The Social Security Act is undoubtedly one of the nation’s most important accomplishments in addressing Americans’ economic insecurity, poverty and human suffering. However, since its enactment in 1935, it has fallen short in delivering on the promise of equitable economic protection for African Americans and similarly situated persons of color. This article examines two exclusionary and discriminatory statutory provisions which have disproportionately injured African Americans and other persons of color. Although arising from different time periods more than 35 years apart, directed to decidedly different issues, and affecting vastly different communities of color, they are bound by a common thread of the American experience: racism and white supremacy and abetted by political disenfranchisement. They include: an exemption in the original Social Security Act of 1935 Old Age Insurance program, excluding agricultural and domestic workers who were disproportionately African American, and a provision in 1972 Amendments to the Act excluding residents of U.S. Territories from the Supplemental Security Income program (who are overwhelmingly non-white--Latino/a, Black, AANHPI, or mixed race). These exclusions are grounded in historical racism stemming from the “badges and incidents” of slavery and solicitude to protecting a postbellum plantation, sharecropping economy, or from American colonialism and imperialism at the turn of the 20th century in the territories. Although equal protection principles supply a useful lens with which to examine these provisions’ racially disparate scope and nature, the equal protection doctrines as applied by courts have proven largely inadequate as a remedial tool to alter policy or redress injury as reflected in the Court’s 2022 Vaello Madero decision. The article concludes with suggestions for advancing racial justice in Social Security programs in addressing the legacy of exclusion and informing responses to other threats of programmatic disparate treatment.
Keywords: Race, Inequality, Equal Protection, Social Security, Poverty, Sharecropping System, Insular Cases, American Welfare State, Reparations/Reconciliation
JEL Classification: I30, I31, I32, I38, I39 Z13, J15
Suggested Citation: Suggested Citation
Dubin, Jon C., The Color of Social Security: Race and Unequal Protection in the Crown Jewel of the American Welfare State (October 18, 2023). 35 Stanford Law and Policy Review ___ (forthcoming 2024), Rutgers Law School Research Paper, Available at SSRN: https://ssrn.com/abstract=4605652 or http://dx.doi.org/10.2139/ssrn.4605652
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