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No Federally-mandated State Requirement for SSNs
By: Scott McDonald

There exists a wide-spread misconception that Congress has recently enacted legislation forcing states to obtain Social Security numbers in the administration of certain state functions. As a consequence, lawmakers throughout the country are anxiously scrambling to enact a multitude of new State laws premised upon false assumptions. 

The perpetuators of this misconception often cite two recently enacted federal laws - the Welfare Reform Act of 1996 and the Illegal Immigration Control Act of 1996 - in support of their contention. The question then arises: Are the provisions contained within these two federal Acts really "requirements" which the states MUST enforce? 

The fact is that NEITHER of these two new federal laws even purports to require states to obtain Social Security numbers for state functions. Furthermore, IF Congress HAD imposed such a federally mandated requirement - according to the U.S. Supreme Court - the law would violate the principle of "dual sovereignty" and would, therefore, be unenforceable. 

Consider the following: 


State Lawmakers often recite the now familiar line which goes like this: "The Illegal Immigration Control Act requires states to either place driver's social security numbers on the face of their licenses, or to complete a social security number verification process." 

In reality, the 1996 Illegal Immigration Act simply DOES NOT REQUIRE states to modify their license issuance procedures, or to "enforce" a requirement for Social Security numbers. The federal Act ONLY establishes a requirement for FEDERAL AGENCIES to adhere. 

Here is what P.L. 104-208, actually DOES SAY regarding SSNs: 

    "Sec. 656(b)(1)(A) IN GENERAL- A Federal agency may not accept for any identification-related purpose a driver's license, or other comparable identification document, issued by a State, unless the license or document satisfies the following requirements..."
Hence, only FEDERAL AGENCIES are affected by this law. The law says that "federal agencies" must determine whether or not documents submitted to them include the use of Social Security numbers, "either on the document or in the application process." But, section 656 does not require the states, or their administrative agencies, to do anything! In fact, all the law really says is that federal agencies "may" not accept non-conforming documents; which conversely means that in some circumstances, they "may." 

THE WELFARE REFORM ACT OF 1996 (P.L. 104-193) 

The other claim frequently parroted by State lawmakers is that the Welfare Reform Act of 1996 requires states to obtain Social Security numbers from ALL applicants for ALL State-issued licenses; including driver's licenses, occupational license, business license, hunting license, fishing license, boating license, professional license, etc. 

Here again, the Welfare Reform Act DOES NOT impose a "requirement" upon the states. The Act merely amended the U.S. Code, Title 42, by adding new "GUIDELINES" for states to adhere to in establishing a State "plan" for the administration of welfare "BENEFITS" programs. States are subsequently granted funding for the various benefits programs based upon their plan's level of conformity with the federal guidelines. 

Title 42 is subdivided into numerous Chapters, Subchapters, Parts, Subparts, and Sections. Chapter 7, entitled "Social Security," contains the funding provisions for all social benefits and welfare programs. Some of the more well known Chapter 7 programs include: Old-Age Assistance, Old-Age Survivors Disability Insurance, Grants to States for Unemployment Compensation, Grants to States for the Disabled, and Grants to States for Aid to Needy Families with Children. 

Chapter 7, Subchapter IV, Part A, includes the "Aid to Families With Dependent Children" (AFDC) grant appropriations. Part A, Section 601 provides that: 

    "...The sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for aid and services to needy families with children."
Section 602 establishes the broad guidelines for states to follow in developing their State "plan," which is then to be submitted to the Secretary for approval. Section 602 provides that, in order for a State's plan to be approved for the funding made available under 601, it must incorporate the provisions set out under "part D." 
    "§ 602(a) A State plan for aid and services to needy families with children must - 

    "(27) provide that the State has in effect a plan approved under part D of this subchapter and operates a child support program in substantial compliance with such plan..."

[Part D is included below.] 

And, Section 603 provides that, the Secretary of the Treasury shall pay grant money to all states which have adopted an "approved plan." 

As can be seen from the foregoing, federal grant money will be made available to states which implement State plans incorporating the various provisions contained in the federal guidelines. Thus lays the backdrop for the "grant" provision presently causing all the confusion and misunderstanding regarding state "requirements" for Social Security numbers; which brings us to "Part D." 

Part D establishes the "child support" funding-contingent guidelines. Part D provides that a State's "plan" must incorporate methods to (among other things) "locate absent parents." This is generally referred to as the "Dead-beat Dad" law. Part D, Section 654 provides that: 

    "§ 654. A State plan for child and spousal support must - 

    "(20) provide, to the extent required by section 666 of this title, that the State (A) shall have in effect all of the laws to improve child support enforcement effectiveness which are referred to in that section, and (B) shall implement the procedures which are prescribed in or pursuant to such laws..."

Section 654(20), the "child support enforcement" provision, includes the first mention of Section "666" which is the section addressing Social Security numbers for State issued licenses. Section 666 provides that: 
    "§ 666(a) In order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following...
    "(13) Procedures requiring that the social security number of -
    "(A) any applicant for a professional license, driver's license, occupational license, or marriage license be recorded on the application..."
[The above section of 42 U.S.C. 666, reflects the amendments made by "The Welfare Reform Act of 1996" (Public Law 104-193) and "The Balanced Budget Act of 1997" (Public Law: 105-33)] 

Therefor, the "requirements" set out under Title 42, Section 666, ONLY serve to establish the "procedures" for states to incorporate into their State "plan," which is then to be approved by the Secretary as a condition for the State to receive federal funding for welfare programs. Though it is easy to see how someone reading JUST section 666 alone, could MISCONSTRUE it as a compulsory federal requirement. 

As shown here, NONE of the funding-contingent "procedures" set out in P.L. 104-193, constitute federal "requirements" which the states are compelled to enforce. If the states act to impose such requirements, they do so of their own accord and volition. 


Do the Courts consider these funding-contingent "requirements" lawful requirements in the sense that the states "must" enforce them? The answer is clearly - NO! In 1997, the United States Supreme Court ruled, in the Case of "Sheriffs Richard Mack and Jay Printz vs. The United States," that Congress cannot compel the states to enforce a federal law. The Court concluded that: 

    "Congress cannot compel the States to enact or enforce a federal regulatory program. ... The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty."
Therefore, even IF Congress had enacted a law requiring the states to modify their licensing procedures, or to obtain Social Security numbers from license applicants, such requirement would have NO lawful authority. 

In conclusion, the states are not required by federal law to obtain Social Security numbers in the administration of state functions. And no one believes that Congress is going to allow the suspension of welfare funding to states who choose to NOT implement these measures - such will simply never happen. 

The Privacy Act of 1974 (Public Law 93-579) Section 7 provides that: 

    "(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number."
The only relevant exception to the forgoing, as provided by the Privacy Act, is for any disclosure which is "required by Federal statute..." And, to date, I know of NO Federal statute which requires disclosure - to State licensing agencies, departments, or boards - of any individual's Social Security number. 

And, Title 42 U.S. Code, section 408(a)(8) states that: 

    "[Whoever] discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both."
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