IN RE:  UNITED STATES/MEXICO
SOCIAL SECURITY TOTALIZATION AGREEMENT
________________

A Petition for Redress of Grievances
Submitted on Behalf of its More Than
1.3 Million Supporters
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Petitioner
TREA SENIOR CITIZENS LEAGUE
909 N. Washington St., Suite 300
Alexandria, Virginia 22314
(703) 548-5568

________________

BY ITS BOARD OF TRUSTEES

RALPH MCCUTCHEN
FRED ATHANS
THOMAS J. O’BRIEN
NASH MINES
DANIEL J. O’CONNELL

January 25, 2006

 
TO THE UNITED STATES CONGRESS:

A PETITION FOR REDRESS OF GRIEVANCES
CONCERNING A PROPOSED SOCIAL SECURITY
TOTALIZATION AGREEMENT BETWEEN
THE UNITED STATES AND MEXICO

STATEMENT OF PETITIONER

I.  The Petitioner

 Petitioner is a non-profit, non-partisan, independent seniors’ education and advocacy organization, representing the interests of older Americans, supporting and assisting them in protecting and defending their rights and freedoms as United States citizens and the benefits they as senior citizens have earned and for which they have paid.

II.  The Petitioner’s Interest
 Petitioner’s 1.3 million supporters, as well as all American citizens and legal immigrants, have a vested interest in the continued financial integrity of the United States Social Security program and its Trust Funds.

III.  The Petitioner’s Concern
 Petitioner is greatly concerned with all government policies and practices affecting the Social Security program, including the policies and procedures by which the United States enters into international Social Security “totalization agreements” with other nations, as well as the impact of those agreements on the United States Social Security benefit program and its Trust Funds.  Petitioner has special concern for the policies and procedures by which the United States Commissioner of Social Security and the Director General of the Mexican Social Security Institute negotiated and signed a proposed Social Security totalization agreement between their respective countries, as well as the policies and procedures by which this proposed Totalization Agreement may become effective.

IV.  The Petitioner’s Efforts
 Pursuant to its concerns about the potentially adverse impact that the proposed U.S./Mexico Totalization Agreement may have on Social Security benefits and the Trust Funds, Petitioner on two occasions has requested, under the Freedom of Information Act (FOIA), that the United States Social Security Administration and United States Department of State produce certain documents and records pertaining to the proposed U.S./Mexico Social Security Totalization Agreement.

STATEMENT OF GRIEVANCE
V.  The Government’s Response
 Pursuant to Petitioner’s first FOIA requests, dated August 4, 2003, the Social Security Administration and State Department released only 20 documents consisting of 133 pages, most of which were available to the public on the Internet, while withholding at least 43 documents — including the proposed U.S./Mexico Totalization Agreement, itself — claiming the documents to be exempt from mandatory disclosure under FOIA.  The most recent requests for documents, dated May 6, 2005 (along with followup letters dated August 19, 2005 and Administrative Appeals dated January 19, 2006), have produced no documents whatsoever.

VI.  The Social Security Administration’s
June 2004 Press Release

 In June 2004, the United States Social Security Administration (SSA) announced publicly that the U.S./Mexico Totalization Agreement already had been “signed,” and is awaiting the President’s decision to submit the Agreement “to Congress where it must sit in review for 60 session days,” and “[i]f Congress takes no action during this time, the agreement can move forward” for implementation.

VII.  The Social Security Administration’s Claims

 In its June 2004 press release, the SSA publicly represented that: 

 (a) the proposed Totalization Agreement with Mexico would “save U.S. workers and their employers about $140 million a year in Mexican social security and health insurance taxes over the first 5 years of the agreement”;

 (b) “Social Security actuaries estimate that a totalization agreement with Mexico would have a negligible long-range effect on the Trust Funds”; and

 (c) “[c]osts to the U.S. Social Security system are estimated to average about $105 million per year over the first 5 years.”

VIII.  The General Accounting Office Study of the
SSA Policies and Procedures Pertaining to the
Proposed U.S./Mexico Totalization Agreement

 Prior to the SSA June 2004 press release, and in response to a request from members of Congress, the General Accounting Office (as of July 7, 2004, renamed as the Government Accountability Office) (GAO) conducted a study of the SSA policies and procedures that led to the proposed U.S./Mexico Totalization Agreement.  On September 30, 2003, GAO issued its findings.

IX.  The GAO Findings:
The SSA Totalization Review Process

 In its September 30, 2003 report, the GAO found that: 

 (a) the “SSA’s process for developing [totalization] agreements is not thorough or well-documented,” and “[b]ecause all totalization agreements represent a financial commitment with implications for social security tax revenues and benefits outlays, a reasonable level of due diligence and analysis is necessary to help federal managers identify issues that could affect benefit payment accuracy or expose the nation’s system to undue risk”; and

 (b) prior to negotiating the U.S./Mexico Totalization Agreement, the SSA followed this “informal” process of evaluation of the integrity and compatibility of the Mexican social security system, (i) taking “no technical staff” on its visit to Mexico “to  assess system controls or data integrity processes” and (ii) only “briefly observ[ing] the operations of the Mexican social security program,” (iii) “despite documented concerns among Mexican governmental officials and others regarding the integrity of Mexico’s records, such as those for birth, death, and marriage,” all of which (iv) “play a role in SSA’s ability to accurately determine Mexican workers’ initial and continued eligibility for benefits under a totalization agreement.” 

X.  The GAO Findings: 
SSA Totalization Short-Run Cost Estimates

 In its September 30, 2003 report, the GAO found: 

 (a) that the proposed U.S./Mexico Totalization Agreement “will increase the number of Mexican citizens who will be paid U.S. social security benefits,” in that it will (i) “make it easier for Mexican workers to qualify for benefits” and (ii) “remove some nonpayment restrictions that affect benefit payments to non-U.S. citizens’ family members residing in another country,” both of which will (iii) redound to the benefit of “Mexican citizens who are not lawfully present in this country [who] can receive social security benefits earned through unauthorized employment if they later return to Mexico”; and

 (b) that, because of its reliance upon “poor data” concerning the large number of unauthorized Mexican workers among these beneficiaries, SSA’s short-run cost estimates to the United States Social Security system are (i) “highly uncertain,” and (ii) as has been the case with prior totalization agreements, actual costs will most likely “far exceed ... original actuarial estimates.”

XI.  GAO Findings:
SSA Long-Range Cost Estimates

 With respect to the SSA’s assurance that the U.S./Mexico Totalization Agreement would have “a negligible effect on the [U.S. Social Security] trust funds,” GAO found: 

 (a) that the SSA forecasts concerning long-run costs were “highly uncertain” because of (i) unreliable data on “the number of unauthorized Mexican immigrants living in the United States,” (ii) the failure to “include unauthorized Mexican workers and family members who no longer live in the United States” in estimates, and (iii) disregard of the likelihood that the totalization agreement “would create an additional incentive for unauthorized workers to enter the United States to work and maintain documentation to claim their earnings under a false identity”; and

 (b) that SSA forecasts of the “long-term impact” of previously negotiated totalization agreements “on the actuarial balance of the trust funds” have “frequently” been “underestimated by more than 25 percent” — indeed, by “huge differences ... involving several orders of magnitude” — a difference that is likely to be much higher with respect to the U.S./Mexico Totalization Agreement because of the greater number of unauthorized Mexican workers in the United States.

XII.  The GAO Conclusion:
The U.S./Mexico Totalization Agreement
is Unduly Risky and Costly

 In light of its findings, the GAO concluded that: 

 (a) any proposed totalization agreement between the United States and Mexico “presents unique and difficult challenges for SSA because so little is known about the size, work history, earnings, and dependents of the unauthorized Mexican population”;

 (b) “a common border and economic disparity between the United States and Mexico have fostered significant and longstanding unauthorized immigration into the United States, making an agreement with Mexico potentially far more costly than any other”;

 (c) “current solvency issues” pertaining to the U.S. Social Security program and its Trust Funds “require Congress to think carefully about future trust fund commitments resulting from totalization agreements”; and

 (d) “a totalization agreement with Mexico is both qualitatively and quantitatively different from any agreement signed to date, especially regarding estimating the potential impact of millions of unauthorized workers and their families.”

XIII.  SSA is Nevertheless Pressing Forward
With the U.S./Mexico Totalization Agreement

 Despite the shortcomings documented by the GAO in its 2003 report, the SSA (A) has not changed its short-run or long-run cost estimates and (B) is pressing forward with the requisite executive department review of the U.S./Mexican Totalization with the goal of having the agreement submitted by the President to Congress.

XIV.  The President’s Position
 On January 7, 2004, President George W. Bush announced that, as part of his proposed “guest worker” program addressing the problem of illegal Mexican immigration into the United States, he favors “financial incentives” for temporary Mexican “workers to return to their home countries after their period of work in the United States expires” and, to that end, the President has pledged to “work with foreign governments on a plan to give temporary workers credit, when they enter their own nation’s retirement system, for the time that they worked in America,” indicating thereby his support for the transmission of the U.S./Mexico Totalization Agreement to Congress together with a “report on the estimated individuals who will be affected by the agreement and the effect of the agreement on the estimated income and expenditures of” the Social Security program.

XV.  The Congress’s Position

 Once the President submits the proposed U.S./Mexico Totalization Agreement and Report to Congress, the agreement will become effective if one house of Congress does not act by Resolution disapproving the agreement within a 60-day period during which one house of Congress has been in session on each of 60 days following the submission of the agreement.

XVI.  U.S. House of Representatives:  H. Res. 20
 On January 4, 2005, “pursuant to section 233(e)(2) of the Social Security Act,” Representative J.D. Hayworth (R-AZ) (currently, there are 40 co-sponsors) introduced House Resolution 20 stating that “[T]he House of Representatives hereby disapproves the agreement establishing totalization arrangements between the social security system established by title II of such Act and the social security system of Mexico, signed by the Commissioner of Social Security and the Director General, Mexican Social Security Institute, on June 29, 2004,” which proposed resolution was, on January 4, 2005, referred to the House Committee on Ways and Means and, on January 25, 2005, was referred to the Ways and Means Subcommittee on Social Security, but no further action has been taken.

XVII.  U.S. House of Representatives:  H. Con. Res. 50

 On February 9, 2005, Representative Virgil Goode (R-VA), with 25 co-sponsors (currently, there are 36 co-sponsors), introduced House Concurrent Resolution 50, expressing disapproval of “the totalization agreement between the United States and Mexico signed by the Commissioner of Social Security and the Director General of the Mexican Social Security Institute on June 29, 2004,” and by proposed Resolution of the House of Representatives (the Senate concurring) stated that it is “the sense of Congress that — (1) the President should immediately disapprove the totalization agreement signed by the Commissioner of Social Security and the Director General of the Mexican Social Security Institute ..., and refrain from transmitting such agreement to the Congress and (2) the Commissioner of Social Security should withdraw from any further negotiations with Mexico relating to totalization arrangements between the United States and Mexico,” which proposed concurrent resolution was referred, on February 17, 2005, to the Ways and Means Subcommittee on Social Security, but no further action has been taken.
XVIII.  U.S. House of Representatives:  H.R. 858

 On February 16, 2005, Representative Ron Paul (R-TX), with six co-sponsors (currently, there are 10 co-sponsors), introduced H.R. 858 which, if enacted into law, would prevent social security credit from being given to those who work in the United States while not a United States citizen or national, and would terminate all existing totalization agreements currently in effect no later than December 31, 2005, and which, on March 3, 2005, was referred to the House Ways and Means Subcommittee on Social Security, but no further action has been taken.

XIX.  U.S. Congress:  H.R. 3010

 On June 24, 2005, the House of Representatives passed H.R. 3010 — the Fiscal Year 2006 Labor/Health and Human Services/Education Appropriations Bill — containing a provision that “[n]one of the funds appropriated by this Act may be used by the Commissioner of Social Security or the Social Security Administration to pay the compensation of employees of the Social Security Administration to administer Social Security benefit payments under a totalization agreement with Mexico which are inconsistent with federal law.”  Currently, this bill has been passed by the United States Senate with amendments and is in conference.

XX.  The U.S./Mexico Totalization Agreement Rests upon Inadequate and Flawed Policies and Procedures

 According to the 2003 GAO report, the policies and procedures developed by the SSA in the development and administration of agreements establishing totalization agreements with other countries, including the U.S./Mexico Totalization Agreement, are inadequate to:

(a) carry out the purpose of such agreements, as established by statute;

(b) assess the risks associated with such agreements; and

(c) manage the administration of such agreements.

XXI.  The Statute Providing for the
U.S./Mexico Totalization Agreement is Unconstitutional

 The procedure prescribed in 42 U.S.C. Section 433 by which the proposed United States/Mexico Totalization Agreement is made effective violates the following provisions of the United States Constitution: 

 (a) Article II, Section 2, in that it fails to comply with the constitutional provision whereby a treaty becomes law only by the concurrence of a two-thirds vote of the Senate;

 (b) Article I, Section 8, Clauses 1, 3, and 18, and Article I, Section 9, Clause 7, whereby no appropriation for the general welfare or regulation of foreign commerce may be made without a majority vote of both houses of Congress; and

 (c) Article I, Section 7, Clause 2, whereby no action may become law without passing both the House and the Senate and without presentment to the President for his approval or veto.

XXII.  The U.S./Mexico Totalization Agreement Threatens the Financial Stability and Integrity of the United States Social Security System and the Rule of Law

 The United States/Mexico Totalization Agreement threatens the financial integrity, stability and vitality of the Social Security program and its Trust Funds by its inclusion of unauthorized Mexican workers and their families, thereby undermining the rule of law governing immigration into the United States and breaching the trust of American citizens and lawful immigrants in the Social Security benefits system into which they have faithfully paid.

PRAYER FOR REDRESS 

 Petitioner respectfully requests that the Congress of the United States take immediate action, as follows: 

 (a) by House Concurrent Resolution 50, inform the President that it is the sense of Congress that the President not submit the U.S./Mexico Totalization Agreement to Congress for review as required by 42 U.S.C. Section 433(e)(1);

 (b) by House Resolution 20 in the House, and/or by an appropriate resolution in the Senate, preemptively disapprove the U.S./Mexico Totalization Agreement pursuant to 42 U.S.C. Section 433(e)(2); and

 (c) by an appropriate bill, repeal 42 U.S.C. Section 433 in its entirety as violative of Article I, Section 7, Clause 2, Article I, Section 8, Clauses 1, 3 and 18 and Article I, Section 9, Clause 7, as well as the treaty approval procedure prescribed by Article II, Section 2, of the United States Constitution.

   Respectfully submitted,

   TREA SENIOR CITIZENS LEAGUE
   BY ITS BOARD OF TRUSTEES
   RALPH MCCUTCHEN
FRED ATHANS
THOMAS J. O’BRIEN
NASH MINES
DANIEL J. O’CONNELL

Counsel for TSCL
WILLIAM J. OLSON
JOHN S. MILES
HERBERT W. TITUS
JEREMIAH L. MORGAN
WILLIAM J. OLSON, P.C.
8180 Greensboro Drive, Suite 1070
McLean, Virginia 22102
(703) 356-5070

January 25, 2006

 Note:  TSCL has prepared a brief in support of its petition which is available upon request to TREA SENIOR CITIZENS LEAGUE, 909 N. Washington St., Suite 300, Alexandria, Virginia 22314.  (703) 548-5568

March 2006