mixed-race) disabled adults and children and the elderly in the territories, who remain categorially barred from the program. Although equal protection principles supply a useful lens with which to examine and evaluate these provisions' racially disparate scope and operation, equal protection doctrine as applied by courts has proven largely inadequate as a remedial tool to alter policy or redress injury—notwithstanding arguments of erroneous or cramped judicial interpretation advanced herein.

Avenues in public policy, and legislative and administrative fora, remain available to ameliorate and advance understandings of the Act's disparate consequences. While there is little that can realistically be done to retroactively remedy the 1935 agricultural and domestic worker exclusions, reversed in the 1950s after nearly two decades of exclusion, recognition of this social injury, its impacts, and the influence of articulated, racially discriminatory reasons by legislators and others behind it should not be forgotten. They should be added to discussions of reparations and reconciliation for a legacy of myriad governmental policies producing intergenerational injuries to the Black community. As a modest first step, SSA should provide more fulsome and inclusive materials on the historical section of its website. Those materials could incorporate accessible writings on the disparate racial impact of the 1935 Social Security Act's exclusions and structure and the undisputed presence of repugnant racist sentiments and considerations supporting an ultimately racially disparate program design with both foreseen and foreseeable adverse consequences. Alfred Brophy has stressed the value of forward-looking reconciliation (as opposed to an exclusive focus on compensatory reparations), which includes the goals of changing public understanding about the present impact of past injustice, acknowledging past contributions and harms, and effecting justice and preventing future harms.

These goals are increasingly important in a political climate and moment when Black history is more broadly under assault and when Congressional and regulatory proposals for Social Security reform are regularly emerging with potential additional racially disparate future consequences. Future racially disparate Social Security program proposals include re-introduction this year of an oft-discussed plan to raise the Social Security full retirement age to 70 to cut benefit outlays and address trust fund depletion, as opposed to proposed revenue-side payroll tax wage-cap formula adjustments and other less-regressive reform alternatives. The retirement age increase would have a foreseeable racially disparate impact on benefit receipt by Black workers due to shorter Black life expectancy and resulting shorter temporal benefit-receipt windows.

Top SSA administrators have also floated proposals to alter the Social Security disability insurance and SSI disability programs' disability definition to eliminate or de-emphasize the vocational factors of age, education, and past work experience in the disability definition and interpretive regulations. Because of disproportionately adverse vocational obstacles confronting Black and Latino/a workers—i.e., lower education, lower skill, arduous past work—this proposal would disparately limit coverage in each program for these groups. SSA has also: 1) failed to act over many years on multiple U.S. General Accounting Office reports documenting unexplained and racially disparate outcomes in disability benefits adjudication by SSA's administrative law judges at hearings with statistically significantly lower approval rates for Black claimants; 2) restricted the standards for disability based on medical factors alone in cases involving sickle cell disease (SCD) under the hematological disability listing regulations; and 3) recently eliminated "inability to communicate in English" as a vocational factor and substantially restricted the definition of "literacy," thereby raising the bar for non-English-fluent and literacy-challenged claimants to establish disability based on inability to adjust to jobs in the labor market under SSA's medical-vocational ("grid") guidelines. All of these actions or inactions have disparate adverse consequences on Black and Latino/a claimants. At the same time, previous Social Security legislation from the 1980s through to 2005, adding various criminal justice system-involved restrictions on Social Security benefit receipt, have had increasingly exclusionary, and deleterious consequences on Black and Latino/a individuals and communities, due to the racially disparate consequences of overcriminalization and mass incarceration policies from the late 1980s through the 1990s.

With respect to the SSI exclusion in the territories, the path toward reform is more straightforward. The failure of "Build Back Better" in 2022 should not be viewed as the death knell of the SSI Territory Inclusion legislation. That it was approved in the House, and appeared to fail (or on the road to failure before pulled) by only two votes in the Senate as a very small part of a far more costly overall package, can be viewed as a potentially positive political harbinger for the future.

For the affected communities of color injured by either of the Social Security Act exclusion provisions analyzed in this Article, full and equal enjoyment of the benefits of the "crown jewel" of the American welfare state continues to prove elusive. As the Social Security Act approaches 90, it is well past time for our public officials to take greater steps to deliver on the promise of providing a "more equitable means" for addressing "the consequences of economic insecurity." Indeed, "our fellow Americans . . . deserve no less."

Board of Governors Distinguished Service Professor, Distinguished Professor of Law, Paul Robeson Scholar, Rutgers Law School.