11 thoughts on “Forbes post, “Social Security Ending In 2023? No. But What Really Happens When The Trust Fund Is Emptied?”

  1. simple…eliminate the cap on Social Security taxes…everyone pays the same percentage…sure, some will get less out of it, but it seems fair enough…after all many get less now by dying too soon…

  2. Elizabeth Bauer’s (JaneTheActuary.com) August 27 article in FORBES, SOCIAL SECURITY IN
    2023? NO. BUT WHAT REALLY HAPPENS WHEN THE TRUST FUND IS EMPTIED?, makes the important point
    that the fact that depletion of the funds available in the trust funds for Social Security Disability
    and Retirement benefits does not mean that the Federal government’s legal duty and political
    incentives to fund those programs goes away. The important distinction between the
    government’s obligation to honor entitlements and the government’s obligation to fund those
    entitlements was explained by the Supreme Court in last spring’s decision in Maine Community
    Health Options v. United States (April 27, 2020). In that case the government had adopted the
    Affordable Care Act which among many other provisions provided for a risk corridors program
    that offered insurers who sold policies on the online health insurance marketplaces, also
    created by the Act, protection from losses they experienced. The risk corridors program
    provided for payments to insurers who sold policies through the marketplaces and lost money
    (under statutorily specified limitations) would be compensated for those loses by the
    government. The rationale for the risk corridors provision was that insurers were being asked
    to offer policies with specified policy conditions (such as coverage of pre-existing conditions)
    and to populations with which they had no actuarially relevant experience, and they could not
    take such an unknown risk without the backstop provided by the risk corridors program.
    Maine Community Health Options (and many other insurers) sold such policies and
    suffered losses within the statutory parameters. But when they sought reimbursement,
    Congress had explicitly decided not to appropriate funds to make the payments possible. So
    they sued in the Court of Claims for the billions of dollars due under the risk corridors program.
    The Supreme Court reversed a decision of the Federal Circuit (which is the first-level review
    court of the Court of Claims) which held that the action of Congress in deciding not to fund the
    risk corridors payments terminated their right to payment. The Court said that a decision by
    Congress not to fund an obligation was not the same thing as deciding to repeal the obligation.
    Therefore, Maine Community Health Options and other insurers in the same positions were
    entitled to be paid out of the unlimited and permanent appropriation for the payment of
    judgments of the Court of Claims.
    The availability of unlimited appropriated funds in the Court of Claims judgment fund
    reinforces Ms. Bauer’s point, that whether or not there are funds in the social trust funds and
    whether or not there is a payroll tax, beneficiaries of the social security programs will be paid.
    It also means that Congressional inaction in the face of the long-anticipated depletion of the
    trust funds will not be sufficient to change the right of the beneficiaries to be paid their full
    benefit entitlement.
    Edmund W. Kitch and Julia Mahoney
    University of Virginia School of Law
    Authors of: Restructuring United States Government Debt: Private Rights, Public Values, and the
    Constitution, 2019 MICH. ST. L. REV. 1283, ACCESSIBLE AT:
    https://digitalcommons.law.msu.edu/lr/vol2019/iss5/

Leave a Reply

Your email address will not be published. Required fields are marked *