Mexican immigrants who illegally worked in the United States would have a stronger claim to U.S. Social Security benefits under a totalization agreement with Mexico than what U.S. citizens enjoy.  This disturbing finding is from a new legal analysis performed for The Senior Citizens League (TSCL) of the pending U.S.- Mexico Totalization Agreement.

The pending totalization agreement has been signed by both the Mexican and U.S. Social Security Administrations, but has not yet been sent to Congress for approval.  It provides Mexican beneficiaries with a contractual promise made between the government of the United States and the government of Mexico, the legal analysis says.

Sign TSCL's petition to put a stop to the pending U.S.-Mexico Totalization Agreement!

Yet no such contractual promise exists for U.S. citizens today, who have no legal recourse to any of the payroll taxes they pay into Social Security.  The 1960 Supreme Court case, Flemming vs. Nestor, established the principle that entitlement of U.S. citizens to Social Security benefits is not a contractual right.  Section 1104 of the 1935 Social Security Act specifically said: “The right to alter, amend, or repeal any provision of this Act is hereby reserved to the Congress.”

The League’s legal research and analysis found that as beneficiaries under the pending totalization agreement, Mexican workers would have legally enforceable rights in U.S. courts to obtain their benefits — rights that US citizens do NOT have.

The analysis is sure to spark widespread and heated controversy.  At issue is whether the agreement with Mexico would provide U.S. Social Security benefits to millions of Mexican immigrants, and their families, who worked here illegally.

Despite a 2004 law that prohibits the payment of Social Security benefits to illegal immigrants, a non-citizen may receive benefits, including benefits based on illegal work, if he or she meets one of the exceptions to the law.  One of those exceptions applies to individuals who are residents of a country with which the United States has a totalization agreement.  Under the agreement it appears that all illegal Mexican workers would have to do is to return to Mexico and file a claim for benefits.

Totalization agreements allow workers who divide their careers between the United States and the other nation to earn generic work “credits” good for receiving benefits in either nation.  These credits can be totaled together, in order for the individual to become entitled to benefits.  When this occurs the Social Security Administration counts all earnings, even for work performed illegally.

TSCL supports two pieces of legislation in the Senate to address totalization issues:  S. 42 introduced by Senator John Ensign, and S. 115 introduced by Senator David Vitter.  TSCL also supports two bills in the House:  H.Res. 394 introduced by Representative John Culberson, and H.R. 160 introduced by Representative Ron Paul.

H.Res. 394 expresses disapproval of the Social Security totalization agreement between the U.S. and Mexico and would block it from taking effect, and the related measure, H.R. 160, The Social Security for Americans Only Act, would not allow self- employed income and wages earned while illegal to be credited for claiming benefits.

To learn more about the Supreme Courts Flemming vs. Nestor decision visit:
http://www.ssa.gov/history/nestor.html.

Sources:  “U.S./ Mexican Totalization Agreement — Legal Basis for Superior Right to Social Security Benefits of Illegal Aliens Over American Citizens,” for TSCL, June 24, 2009.