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By Hank Greely, a professor of law and genetics at Stanford University, and director of both The Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society.

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I was shocked last week when I learned that Judge Royce Lamberth had enjoined federal support for human embryonic stem cell (hESC) research. As a lawyer, I was even more shocked when I read the opinion, which seems to me, when considered solely as a legal matter, clearly wrong.

Last week's decision came on the plaintiffs' motion for a preliminary injunction. The law allows a judge to issue a preliminary injunction when the moving party establishes, in Judge Lamberth's words:

(1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

In this case, the merits turn on the so-called Dickey-Wicker amendment. This amendment was first added to the HHS appropriations bill in 1996. Appropriations bills are good for only one year, so every year from 1996 to the present, Congress has added essentially the same language to the relevant appropriations bill. The current version, adopted as part of the fiscal year 2009 Omnibus Appropriations Act, states:

(a) None of the funds made available in this Act may be used for-- . . .
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death . . . .

For 11 years, the Clinton, Bush, and Obama administrations have agreed that this language allows funding of research using hESC lines as long as that funded research project does not itself destroy embryos. Judge Lamberth held that the language not only prohibited government funding of any hESC research, but did so clearly and unambiguously.

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

In 1996, this interpretation might have been reasonable, though, I believe, still wrong. In 2010, the decision is clearly and unambiguously wrong, for at least three reasons.

First, Judge Lamberth's decision is wrong because it does not understand the nature of government funding of scientific research, today or in 1996. The NIH does not say "Here's a pool of $100 million for hESC research; come and get it." It says "Please write us a long and complicated application for a grant to do a specific piece of research and if, against long odds, we accept your grant, we'll give you some money to do the work you said you would do." What the NIH funds are "pieces of research," as defined by grant applications. The Guidelines at issue do not allow the destruction of embryos as one of the actions to be undertaken as part of any grant they fund.

Second, this is not 1996. James Thomson of the University of Wisconsin did not announce the first successful hESC derivation until November 1998. In January 1999 HHS concluded that Dickey-Wicker forbade only funding specific research in which embryos were destroyed (or threatened), but allowed funding of research with hESC lines that had been created as part of some other work. HHS has maintained this position for 11 years, through three very different administrations. This is evidence against Judge Lamberth's conclusion that the language of the amendment is clear. If his reading of the language is unambiguously right, why did three very different administrations reject it? And if the language is, in fact, unclear, then under governing administrative law, the Chevron doctrine, the judge has to defer to the interpretation placed on the statute by the government agency charged with administering it - HHS.

Third, the version of Dickey-Wicker that Judge Lamberth was supposed to apply was passed in 2009 . . . by a Congress that had, for ten years, seen those three administrations interpret the rider to mean that HHS could fund hESC research, but not direct embryo destruction. If Congress had disagreed with that interpretation, it could have changed the wording of the following year's Dickey-Wicker amendment to make that disagreement clear. It did not. In fact, twice Congress passed new legislation to overturn President Bush's relatively restrictive policy on use of federal funding, only to see its bills vetoed. These facts make it very odd indeed to interpret the action of Congress in passing the 2009 version of this rider as clearly rejecting federal funding for any hESC research.

Judge Lamberth's conclusion that the plaintiffs have shown they are likely to win at trial seems the most important part of his holding, but, remember, to grant a preliminary injunction, he must find that the plaintiffs have shown that they would suffer irreparable injury without an injunction, that they other parties would not be substantially injured by an injunction, and that the injunction would further the public interest. His decision on those points also seems wrong.

Finally, the operative part of this decision, like any judicial decision, is the order that accompanies it. His order is both short and confusing.

ORDERED that defendants and their officers, employees, and agents are enjoined from implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research, 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines.

And what does that mean? It surely means that the NIH cannot issue new grants for such research, but it has already issued many grants, both under the Bush Administration policy and, already, under the expanded Obama Administration policy. What happens to them? NIH has announced its preliminary interpretation of the order - all existing grants continue up until the moment of their renewal date, no pending grants will be considered - but it is not clear that the NIH interpretation is correct.

Judge Lamberth's opinion is disappointingly bad. I do not know Judge Lamberth and I do not know whether this decision is the result of bias or whether it is just an example of the occasional bad opinion one must expect from even a good judge. Either way, I hope - and expect - that the District of Columbia Circuit will quickly first stay the order and then reverse the decision.

A longer version of this discussion is available at Stanford Law School's The Center for Law and the Biosciences blog.

Seven states suing to overturn President Barack Obama's health care law have nonetheless claimed subsidies available under the law for covering retired state employees, the Associated Press reports.

The states, Arizona, Idaho, Indiana, Louisiana, Michigan, Nebraska and Nevada, are among 16 approved, along with about 2,000 private employers, for funds to defray the cost of early retiree health insurance, according to a list released Tuesday.

Some 20 states are challenging as unconstitutional the health care law's requirement that individuals carry health insurance or face a fine. The administration has countered that the law is valid under the Constitution's commerce clause and its tax and spend clause.

A spokeswoman for Indiana Gov. Mitch Daniels said while Daniels disagrees with the law, he will nonetheless take advantage of provisions that benefit the state.

"Indiana will seek funds that help Hoosiers when there are no complicated strings or costs attached," press secretary Jane Jankowski told the AP.

HHS Sec. Kathleen Sebelius said individuals between ages 55 and 64, who do not yet qualify for Medicare, make up one of the most vulnerable populations in the health insurance market, and private companies have significantly reduced coverage of early retirees over the past 20 years. The retiree assistance is temporary relief until the health care law is fully in place in 2014.

For more analysis on the constitutionality of the shared responsibility provision, see this ACS Issue Brief by Simon Lazarus, public policy counsel for the National Senior Citizens Law Center.

You can also watch a panel discussion on the health care reform law's constitutionality from the ACS 2010 National Convention here. We talked with Lazarus about the states' challenges to the law following his participation on the panel.

The Supreme Court opinion in Citizens United, which gives corporations unfettered ability to pump millions into electioneering, is emblematic of a narrow high court majority that is actively advancing corporate interests, Sen. Sherrod Brown told a gathering of law students at the Ohio State University Moritz College of Law.

In his speech, hosted by the law school's ACS law student chapter and the ACS Columbus Lawyer Chapter, Sen. Brown focused on progressive periods in the nation and how they produced lasting advancements for civil rights and economic justice. For instance, he lauded three years in the 1960s as "probably the best three years Congress has every had - 1964, 5 and 6, when Congress and a new president, President Johnson, passed Medicaid, Medicare, the Wilderness Act, and the Economic Opportunity Act, including Head Start; passed the Civil Rights and Voting Rights acts." But Brown said that progressive era resulted in pushback from voters who apparently thought Congress moved too quickly, yet enjoyed the benefits of those laws for many years to come.

He said the current progressive era is receiving enormous pushback from corporate interests. The financial reform package that was recently passed did so over intense corporate interest lobbying - a million per day - Brown maintained. And in Citizens United v. FEC, a slim, but radical, majority of the Supreme Court issued a ruling that will further embolden corporate interests, the senator said.

Brown noted, "For years, all we've heard over and over again from conservatives is that the courts have taken an activist role; that thirty-year drumbeat ... from conservatives is that we shouldn't make laws from the bench, that liberal courts are making law from the bench, this activism from the judiciary is bad for the country." He said that refrain from conservatives has been heard often, "ad nauseam."

"But," Brown continued, "there was really no better example of an activist judiciary legislating from the bench than the Citizens United case. It was a narrow Supreme Court ruling from a radical majority; a majority that always, always, always puts corporate interests in front of everything else."

The Citizens United decision, "will clearly allow corporations to have an even larger influence in our political system," the senator said. Video of Brown's comments is available here or by clicking the picture (right). Video of the entire event, including a question-and-answer session with Brown, is here.

 

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By Sonja Ralston, a judicial law clerk to the Hon. Guido Calabresi of the United States Court of Appeals for the Second Circuit. Ralston taught bilingual first grade prior to law school, and has published several scholarly papers on education law.

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On Tuesday, the federal Department of Education announced the winners of the final round of its Race to the Top program. Nine states and the District of Columbia join Delaware and Tennessee, which won the first round in April. All told, forty-six states and the District of Columbia competed for a share of the $4 billion in prize money to implement comprehensive education reform plans, making it the largest state-based "competitive, discretionary grant" - in short, prize - in national history.

Though prizes are not an entirely new means of governing (in 1714, Parliament established the Longitude Prize to develop accurate measures of longitude on the open water and awarded £100,000 over fifty years), the Obama administration has newly emphasized competitive grants. But even among the administration's prize programs, Race to the Top is special: unlike the Longitude Prize or the Department of Energy's prizes for energy-efficient light bulbs and better batteries, the goal is to spur policy rather than technological innovation. Therefore, it invites states rather than individuals, companies, universities, or cities to compete.

Race to the Top represents a new approach to federalism: one that strikes a better state/federal balance in substantive policymaking than traditional spending programs while simultaneously doing more to leverage the impact of federal dollars.

In terms of the balance of policymaking, Race to the Top puts more power in the hands of states than other federal education programs. Overall, the federal government provides around 10 percent of K-12 public education spending each year, but that funding is overwhelmingly concentrated in two areas: aid to high-poverty school districts under Title I of the Elementary and Secondary Education Act (ESEA) and aid to school districts for the education of students with disabilities under the Individuals with Disabilities Education Act (IDEA). In each of these block grant programs, Congress, not the states, decides how the money will be spent. For example, IDEA sets very specific standards for what counts as a disability, how students with disabilities must be accommodated in schools, and what procedures schools must follow.

In contrast, Race to the Top gives states greater discretion over how to spend the funds. Fifty percent of any Race to the Top award can be distributed as the state sees fit, within guidelines that are so loose that a state could comply by spending the money on essentially any education program. Additionally, the 500-point rubric for awarding Race to the Top grants has dozens of subcategories, allowing states to pick what reform issues to focus on. As a result, each state's application proposes a different approach to improving education. Race to the Top thus gives real meaning to the cliché, "laboratories of democracy."

Under Race to the Top, states, not the federal government, set policy even when uniformity is important, as it is for learning standards. Under the Race to the Top rubric, a state received up to 40 points for joining "a consortium of States that . . . develop[s] and adopt[s] a common set of K-12 standards." The federal Department of Education did not write the standards; it didn't even establish the group that wrote the standards. The National Governors' Association took the lead, starting last summer, and published the Common Core Standards this June, which forty-eight states (and the District of Columbia) helped develop and thirty-five (and the District) have already adopted.

Prizes also have the potential to leverage federal dollars. Consider the now-familiar Ansari X Prize. It awarded $10 million to the company that first produced a private manned spacecraft, whereas competitors spent over $100 million. The $4 billion the federal government is spending on Race to the Top is only around 25 percent of what it spends every year on Title I. Yet unlike other small programs, which are pilot projects only implemented in a small percentage of schools or districts, the process of merely applying for Race to the Top led to changes in the laws of nearly every state, from lifting caps on the number of charter schools to eliminating data firewalls.

Race to the Top gives the federal government more bang for its buck than most education spending. Unlike, for example, Title I (a block grant program the Department of Education administers according to a congressional formula), Race to the Top is a discretionary - and therefore flexible - funding program. Funds are awarded by the agency, not by Congress, so there's no push for pork, the program need not spend a proportionate amount in every state, and it is not the kind of block-grant pre-requisite that might lead to contentious congressional votes - like when attempts to add national standards to annual ESEA funding were repeatedly defeated.

Finally, Race to the Top is special because its competitors are states - and only states. This focus on states in the first two rounds has policy benefits: making the states the competitors is the most direct way to prod states to change course on alternative school structures like charters or autonomous schools, teacher tenure, and standards. But it also embraces a larger virtue: federalism. By giving the states real choices about how to accomplish federal policy priorities rather than just making them administrative go-betweens that cut checks and write reports, Race to the Top reaffirms states' status as sovereigns with authority over - and responsibility for - their citizens' welfare.

At a moment when the public is increasingly concerned about reasserting state authority (including by calling for the repeal of the Seventeenth Amendment), less radical ways to give states greater autonomy deserve attention. The so-far success of Race to the Top shows that prizes can spur policy innovation, especially in fields in which it is easier to agree on ideal outcomes (like having all children learn) than on how to reach those goals.

 

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By Nsombi Lambright, Executive Director of the American Civil Liberties Union of Mississippi.

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I can't believe that five years have passed since Hurricane Katrina devastated Gulf Coast communities in Louisiana, Mississippi and Alabama. And although groups and advocates who were experienced in disaster recovery told us that it would take at least ten years to rebuild, I never imagined that five years later, we'd still face the same challenges. The fifth anniversary of Hurricane Katrina; are we celebrating growth and recovery, commemorating a tragedy, or both?

As I viewed the film "Trouble the Water" this week, I was mixed up inside. The ACLU of Mississippi partnered with an organization started by Katrina Survivors who relocated from New Orleans to Jackson, called Rise Above Katrina, to show the film at Tougaloo College, a historically black college in Mississippi. I met the New Orleans natives from Rise Above Katrina and hundreds of others from the Mississippi Gulf Coast immediately after Hurricane Katrina as the ACLU began to monitor the Government's overall response to the disaster as well as the disparities between services provided to white communities and people of color communities. In 2006, the ACLU participated in a U.S. delegation to Geneva to discuss the impact of these disparities to the United Nations Human Rights Committee. The ACLU also provided technical and legal assistance to Rise Above Katrina when they were threatened by law enforcement when protesting in front of the American Red Cross offices in Jackson. The group protested the American Red Cross' distribution of disaster relief funds.

As I interacted with Wilma Taylor and LaShawn Traylor and some of the other survivors, I thought about how far they'd come. Wilma is a Gulf Coast Fellow who is starting her own organization to advocate for individuals with disabilities. LaShawn is finishing her education and continuing her ministry. They've moved into new homes, celebrated births.

Life has moved on. They have risen above Katrina. However, there's still a glimpse of sadness remaining in their eyes. It's a sadness that allows you to travel into their bodies and view the pain in their souls. You hear it when they talk about loved ones who didn't make it through the storm. You hear it when they talk about their disappointment in the governments that let them down. The city of New Orleans, which did not provide transportation for people to leave; the state of Louisiana, which brought military and law enforcement in to shoot and arrest survivors; the state of Mississippi, which withheld federal dollars from everyone except homeowners; the city of Jackson, which moved everyone out of the temporary shelter of the coliseum because a Disney show was coming to town; Harrison County, the place that has not rebuilt shelters for the homeless and arrests people for not having a place to rest their heads at night.

The list of disappointments is endless. And still they rise. They rose above the storm to accomplish great things. They rose above the storm with new friends and family who were survivors too. They rose above the storm with a new sense of awareness about the importance of fighting for those who cannot fight for themselves. And even though they are still rising, they don't forget; they won't forget; they can't forget. I'll be there with them, rising too; until there is true freedom and justice for all!

 [Photo courtesy of Infrogmation]

For the second time a federal appeals court panel rejected jury awards in favor of African-American plaintiffs who alleged discrimination against the poultry company Tyson. In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit found that a Tyson manager's use of the word "boy" to address a black man, John Hithon, did not amount to evidence of racial discrimination.

Hithon denied a promotion at the Gadsden, Ala., poultry plant, argued that manager Tom Hatley had discriminated against him, citing, among other things, Hatley's derogatory usage of "boy." In 2002, Hithon and other employees of the plant lodged a lawsuit alleging racial discrimination and a jury found in their favor awarding hundreds of thousands in compensatory damages and $1.5 million in punitive damages. A federal magistrate judge invalidated the jury's verdict maintaining that racial discrimination was not proved, and in 2005 a panel of the Eleventh Circuit upheld that ruling. But the U.S. Supreme Court heard an appeal of the case and found that the use of the word boy could prove racial bias. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage," the high court ruled in remanding the case to the Eleventh Circuit. The remand also produced another jury trial, which again found in favor of Hithon and the other black employee, Anthony Ash.

But the Eleventh Circuit, in its recent ruling (pdf) in Ash v. Tyson Foods, Inc., refused to budge from its earlier decision, concluding that there was not new evidence to show the use of the word was discriminatory, Law.Com reported. But U.S. District Senior Judge David D. Dowd Jr., appointed to the bench by President Reagan, in a dissent said the jury verdicts should have been upheld.

In a column for Daily Report, Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, wrote that the latest decision is a troubling reminder of the need for diversity on the Eleventh Circuit.

Bright wrote:

These two white judges [referring to Eleventh Circuit Judges Edward E. Carnes and William H. Pryor, Jr., of the majority in Ash], residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man ‘boy' than 24 Alabamians selected for two federal juries.

...

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

 

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By F. Paul Bland, Jr., senior attorney at Public Justice.

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The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. The case could decide the fate of most consumer and employee class actions for years to come.

The Concepcion case involves the widespread corporate practice of using standard-form contract terms that purport to prevent consumers and employees from ever participating in class proceedings. Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese. And even if they did, few consumers or employees could negotiate the contracts' terms.

Many federal and state courts have held such class-action bans unenforceable under state laws providing that contract terms that block individuals from enforcing their rights under consumer protection and civil rights laws. Hoping to sweep aside many of those cases, AT&T Mobility ("ATTM") has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act ("FAA").

Class-action bans dramatically undermine enforcement of consumer- and employee-protection laws. In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) even when those laws are broken. Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights. For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars. There are many situations where a case will either be handled on a class action basis or it will never be brought at all.

In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come. But that result is far from inevitable. For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision should be limited. On the merits, if the Court agrees with the vast majority of lower courts, then the decision will change little. If the Court uses this case to grant the fondest wishes of some corporate lawyers for immunity, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

For the court to rule for ATTM, it will have to sweep aside a widespread consensus of lower courts. Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law. The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law. In addition, federal circuit courts that have both struck down and upheld class action bans in unconscionability challenges have all examined the issue as one of state law. See here for a much longer blog offering case cites for these propositions.

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn't caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.

The only language in the FAA that relates to the question presented in Concepcion provides that agreements to arbitrate will be enforceable only if the agreement is not counter to laws that would lead to revocability of any contract. 9 U.S.C. § 2. In this case, the state laws at issue are the common-law doctrine that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable. This body of law applies to all contracts, does not mention or target arbitration, and thus does not conflict with the Federal "Arbitration" Act.

Also, the Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people "effectively vindicate their statutory legal rights." The Court will have to ignore those decisions if it's going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law? Will scores of state and federal appellate cases be disregarded? Will the FAA be put on an inevitable collision course with the Congress? Or will the Court step back and do the right thing? No one will know for sure until the Court decides Concepcion next spring.

 

A federal judge in Washington has temporarily blocked federal funding for human embryonic stem cell research authorized by Obama administration regulations.

In a preliminary injunction, U.S. District Judge Royce Lamberth held that the plaintiffs were likely to succeed on the merits because the government guidelines violate a law that prohibits the use of federal funds for research in which human embryos are destroyed, Reuters reports.

"(Embryonic stem cell) research is clearly research in which an embryo is destroyed," Lamberth wrote in a 15-page decision.

Lamberth initially dismissed a suit by the same plaintiffs in October, holding that "embryos lack standing because they are not persons under the law" and the unborn have no right to life protected under the Constitution's 14th Amendment, Bloomberg reported at the time.

 The Court of Appeals overturned the standing decision and remanded the case to Lamberth.

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By John Rother, executive vice president for policy and strategy at AARP.

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On Saturday, we marked the diamond anniversary of a national treasure - Social Security, signed into law on August 14, 1935. With his signature, President Roosevelt began what has become the bedrock of economic security for countless working Americans and their families. In addition to providing retirement benefits for those age 62 and older, Social Security provides benefits that help all generations. Families of soldiers killed in Iraq and Afghanistan, children who lose a working parent, workers who become disabled, widows and widowers - all count on Social Security benefits. In all, 53 million Americans today count on Social Security as a critical source of income.

It's a time to celebrate Social Security's remarkable past success, and to commit to ensuring our nation's most important program will be strong in the future. It's also a time to counter false assumptions that give rise to so-called "solutions" that instead of strengthening the program, will undermine the retirement security of our children and grandchildren.

The fact is, Social Security will be as important for future generations as it is for current retirees. In the recession millions of Americans lost their jobs and their pensions and saw their private savings accounts plummet with the fall of the stock market, but Social Security benefits were there, as they have been for 75 years, in good times and bad.

For the majority of retirees, Social Security can be the difference between aging with independence and aging in financial desperation. To be specific, Social Security provides more than half the income for 72 percent of single individuals age 65+ who receive Social Security benefits and for 52 percent of couples who receive benefits.

And, yet, as vital as these benefits are, they are modest by any standard. Social Security was never designed to be a worker's sole source of retirement income. Today's average workers' benefits will replace only about $4 of every $10 earned while working. The average retirement benefit in December 2009 was $1,168 per month - about $14,000 a year. For retired women, even less - only $983 a month -- or less than $12,000 a year.

Even so, it's become conventional wisdom for young people - and many older folks as well -- to assume the program won't be around when they need it. Only one in three 18- to 29-year-olds in a recent AARP survey said they were "very" or "somewhat" confident of the future of Social Security. This is not surprising when you have alarmists running around saying the program is about to go broke. Yet, even though younger Americans lack confidence in Social Security being there for them, more than nine in ten want to know it is there when they retire just in case they need it.

What alarmists won't tell you is that Social Security is stronger than most people believe. Even if Congress does absolutely nothing, Social Security can pay full benefits until 2037 and 78 percent of benefits for decades after that. And, the Social Security Trust Funds have assets of about $2.5 trillion, and it's still growing.

Paying 78 percent of benefits isn't good enough, however, so we know we need to make changes to Social Security over the long-term so that it will be able to continue to pay promised benefits to future generations. The changes do not have to be drastic, but the sooner we act, the better. By making a few changes to Social Security now, we can keep it strong for our children and grandchildren.

Unfortunately, some in Washington are proposing cutting Social Security benefits to reduce the deficit. Yes, our nation's leaders need to find ways to reduce the deficit, but Social Security has played no role in our current deficit situation. There are several ways to strengthen the program's long term finances through modest adjustments that can be phased in over many years.

Social Security, by law, is separate from the rest of the federal budget. It is self-financed, and cannot legally spend more than it collects through payroll taxes, the taxation of benefits, and the assets in the Trust Fund. In fact, for years, Social Security's surpluses have masked the true size of the deficit in the rest of the federal budget.

We need a national discussion on how to restore retirement security for all Americans. Old-fashioned as it might sound, that dialogue should be bipartisan. It should include strategies to promote more saving in addition to Social Security, such as through incentives to save in the workplace, especially where employers do not offer pensions, or 401(k)-type savings plans. We need real leadership in Congress to address these issues in ways that support economic growth as well as personal financial security.

Keeping Social Security strong should be something we all can agree on. It is one insurance policy we all know is needed, with benefits earned by all who pay in.

We all have a stake in getting this right.

 

The Social Security Act turned 75 on Saturday, and President Obama seized the occasion to remind the public that the United States cannot afford to privatize social security.

"I'll fight with everything I've got to stop those who would gamble your Social Security on Wall Street," President Obama said during his weekly address. "Because you shouldn't be worried that a sudden downturn in the stock market will put all you've worked so hard for - all you've earned - at risk. You should have the peace of mind of knowing that after meeting your responsibilities and paying into the system all your lives, you'll get the benefits you deserve."

Adds the Los Angeles Times in an editorial:

Conservatives have tried for several years to use the trust fund's long-term troubles as a rationale for privatizing Social Security. But allowing workers to take control (and responsibility) for all or part of their accounts would only exacerbate the problem. That's because, despite $2.5 trillion in reserves, the trust fund isn't large enough to finance the benefits promised to workers already in the system. Shifting payroll taxes from the trust fund to private accounts would make the shortfall worse.

The editorial calls instead for a combination of smaller steps, including raising the retirement age, raising payroll taxes, cutting benefits and changing cost-benefit adjustments.

Editorials in both The Washington Post and The New York Times also call for balanced reform, with a combination of benefit cuts and tax increases, but the Post calls the newest numbers a "warning sign," while The Times editorial board says "Social Security is holding up even in the face of a weak economy," due in part to savings Medicare will experience thanks to health care reform.

Paul Krugman writes that claims of a Social Security crisis rely on "bad-faith accounting."

"I'm not just talking about the fact that it's a lot easier to imagine working until you're 70 if you have a comfortable office job than if you're engaged in manual labor," Krugman writes. "America is becoming an increasingly unequal society - and the growing disparities extend to matters of life and death. Life expectancy at age 65 has risen a lot at the top of the income distribution, but much less for lower-income workers. And remember, the retirement age is already scheduled to rise under current law."

Derek Thompson writes in the Atlantic that Krugman's article is misleading, pointing out that modest cuts today will benefit the bottom 50 percent of Social Security recipients more than steep cuts in the future.

The Nation's Katrina vanden Heuvel suggests: "on this 75th anniversary, rather than fighting these Social Security-busters, we should celebrate what has been one of the nation's best anti-poverty programs - a lifeline for millions of Americans - and a reminder of what effective government can do."

She adds:

This anniversary is also a reminder of how major social reforms in this country have come about - in fits and starts. As former Clinton adviser Paul Begala observed in a Washington Post op-ed, "No self-respecting liberal today would support Franklin Roosevelt's original Social Security Act... If that version of Social Security were introduced today, progressives like me would call it cramped, parsimonious, mean-spirited and even racist. Perhaps it was all those things. But it was also a start. And for 74 years we have built on that start."