Outline Public Debt &amp Ss Complaint - Draft 08-17-2011

OUTLINE AND BACKGROUND FOR COMPLAINT: IS CONGRESS IMMUNE FROM SUITS TO QUESTION THE VALIDITY OF THE PUBLIC DEBT
OF THE UNITED STATES Charles Edward Lincoln, III, August 17, 2011 The primary purpose of this lawsuit is to seek a declaratory judgment concerning the following controversy regarding the interpretation or construction of the Constitution: does the immunity from suit afforded to members of Congress by 6:3 of Article I extend to actions which question the validity of the public debt of the United States under 4:1 of the Fourteenth Amendment? The reason for this question is the parallel inclusion of the phrase shall not be questioned in both clauses, together with the inference that these two exactly equivalent negatives, in clauses specifically regarding the power of Congress to appropriate, borrow, and spend money, must be read together to cancel each other out, yielding a positive waiver on immunity. Title 28 U.S.C. 2201(a) makes the remedy of declaratory judgment in the United States District Courts as follows: In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. The case of actual controversy to be framed would start with the question of pure constitutional construction as stated above, which can be paraphrased and restated, Can members of Congress be sued, under the Fourteenth Amendment, for undermining the binding force of obligations assumed by Congress through lawful actions? While there is no question that this is a Federal question involving the Constitution over which U.S. District Courts would have jurisdiction under 28 U.S.C. 1331, the early disposition of the case will turn on the closely related doctrines of standing and justiciability as defined and refined by the Supreme Court of the United States in almost countless decisions, with the issue coming up in one form or another almost every year. Standing requires that a defendant have a direct stake or personal interest in the outcome of decision of any case or controversy. Under all
Outline and Background for Complaint on the Public Debt Clause & Social Security August 17, 2011 1
common law doctrines and most statutory constructions of insurance obligations or trusts, the lawfully vested beneficiaries of Social Security and Medicare all have a direct stake and personal interest in Congressional management of the Social Security Trust, which is set up and maintained by the Executive Branch of the U.S. Government with all the trappings and appearance of a genuine, valid common law trust. A TRUST FUND IN NAME ONLY: A VERY ELABORATE HOAX Chief among these outward and visible signs belying an inward and material lack of competence or corpus to this trust is that the Social Security Trust is nominally administered by a Trust Committee currently consisting of Timothy F. Geithner, the Secretary of the Treasury, Kathleen Sebelius, the Secretary of Health and Human Services, Hilda L. Solis, the Secretary of Labor, Michael J. Astrue, the Commissioner of Social Security, Carolyn W. Colvin, the Deputy Commissioner of Social Security, and two additional trustees Charles P. Blahous, III, and Robert D. Reischauer. These trustees, like all fiduciary managers of trusts, are required by law and do in fact render an annual report on the management of the trust estate, which was made available this year under the title, "The 2011 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds," which is available on-line, signed by the Trustees, at: http://www.ssa.gov/oact/tr/2011/tr2011.pdf. Like any private insurance program, this Trustees report is prepared according to actuarial principles by the Social Security Office of the Chief Actuary whose website is: http://www.ssa.gov/oact/index.html. The key difference between this apparent or de facto trust and a normal trust administered by a bank, insurance, company, or private trustee of any kind, is that these trustees actually have no control whatsoever over the Trust Corpus of Social Security, which is entirely at the disposition of Congress. In other words, there is in fact no Social Security Trust whatsoever, but only an empty structure with a name and fancy paperwork to maintain the appearance of a trust. The Social Security Trust, properly analyzed under Anglo-American common law, could accordingly only be characterized as a massive fraud, one of the largest frauds in the history of the world in fact. The total amount paid into Social Security between 19372009 was $13.8 trillion (according the official history of the Social Security Administration at http://www.ssa.gov/history/hfaq.html). Under any normal trust or private insurance company, every dime of this $13.8 trillion SHOULD be subject to fiduciary accounting regarding its
investment, management, and distribution to individual beneficiaries, but not one page of such competent accounting could ever be produced because Social Security has never actually been managed as a trust. The accounting that is available appears to be an epic tale of self-dealing. To begin with, the creation of the Social Security Trust Fund itself in 1939 was, like the creation of a powerless Trust Committee discussed above, merely a declaration of trust in name only, in that it did not follow the procedures for creation of a trust fund by originating or delivering any initial trust corpus from the taxes designated as Social Security Taxes. The governments own Social Security Administration website explains it as follows: So the payroll taxes were just credits in the Social Security account on the Treasury's ledger under the initial law. The investment rules governing payroll tax income were also established in the 1935, and are essentially the same ones in use today. Specifically, the 1935 Act stated: "It shall be the duty of the Secretary of the Treasury to invest such portion of the amounts credited to the Account as is not, in his judgment, required to meet current withdrawals. Such investment may be made only in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States." (See Title II, Section 201of the 1935 law) In the 1939 Amendments, a formal trust fund was established and a requirement was put in place for annual reports on the actuarial status of the fund. Specifically, the law provided: "There is hereby created on the books of the Treasury of the United States a trust fund to be known as the 'Federal Old-Age and Survivors Insurance Trust Fund'. . . . The Trust Fund shall consist of the securities held by the Secretary of the Treasury for the Old Age Reserve Account on the books of the Treasury on January 1, 1940, which securities and amount the Secretary of the Treasury is authorized and directed to transfer to the Trust Fund, and, in addition, such amounts as may be appropriated to the Trust Fund as herein under provided." (Title II, Section 201a) In other words, a formal trust fund was established for the Social Security program and the credits already on the Treasury's books for the Social Security program were to be
transferred to this Fund, along with all future revenues raised for the program. http://www.ssa.gov/history/BudgetTreatment.html Research Note # 20: The Social Security Trust Funds and the Federal Budget by Larry DeWitt. You have to read carefully here: there is hereby created on the books a trust fund to be known as The Trust Fund shall consist of the securities held by the Secretary of the Treasury for the Old Age Reserve Account on the books of the Treasury on January 1, 1940, which securities and amount the Secretary of the Treasury is authorized and directed to transfer to the Trust Fund, and, in addition, such amounts as may be appropriated to the Trust Fund as herein under provided. NO MONEY WAS EVER TRANSFERRED FROM ONE FUND INTO ANOTHER EXCEPT ON THE BOOKS OF THE SECRETARY OF THE TREASURY. The conclusion of Mr. DeWitts 2005/2007 report cited above states: SummarySo, to sum up: 1- Social Security was off-budget from 1935-1968; 2- Onbudget from 1969-1985; 3- Off-budget from 1986-1990, for all purposes except computing the deficit; 4- Off-budget for all purposes since 1990. Finally, just note once again that the financing procedures involving the Social Security program have not changed in any fundamental way since they were established in the original Social Security Act of 1935 and amended in 1939. These changes in federal budgeting rules govern how the Social Security program is accounted for in the federal budget, not how it is financed. Research Note #20, cited above. What Congress has done is to increase general taxes and revenue in the name of Social Security and then directed the Secretary of the Treasury to buy Government Treasury Bonds (thats right, they directed the Secretary of the Treasury to buy his own bonds) and carry this on the books as the Social Security Trust. In other words, Social Security, ab initio has been funded exclusively by government-issued, government-purchased debt rather than government equity or outside investment bringing real money INTO the government (as would result from a public issue of Treasury bonds, which are normally quite marketable, in fact, considered prime investments---at least until the recent downgrading of U.S. debt after the
August 2, 2011 budget compromise approved by Congress and President Barack Hussein Obama). It is doubtful whether a single dime of social security tax revenues has ever been used to buy a single one of this governments bonds deposited into the Social Security Trust Fund. If any such dime has ever been so used, it is impossible to discern it from the record available to us at the present time. No Segregation of Trust Corpus, No Initial Delivery of Anything One proper way for Congress to create a trust, especially an participant-based insurance trust, would have been to order the funds received by the IRS marked Social Security Taxes to be segregated and deposited into a special account or set of accounts and invested in income producing and/or blue chip appreciable securities, according to ordinary fiduciary standards of accounting. There may be other ways Congress could have created a valid trust, but it did no such thing. Apparently there USED to be marketable treasury bonds included in the Social Security Trust Fund, but please note that for the Government to invest in its own bonds is just a very polite way of saying that the Government was printing money into existence and using those funds to purchase the non-marketable treasuries (non-marketable means, among other things, that no one outside the U.S. Government WOULD buy them, even if they could). NO marketable securities are currently held as part of the Social Security Trust Fund, but only Special Obligations of the Treasury Department---issued perhaps how and to whom? By the Government to itself because nobody else would buy them? This again is no idle or ignorant accusation, but is information provided on the Social Security Administrations own website: http://www.ssa.gov/cgi-bin/investseries.cgi which website showed the Social Security Administrations holdings as of August 17, 2011 (the day on which this outline was written). The story of how this happened has never been concealed from the public and is in fact easily available, even if probably very few people in the United States understand the significant reality that THERE NEVER HAS BEEN A SOCIAL SECURITY TRUST FUND in the ordinary AngloAmerican common law sense utilized throughout England & Wales, Scotland, Ireland, all 50 states (Louisiana Civil Law Trust Code differs in no material way in its treatment of fiduciary obligations), Canada, Australia, New Zealand, Jamaica and all of the former British West Indies (including tax-havens like the Bahamas, Barbados, Belize, the Cayman, and Virgin Islands), and the Republic of South Africa.
The earliest sources one would look to for understanding the legal non-Existence of the Politically denominated Social Security Trust would include the Supreme Courts case of Steward Machine Co. v. Davis, Collector of Internal Revenue, 301 U.S. 548 and Helvering, Commissioner of Internal Revenue et al. v. Davis, 301 U.S. 619 (both decided on May 24, 1937). Both of these cases described the Social Security tax as a special income on employees and an excise tax on employers. Both cases uphold Congressional power to enact the Social Security Statute in the name of the General Welfare, and neither make any reference to common law principles of trust or fiduciary accounting, or of the power of Congress to change the terms of Social Security at will. THE LARGEST CHECKING ACCOUNT IN THE USA? The nearest thing we have in either case to a discussion of such matters come in Steward v. Davis in Volume 301 U.S. at pages 594-597, when the subject is the degree to which States surrender their quasisovereign powers by participation in the collection of the Social Security Tax: We are to keep in mind steadily that the conditions to be approved by the Board as the basis for a credit are not provisions of a contract, but terms of a statute, which may be altered or repealed. 903(a)(6). The state does not bind itself to keep the law in force. It does not even bind itself that moneys paid into the federal fund will be kept there indefinitely or for any stated time. On the contrary, the Secretary of the Treasury will honor a requisition or the whole or any part of the deposit in the fund whenever one is made by the appropriate officials. The only consequence of the repeal or excessive amendment of the statute, or the expenditure of the money, when relinquished, for other than compensation uses or administrative expenses is that approval of the law will end, and with it the allowance of a credit, upon notice to the state agency and an opportunity for hearing. 903(b)(c). ...... in truth there is no agreement as to the method of disbursement. There is only a condition which the state is free at pleasure to disregard or to fulfill. Moreover, approval is not requisite if public impoyment offices are made the disbursing instruments. .....
All that the state has done is to say in effect through the enactment of a statute that her agents shall be authorized to deposit the unemployment tax receipts in the Treasury at Washington The statute may be repealed. 903(a)(6) The consent may be revoked. The deposits may be withdrawn. The moment the state commission gives notice to the depositary that it would like the moneys back, the Treasurer will return them. ...... There are very good reasons of fiscal and governmental policy why a State should be willing to make the Secretary of the Treasury the custodian of the fund. His possession of the moneys and his control over the investments will be an assurance of stability and safety in times of stress and strain . . . Nor is there risk of loss or waste. The credit of the Treasury is at all times back of the deposit, with the result that the right of withdrawal will be unaffected by the fate of any intermediate investments, just as if a checking account in the usual form had been opened in a bank. The last line quoted above, from 301 U.S. 597 of Justice Benjamin Cardozos opinion, says it all: the Social Security Trust Fund should be regarded as an open access checking account from which parties who are neither intended trustees nor designated nor contributing beneficiaries could withdraw. That fact alone probably explains why the Federal Government has for seventy five years felt so very free to engage in the on-budget/off-budget manipulation of the receipts of Social Security Taxes as described in DeWitts summary quoted above. To call a massive program for the collection of money from the people a Trust and then structure it by statute in such a way that the Supreme Court of the United States would call it the equivalent of a checking account, should be understood both as common law fraud of the actual, neither negligent nor constructive, variety, because to declare a property to be a Trust for individual taxpayers and their families and then to organize it as a checking account on which multiplicity of governmental agents can draw constitutes an intentional misstatement of a material fact made with the intent to induce reliance on the part of the (taxpaying) recipient of the information. THE NEED FOR RECONSTRUCTION OF SOCIAL SECURITY AS A CONSTRUCTIVE TRUST
Social Security is a massive fraud on the American people that has created a MINIMUM of a $13.8 trillion constructive trust at common law--which imposes the duties of a trustee, including the obligation to disgorge from his own pocket or borrow on his or her own estate or credit and generally to make up for deficits or deficincies in the trust, including accrued interest, at his or her own expense. That is how Social Security could and would be analyzed at Common Law. The Cabinet Level Trustees are much less culpable and liable than Congress because they are merely accessories to the crimes of fraud and embezzlement from the taxpayers under false pretenses, it is the political members of Congress who sold the program of Social Security to the people who perpetrated the fraud, with the advice and consent of the President of the United States to be sure. And Congress and the President have continued in this fraudulent scheme without rest or abatement from 1935 until the FY 2012 Budgetary Compromise reached on just over two weeks ago on August 1-3, 2011. Realizing the truth of all of the above statements makes one feel positively sorry for poor old Bernie Madoff rotting in a Federal Correctional Institution for the next 148 years over the theft or mismanagement of a (comparatively) paltry $18-$65 billion (a trillion is 1000 billions, just as a billion is 1000 millions, and a million is 1000 thousands---numbers like 13.8 trillion are readily comprehensible only to specialists in Astrophysics or geologists who like to estimate how many grains of sand there are on all the beaches or deserts in the world.) Under the elementary principles of common law, throughout the United States, beneficiaries of a trust, such as an insurance policy, are entitled to an exact statement of the amount of money constituting the trust corpus from which their benefits are or will be derived, as well as an exact estimate of how much income will be available to pay their benefits as or when due. In fact, as trust beneficiaries, purchasers of private insurance are, like all other trust beneficiaries, said to have a property right to their insurance proceeds and to information concerning the insurance corpus. SOCIAL SECURITY PAYORS ARE NEITHER TRUST BENEFICIARIES NOR EVEN PROPERTY OWNERS But in fact, Social Security has never been this sort of Trust Fund, nor even this sort of checking account. Writing for the Congressional Research Service exactly one year and one week ago, Kathleen S. Swendiman and Thomas J. Nicola wrote and published, on August 11, 2010, in their Social
Security Reform: Legal Analysis of Social Security Benefit Entitlement Issues (7-5700, www.crs.gov, RL32822) that: The inherent ability of Congress to modify the provisions of Title II of the Social Security Act, even to the extent of affecting the benefits an individual is currently receiving, is thus well-established. Swendiman & Nicola, pp. 1-2, citing Flemming v. Nestor, 363 U.S. 603, 608-610 (1960). And indeed, whatever illusions might have survived 1937 decisions cited above, the rights to treat taxpayer beneficial interests in Social Security as property were resolved in the negative by the Supreme Courts decision in this fateful decision handed down in 1960 which held: To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social-Security Benefits, 37 Ore. L. Rev. 299, 359. It was doubtless out of an awareness of the need for such flexibility that Congress included in the original Act, and*611 has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act. 1104, 49 Stat. 648, 42 U. S. C. 1304. That provision makes express what is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 83d Cong., 1st Sess., pp. 920-921. It was pursuant to that provision that 202 (n) was enacted. We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment. Flemming v. Nestor, 363 U.S. at 610-611. Flemming v. Nestor has been cited repeatedly and is good law, which has been upheld and relied upon by the Social Security Administration, Congress, and all other authorities up through the present time. See, e.g. Michael Abramowicz, Train Wrecks, Budget Deficits, and the Entitlements Explosion: Exploring the Implications of the Fourteenth Amendments Public Debt Clause. http://ssrn.com/abstract=1874746 George Washington University Law School Public Law and Legal Theory
Paper No. 575 published in 2011. The status of the beneficiarys interest in social security as been described ambiguously (and quite legally disingenuously) as an entitlement in most popular political dialogue, and the question has been what sort of protections DO exist prior to the divestiture or reduction of entitlement rights to income or payments for any kind of benefits. DOES THE 14th AMENDMENT PREVENT CONGRESS FROM TAKING VOID OR ILLEGAL ACTIONS WHICH IMPUNE THE VALIDITY OF THE PUBLIC DEBT OF THE UNITED STATES? We have now reached full circle in our analysis. We have posited that the language of the Public Debt Clause of the Fourteenth Amendment modifies the legislative immunity clause of Article I, 6:3 of the Constitution of 1787. We explored the history of the Social Security Trust to make a simple point: the creation and management of that Trust in 19351940 and ever since has been, when analyzed at common law, a void or illegal matter of massive public fraud, breach of public trust, and embezzlement authorized by statute. The question is whether Congress and the United States Government can be held liable under the Fourteenth Amendment. To argue in favor of such a destruction of legislative immunity is, in essence, to argue yet once again for a New American Revolution, a Reclamation by the People of their Rights to Honest and Fair Dealings with Government and the right to Honest Services by their Governmental Representatives. But, aside from a mere sense of equity and justice, what is to recommend this course of conduct to the Courts, who would need judicially preside over this new American Revolution, of this Reclamation of the Rights of the People, if they were to hear and then grant the Complaint for Declaratory Relief Recommended above? For Better or For Worse, the Fourteenth Amendment Altered the Nature of the Relationship between the Federal Government and the People as Well as the States and the Federal Government First, I would cite the general context of the Public Debt Clause, the Fourteenth Amendment itself. Even the most conservative of commentators recognize that the Fourteenth Amendment radically altered the relationship between the States and the Federal Government, and plainly extended at the very least, the guarantees of due process of law under the Fifth Amendment to all the states. Since the 1920s, the Supreme Court has held that the entire
Outline and Background for Complaint on the Public Debt Clause & Social Security 10 August 17, 2011
Bill of Rights has been incorporated to the States by the Fourteenth Amendment, although the scope, meaning, breadth, and depth of each amendment remains much debated. Individual standing to enforce the guarantees of the Bill of Rights, as against the Federal Government and the States, has been universally recognized. More than any other amendment, the First Amendment has been cloaked with special status among all of the first ten amendments. The right to petition for redress of grievances is clearly the most relevant of all First Amendment rights to the question of whether any question is justiciable in court, and yet of all the clauses of the First Amendment it has received the least judicial attention. Still, I would certainly invoke the very special status of the First Amendment right to petition the Federal Government as a special right accruing to all those who built their lives around the Governments fraudulent promise of Social Security and the Social Security Trust Fund Checking Account for the Government. Several of the first ten amendments, notably the Second, Third, Ninth, and Tenth, have received significantly less attention than, for example, the First, Fourth, Fifth, and Eighth. But three years ago, for the first time in history, the Justices ruled in District of Columbia v. Heller, 554 U.S. 570 (2008), that individuals do indeed possess at least some constitutionally protected rights to keep and bear arms under the Second Amendment. Even more startling, earlier this year, the Supreme Court even recognized and declared that individuals have standing to enforce the Tenth Amendment (which refers primarily to the States), in Bond v. United States, 564 U.S. ____ (2011). WHY ARE CIVIL RIGHTS ACTIONS IMPORTANT NOW? One of the chief vehicles for Constitutional Challenges under the Fourteenth Amendment has been the Civil Rights Action, 42 U.S.C. 1983, 1988, effectively a statutory writ or form of lawsuit for Constitutional Torts expressly authorized to be brought by any person injured against the officers or agents or persons acting under color of law in any state. It is critical to realize two things about 1983 & 1988, one is that 1988 specifically incorporates the common law forms of action and remedies as supplemental to those expressly authorized by statute against all state officers. The second is that, as amended in 1996, 1983 & 1988 (just like the Fourteenth Amendment as here interpreted) somewhat surreptitiously codified the United States Supreme Courts holding in Pulliam v. Allen 466 U.S. 522 (1984) reduced the threshold for judicial immunity from situations
where action [was] taken in the complete absence of jurisdiction to those where action was clearly in excess of such officers jurisdiction. See also 1996 USCCAN 4216-4217. The 1996 amendments were proposed by the late Senator Strom Thurmond, who had waited for most of his lifetime to reduce Judicial Immunity in the aftermath of his various quarrels with Chief Justice Earl Warren. 42 U.S.C. 1981-1982 and 1983-1988 were all originally enacted by those same 39th-40th Congresses of the Reconstruction period (1865-1869) during which the Fourteenth Amendment was drafted, adopted, and began to be implemented. The creation of the first Equal Rights Statutes for Civil Rights (1981-1982) and the Civil Rights Action itself and the debates recorded in the Congressional Globe (and recounted in a trio of major decisions in the 1960s-70s 1 ) concerning the need to curtail legislative, judicial, and executive immunities all reflect a clear consciousness that governmental immunity and due process of law did not go hand in hand. While 42 U.S.C. 1983-1988 did not expressly authorize an action against Federal officers parallel to the Fourteenth Amendment Zeitgeist purposeful reduction of state autonomy and immunities, the United States Supreme Court found that the statute implied a similar cause of action against Federal Officers in Bivens v. Six Unknown-Named Agents, 403 U.S. 388 (1971)2. Now from a deeper historical perspective, just as the Fourteenth Amendment was expressly designed to limit the power and Sovereign Immunity of the individual states of the Union after the Civil War, I submit now that the Fourteenth Amendment was also designed both to limit the power and break down the immunity of Congress. CERTAIN DEBTS MUST NOT BE PAID BECAUSE THEY ARE VOID AND ILLEGAL---What Limitations? According to Michael Abramowicz recent working paper on the Public Debt Clause, cited above, the Fourteenth Amendments Public Debt Clause was designed at least in part to prevent Congress from assuming
1 Dombrowski v. Pfister, 380 U.S. 479 (1965), Younger v. Harris 401 U.S. 37 (1971) and Mitchum v. Foster 407 U.S. 225 (1972)---the clearest exposition of the legislative history is found in the last of these, Mitchum v. Foster which held that 42 U.S.C. 1983, 1988 constituted an express authorization for Federal Courts to enjoin the proceedings in State Courts, as an express exception to 28 U.S.C. 2283 known as the Anti-Injunction Act. 2 Bivens was decided the same term as Younger v. Harris which had affirmed and construed Dombrowski v. Pfister). Outline and Background for Complaint on the Public Debt Clause & Social Security 12 August 17, 2011
Confederate debts, mandating that all such debts, obligations and claims shall be held illegal and void. This was an amendatory restriction on the power of congress over the public debt and on appropriations and spending granted by Article I. Indeed, 2, 3, and 4 of the Fourteenth Amendment are all designed, in one way or another, to amend Article I of the Constitution relating to the Congress. In other words, if Congress had attempted to absorb or exonerate the debt of the Confederate States of America, or the debt of any of the individual states belonging to the Confederacy, in a manner analogous to the United States absorption of the total public debt of the Republic of Texas upon that states original Annexation in 1845-46. Congress would have violated the plain letter of the Constitution, and would might even have been guilty of a form of treason, having given aid and comfort to the insurrection or to the enemies of the Constitution, to paraphrase the language of 3 of the Fourteenth Amendment. The Social Security Trust Hoax Continuing from 1935-2011 is a Void and Illegal Action which Must Be Corrected by Common Law Principles of Disgorgement and Constructive Trust to Preserve and Protect the Validity of the Public Debt (the Full Faith & Credit) of the United States of America What Congress has done in the creation and management of Social Security, over the past 76 years since 1935, as analyzed in this litigation outline proposal, amounts to just as direct and plain a violation of Section Four, Clause 1, of the Fourteenth Amendment, as undertaking to pay the Confederate Debt would have been. Under the Anglo-American Common Law, and indeed under the Roman Civil Law, passed down through the Spanish Empire and Napoleon to modern Europe and Latin America, including Louisiana, all such debts, obligations and claims [as interfere with the Reconstruction of Social Security as a Legitimate Trust accountable to the taxpaying contributors] sh[ould] be held illegal and void. YEA VERILY, I SAY UNTO YOU: CONGRESS IS NOT IMMUNE Yea verily, I say unto you: in 4:1 of the Fourteenth Amendment, in the context of the balance of the Fourteenth Amendment, the Constitution was amended to LIMIT the power of Congress and the United States Government to undertake certain debts, and to take any action such as would undermine the legitimate (i.e. valid) public debt of the United States. Congress and the States, in adopting the Fourteenth Amendment, made both value judgments and political calls, and America decided in 1868 that the integrity of the United States in the future depended on making a decision, a
choice, as to which debts were valid and which were illegal and void, and both the power and immunity of Congress were expressly and directly rolled back and limited in making this choice and decision. Specifically, in Social Security and Medicare Congress has enacted a statute and program which would be void and illegal as a trust at common law. This program has been, from the beginning largely, and now in fact entirely, funded by unmarketable debt, in the form of unmarketable government Treasury Bonds. And these unmarketable government bonds were issued as a pretext for taxing the people when the funds collected as tax were never in fact actually earmarked or delivered into a separate Trust Fund at the Department of the Treasury or anywhere else. Social Security Credits authorized by Congress were, as stated above carried on the books of the Treasury as a separate entity which was funded by the government borrowing from itself. The reasons for this bizarre setup are, to this author at least, utterly incomprehensible, except that Congress wanted to use the funds received in taxes as an open-ended checking account while not actually investing anything other than unmarketable securities in the actual endowment of Social Security. This is classic funny money economics, except that the inflationary consequences and injury to the honor, full faith and credit of the United States are almost incalculable. Congress neither authorized nor permitted any actual segregation of a Social Security or Medicare trust corpus. Social Security tax revenue has apparently always and invariably been mixed and factually maintained as part of the national budget with all other income tax revenue whether carried on PAPER as off budget or on-budget. So at the very best the peoples taxes and contributions paid in good faith reliance were comingled with all other government revenue funds, and treated as a national checking account rather than a trust account, and this was an embezzlement and a fraud in the inducement as well as a breach of fiduciary duty and a denial of the intangible right of the people to honest services (see below). In private trust operations, the known identity of a trustee or group of trustees with actual control over a Trust Corpus insures that if the trustee should ever borrow or make unauthorized disbursements from the trust, that very trustee is obligated to use his own wealth to replenish the trust. Replenishing the $13.8 trillion paid into Social Security which was never placed in a trust fund, which if it had been placed in a trust fund would have yielded a vast, truly astronomical amount of income and appreciation by now. I will leave it to real actuarial accountants and other mathematical
wizards to figure out exactly (or even approximately) what the Social Security Trust Fund SHOULD be worth now, if it had been properly segregated and managed, even minus all earned disbursements.
BECAUSE OF THE PROMISE OF A TRUST FUND, TAXPAYING CONTRIBUTORS HAVE STANDING, AS DO EXPECTED BENEFICIARIES, DEPENDENTS OF CONTRIBUTORS Taxpayer standing has had a weak and nearly fatally flawed history in the United States up until now---quite frankly there is no suggestion of taxpayer standing to sue regarding government expenditures in the United States. For many years, I have been an enthusiastic fan of expanding the Flast v. Cohen doctrine of taxpayer standing in regards to the Establishment Clause of the First Amendment to cover EVERY clause of the Constitution for which there would otherwise be no possibility of enforcement. 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). I have also argued for Ninth Amendment reserved rights standing in such cases. Neither of these doctrines have been wildly successful, by any means, and during the past term (even regarding Establishment Clause cases) the U.S. Supreme Court has further limited the Flast v. Cohen doctrine in Arizona Christian School Tuition Organization v. Winn, 563 U.S. ____ (2011) 3 . But simply put:
3 Justice Anthony Kennedys opinion in the Arizona Christian School Tuition case does provide an interesting supplemental argument regarding the logical link and nexus between government action and injury for Taxpayer Standing. A strong and clear nexus between governmental action and personalized injury is a standard which the Governments Social Security Hoax and subsequent failure to create vested and individually accountable Social Security Trust Funds readily meets: The primary contention of respondents, of course, is that, despite the general rule that taxpayers lack standing to object to expenditures alleged to be unconstitutional, their suit falls within the exception established by Flast v. Cohen, 392 U.S. 83 . It must be noted at the outset that, as this Court has explained, Flasts holding provides a narrow exception to the general rule against taxpayer standing. Bowen v. Kendrick, 487 U.S. 589, 618 (1988) . At issue in Flast was the standing of federal taxpayers to object, on First Amendment grounds, to a congressional statute that allowed expenditures of federal funds from the General Treasury to support, among other programs, instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools. 392 U.S., at 8586. Flast held that taxpayers have standing when two conditions are met. Outline and Background for Complaint on the Public Debt Clause & Social Security 15 August 17, 2011
The first condition is that there must be a logical link between the plaintiffs taxpayer status and the type of legislative enactment attacked. Id., at 102. This condition was not satisfied in Doremus because the statute challenged in that caseproviding for the recitation of Bible passages in public schoolsinvolved at most an incidental expenditure of tax funds. Flast, 392 U.S., at 102. In Flast, by contrast, the allegation was that the Federal Government violated the Establishment Clause in the exercise of its legislative authority both to collect and spend tax dollars. Id ., at 103. In the decades since Flast, the Court has been careful to enforce this requirement. See Hein, 551 U.S. 587 (no standing under Flast to challenge federal executive actions funded by general appropriations); Valley Forge, 454 U.S. 464 (no standing under Flast to challenge an agencys decision to transfer a parcel of federal property pursuant to the Property Clause). The second condition for standing under Flast is that there must be a nexus between the plaintiffs taxpayer status and the precise nature of the constitutional infringement alleged. 392 U.S., at 102. This condition was deemed satisfied in Flast based on the allegation that Government funds had been spent on an outlay for religion in contravention of the Establishment Clause. Id., at 8586. In Frothingham, by contrast, the claim was that Congress had exceeded its constitutional authority without regard to any specific prohibition. 392 U. S., at 104105. Confirming that Flast turned on the unique features of Establishment Clause violations, this Court has declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the Establishment Clause. Hein, supra, at 609 (plurality opinion); see also Richardson, 418 U.S. 166 (Statement and Account Clause); Schlesinger, 418 U.S. 208 (Incompatibility Clause). After stating the two conditions for taxpayer standing, Flast considered them together, explaining that individuals suffer a particular injury for standing purposes when, in violation of the Establishment Clause and by means of the taxing and spending power, their property is transferred through the Governments Treasury to a sectarian entity. 392 U. S., at 105106. As Flast put it: The taxpayers allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Id., at 106. Flast thus understood the injury alleged in Establishment Clause challenges to federal spending to be the very extract[ion] and spen[ding] of tax money in aid of religion alleged by a plaintiff. DaimlerChrysler, 547 U.S., at 348 (quoting Flast, 392 U.S., at 106)). Such an injury, Flast continued, is unlike generalized grievances about the conduct of government and so is appropriate for judicial redress. Id., at 106. Outline and Background for Complaint on the Public Debt Clause & Social Security 16 August 17, 2011
Public Debt Clause Standing as proposed here has almost nothing material or structural in common with taxpayer standing. I submit that every person who has paid Social Security Taxes, and therefore thought he or she was paying into the Social Security Trust Fund, is entitled at Common Law to enforce Clause 4:1 of the Fourteenth Amendment by direct suit, an action for fiduciary accounting at common law, against his or her representatives in Congress. While not even the wealth of the richest Senators (e.g. Californias own Dianne Feinstein [$42.94 million]) and Representatives (e.g. Californias Darrell Issa [$164.7 million] and Jane Harman [$112.13 million]) or Massachusetts John Kerry [$182.755 million] in Congress today could personally cover even a small percentage of the debt owed by the government to their constituents in their respective states, even just counting the period of their terms in office as the basis for disgorgement. However, the Senators and Representatives cooperation in the production of individual beneficiary balance sheets showing how much each individual and family is entitled to receive would likely make these wealthy public servants feel better about themselves when sued and might turn them to the Plaintiffs cause, once a couple of hundred constituent lawsuits were filed, or better yet a couple of thousand. The calculation of such estimate trust wealth is furthermore well within the realm of possibility given Congressional staffs and budgets. Under Declaratory Judgment, as in Bankruptcy Proceedings, Judicial Orders may be entered Compelling the Reevaluation and Prioritization the Debts of a Bankrupt Government This review of the background and outline of a possible legal action regarding the Public Debt Clause started out by quoting the first prong of the Federal Declaratory Judgment Act, which created the remedy where a valid and justiciable case and controversy already exists. It is important to note that once declaratory relief is awarded to a complaining party, the District Courts of the United States also have broad discretion fashion appropriate further relief and remedies. 28 U.S.C. 2202 provides: TITLE 28 > PART VI > CHAPTER 151 > 2202 2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and
hearing, against any adverse party whose rights have been determined by such judgment4. The ultimate incentive each Senator and Representative sued will have to comply with the demand for fiduciary accounting to each suing constituent would be to pass the buck and demand disgorgement from banks and private corporate beneficiaries of illegitimate debt spending to replenish or Reconstruct the Social Security Trust. But the Senators and Representatives will need to participate in the process of tracing funds and prioritizing the obligations of the now---we have to admit it, pretty much totally Bankrupt Government of the United States of America. In the spirit of George H.W. Bush, I think it would be a much kinder and gentler [and much more typically Anglo-American] thing merely to sue our representatives and hold them personally liable for Reconstructing the Social Security and Medicare Trusts, by way of modifying government spending in the interests of compliance with 4:1 of the Fourteenth Amendment, than either the French or Russian-style Revolutionary alternatives of either off with their heads or line them all up by a wall and shoot them.
4 This provision is shorter than but exactly analogous to the remedial section 42 U.S.C. 1988(a) discussed above, on which Federal Bivens actions are modeled, which authorizes the Court to utilize common law remedies. TITLE 42 > CHAPTER 21 > SUBCHAPTER I > 1988 1988. Proceedings in vindication of civil rights (a) Applicability of statutory and common law The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. See also: Rethinking Bivens: Legitimacy and Constitutional Adjudication James E. Pfander and David Baltmanis, The Georgetown Law Journal, Vol. 98:117-151 (2009). http://www.georgetownlawjournal.com/issues/pdf/981/Pfander%2520&%2520Baltmanis.PDF Outline and Background for Complaint on the Public Debt Clause & Social Security 18 August 17, 2011
The best analogy for the litigation process and program here proposed might be an Involuntary Bankruptcy under Chapter 11, where the court presiding would listen to the claims of the millions of creditors who have contributed to Social Security and been denied an accounting of the full measure of the benefits to which they were entitled. When the Social Security Trust fund is found to be devoid of equities of any kind, or marketable debt securities of any kind, those funds may need to be replenished by reversing transactions, reversing transfers of funds, perhaps extending over the past twenty-five or more years, but as much as necessary, to unravel the grants given to Banks and other Financial institutions not just in the recent bailouts relating to mortgages but also in the 1980s-90s Savings & Loan crises and bailouts. Who knows what would be necessary for the United States Government to sell to restore the integrity of Social Security and Medicare. We might even have to withdraw our armed forces from the entire Middle East and return the sovereignty of Afghanistan, Iraq, and Libya to the people of those countries. We might have to withdraw our protection from the Kings of Saudi Arabia and Kuwait and leave those archaic monarchies to fend for themselves. The U.S. Government might have to divest itself utterly of Amtrak and General Motors, of its 79.9% controlling interest in FNMA, GNMA, and FHLMC (Fannie Mae, Ginnie Mae and their triplet sibling Freddie Mac), or any or all of the other approximately 150 government owned corporations, including even Sacred Cows such as the Federal Deposit Insurance Corporation, the St. Lawrence Seaway Development Corporation and the sanctum sanctorum Tennessee Valley Authority. Maybe the Federal Government would have to stop promoting the destruction of civil liberties in the States by funding the overstaffing of unnecessary police departments and the construction of corporate welfare prison construction projects and FEMA camps. (As of the end of January 2010, Federal subsidies to state and local government had increased 1173% since Flemming v. Nestor authorized the termination of vested rights under social security because no property rights were involved in 1960). In any event, utilizing bankruptcy principles to prioritize debts would surely exalt the fiduciary obligations and promises of the government to the people over all other programs, especially corporate welfare and federalstate revenue sharing. One must ask why would the salvage of any privately held company EVER more important than to honor than the fiduciary commitment to create a trust with the $13.8 billion taken from the American
people by taxation which was politically sold to the people by a massive and unstoppable scheme to fraud?
CONCLUSION: A Broader Perspective on the Validity of Government Debts And, indeed, every member of both houses of Congress has utilized the mail and interstate wire services to communicate with their constituencies about the social security entitlement under the Budget Crises of 2011-2012. Thus, in addition to multiple breaches of fiduciary duty, embezzlement, fraud in the inducement, and fraud in the execution and management of the Social Security Trust, members of Congress could well be held criminally liable for violations of at least one section of the mail fraud statute, 18 U.S.C. 1346, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services. Even under Article I, 6:3, members of Congress were not immune for arrest for treason, felony, and breach of the peace, and all violations of the mail fraud statute are clearly felonies, whether or not the entire Social Security Scheme be considered Treason or not. In regard to the concept of Treason, however, it is worth noting a recent book by Vincent Bugliosi: The Prosecution of George W. Bush for Murder. In that book, Bugliosi mentions in passing the trillion dollar cost of the war, but also makes it clear that, far from vanquishing any real foes of the United States or the American people, the War in Iraq---now accompanied by President Barack Hussein Obamas War in Libya as well as the continuing conflict in Afghanistan, has given substantial aid and comfort to such enemies, by casting the American troops in the role of modern day recidivist war criminals. Is it likewise Treason for Congress to continue to plunge the United States deeper and deeper into the illegitimate abyss of invalid debt necessary to further this Treason? According to Wikipedia: The costs of the War on Terror are often contested, as academics and critics of the component wars (including the Iraq War) have unearthed many hidden costs not represented in official estimates. The most recent major report on these costs come from Brown University in the form of the Costs of War project, which said the total for wars in Iraq, Afghanistan, and Pakistan is at least $3.2-4 trillion. The report disavowed previous estimates of the Iraq War's cost as being under $1 trillion, saying the Department of Defense's direct spending on Iraq totaled at least $757.8 billion, but also highlighting the complementary costs at home, such as interest paid on the funds
borrowed to finance the wars and a potential nearly $1 trillion in extra spending to care for veterans returning from combat through 2050. http://en.wikipedia.org/wiki/Financial_cost_of_the_Iraq_War. Widespread Public Awareness that $13.8 trillion has been stolen from the American People could be Hazardous to the Health of those in Government The Judicial System in the Anglo-American world evolved steadily from the time of the Saxon Kings Aethelbert and Eadric of Kent, Offa of Mercia, Ine and Alfred-the-Great of Wessex through the time of King John and Magna Charta up to the English Bill of Rights in 1689 and its American Equivalent a Century Later to replace the Germanic & Viking world-systems of trial-by-combat, trial-by-ordeal, and bloodfeuds with what we now call due process of law. In sum, the English legal system came into being to curb and replace the violent resolution of disputes. The English-speaking people have never suffered through any expressly revolutionary bloodbaths remotely comparable to the French and Russian Revolutions of 1789 and 1917. Still, the bloodiest conflict in American History, the War Between the States of 1861-65, which has been called Americas Trial-by-Battle 5 , had many of the characteristics of a revolutionary war, and was fought largely on the political premise (or pretext) of constitutional rather than strictly economic issues. It cannot escape the serious student of history that it one of the principal causative events in America Trial-by-Battle arose in the United States Supreme Courts distinctly un-Solomonic decision in the Dred Scott Case, Scott v. Sanford, 60 U.S. 393 (1857) which triggered the polarization of opinion between pro-Slavery and Abolitionist factions and between the Northern and Southern States. Thus, in this case, perhaps inevitably, perhaps not, the American Courts failed in their duty to keep the peace, and in fact Chief Justice Taney bears at least some of the blame for the 625,000 war deaths which followed (not counting civilian death from disease or malnutrition in the South). The lesson is that the role of the Courts in our system of government is critical, and the willingness of the Government to
5 Cynthia Nicoletti, The American Civil War as a Trial by Battle, Law and History Review, February 2010, Volume 28, No. 1: 71-110 (the American Society for Legal History, Inc., Cambridge University Press). Outline and Background for Complaint on the Public Debt Clause & Social Security 22 August 17, 2011
accept responsibility for mistakes and wrongdoing is a key element in keeping the peace. The American Government has lied to the people about Social Security from the beginning: they called it a Trust Fund, but it was never a Trust Fund. The American Government has lied to the people about Medicare. They said it was managed together with Social Security as Trust, but it never was. Every American who ever paid into the system directly, or was the dependent of any American who ever paid into the system directly is entitled at common law to an individualized accounting and disgorgement (or restoration---in the spirit of the Fourteenth Amendment the Reconstruction) of the Constructive Trust which is the best substitute available for the genuine trust would have existed had Social Security and Medicare been enacted honestly and structured properly according to common or civil law principles of fiduciary management and accounting. The United States Government is effectively bankrupt. This has been true in terms of real money for years, but the application of Keynsian economics and ponzoid-pyramid schemes of perpetual inflation ever widening at the bottom while growing taller and taller has disguised the reality. Since Congress seems not to know what principles to apply, or even that a serious problem exists, invocation of a judicial remedy seems appropriate, and in the best of the Anglo-American cultural tradition of moderation through the rule of law. Application of common law principles, as is routinely done in Bankruptcy Court, is also authorized both implicitly by the general declaratory judgment statute and by the express terms of 42 U.S.C. 1988(a) on which the Bivens action is modeled. At the very least, a nationwide campaign of lawsuits outlined along the terms suggested here would awaken Congress and the Executive Branch to the true nature of the Social Security Trust Fund Hoax and Fraud that has been perpetrated on the American People. By way of remedy, everyone in the United States would either obtain an accurate estimate or an actual accounting of the value of their investments in Social Security and Medicare. If enough people joined in, Congress might well undertake the mammoth, but entirely worthy, task of paring down the U.S. Government to a situation whereby the Social Security and Medicare Trusts can be honestly and fully reconstructed, and restructured as true or genuine trusts where each individual taxpayer purchases a property interest in a real trust corpus which will be vested to him or her for life.
I honestly take no position on the debate whether Social Security should be privatized or not---no matter who operates it, it must be run according to the rules of common law fiduciary standards exactly along the lines used in the private insurance industry. If the government can learn to live by the law then the government may perhaps retain control of social security. If this is impossible, if politics and fiduciary duty and sound, honest management are indeed unmixable, then the privatization option must needs be considered. The actual complaint, even with multiple governmental defendants and several common law causes of action might not be as long as this Background and Outline, which nevertheless provides the argument and analytical framework for defending the lawsuit and complaint once filed.

Outline Public Debt &amp Ss Complaint - Draft 08-17-2011

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Outline Public Debt &amp Ss Complaint - Draft 08-17-2011

Transféré par

Droits d'auteur :

Formats disponibles

OUTLINE AND BACKGROUND FOR COMPLAINT: IS CONGRESS IMMUNE FROM SUITS TO QUESTION THE VALIDITY OF THE PUBLIC DEBT

Vous aimerez peut-être aussi