This course takes a look at basic governmental concepts, including the effect they have on Social Security and Medicare coverage.

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    1. What are the branches or parts of the Government?
    2. What are the two parts of the U.S. Congress?
    3. How many U.S. Senators are there?
    4. We elect a U.S. Senator for how many years?
    5. The House of Representatives has how many voting members?
    6. We elect a U.S. Representative for how many years?
    7. What does the Constitution do?
    8. What is an amendment?
    9. What do we call the first ten amendments to the Constitution?
    10. How many amendments does the Constitution have?
    11. How is Federal law enacted?
    12. What is the hierarchy of statutory and administrative regulations?
    13. Which federal agency has supremacy over the other?
    14. What is the separation of powers?
    15. Federalism–what is it and how does it apply to Section 218?
    16. Why are some States subject to different State and local FICA provisions than others?
    17. Why doesn’t the Section 218 Agreement that governs voluntary Social Security and Medicare-only coverage of State and local government employees have to be changed when federal laws are amended?
    18. Why does a federal court ruling in one circuit only apply to States in that circuit?
    19. What is the hierarchy of court rulings?
    20. Why do States have jurisdiction over their local governments and why are the States a party to all Section 218 Agreements?
    21. Who makes determinations regarding Section 218 Agreements?
    22. How do you determine whether it is Federal or State law that applies?

 

Branches of Government


1.  What are the branches or parts of the Government?

The U.S. Government has three branches. They are:

  • The executive branch consists of the President, the Vice President, and 15 Cabinet-level executive departments;
  • The legislative branch is made up of two bodies of Congress whose primary functions are to write, debate, and pass bills; and
  • The judicial branch is made up the Supreme Court and the lower federal courts.

2.  What are the two parts of the U.S. Congress?

The Senate and House of Representatives


3.  How many U.S. Senators are there?

One hundred (100)


4.  We elect a U.S. Senator for how many years?

Six (6)


5.  The House of Representatives has how many voting members?

Four hundred thirty-five (435)


6.  We elect a U.S. Representative for how many years?

Two (2)

 

The Constitution


7.  What does the Constitution do?

The Constitution sets up the government, defines the government, and protects basic rights of Americans.


8.  What is an amendment?

An amendment is a change, or an addition to the Constitution.


9. What do we call the first ten amendments to the Constitution?

The Bill of Rights


10. How many amendments does the Constitution have?

Twenty-seven (27)

 

The Laws


11.  How is Federal law enacted?

A bill is introduced and passed in either the U.S. House of Representatives or the U.S. Senate and assigned to the appropriate committee.  Upon approval in the house of origin, the bill moves to the other house for consideration.  If amended in any way, the bill goes to a conference committee (consisting of members of both houses) to compromise on the final version.  The House and the Senate vote on this new version.  If passed by both, it moves to the President for approval. If the President signs the bill, it becomes law.  If the President vetoes the bill, it fails to become law unless Congress has sufficient votes (2/3 of each house) to override the veto. The bill may become law without the President's signature by virtue of the constitutional provision that if the President does not return a bill with objections within 10 days (excluding Sundays) after it has been presented to the President, it becomes law as if the President had signed it. However, if Congress, by their adjournment, prevents its return, it does not become law. This is known as a "pocket veto"; that is, the bill does not become law even though the President has not sent his objections to the Congress.


12.  What is the hierarchy of statutory and administrative regulations?

The U.S. Constitution (Article VI) is the supreme law of the land. The Constitution permits Congress to pass laws (statutes) that are binding on all States. The Executive Branch of government (The President and members of his cabinet, including departments and agencies, such as the SSA and IRS) is charged with executing these statutes and creating administrative laws (rules, regulations, and administrative decisions). The administrative laws are subordinate to the statute, which, in turn, is subordinate to the Constitution. 

All states have a similar legal structure but state law remains subordinate to the federal Constitution and laws. 


13.  Which federal agency has supremacy over the other?

None. Each agency has independent jurisdiction to implement and enforce the laws within its authority as defined by federal statute.  For example, Social Security coverage and benefits are within the purview of the Social Security Administration, while tax collection, including FICA, is within the jurisdiction of the Internal Revenue Service.  


14.  What is the separation of powers?

It is a doctrine prohibiting one branch of government, either federal or State, from infringing on or encroaching upon or exercising the powers belonging to another branch.  Although the doctrine may not promote efficiency, it is considered a bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will.  The Congress is vested with the power to create laws and the President and the federal agencies are charged with executing those laws. The Courts decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution. This latter power is known as judicial review and it is this process that the judiciary uses to provide checks and balances on the legislative and executive branches.  A doctrine of checks and balances is a system that imposes limits on all branches of a government by vesting in each branch the right to amend or void those acts of another that fall within its purview. 


15.  Federalism–what is it and how does it apply to Section 218?

The heart of this question goes to power and authority to act as a government, which is termed sovereignty.  As a republic, the United States is a federalist form of government in which sovereignty is divided between a central authority and member state authorities.  The citizens and the States granted authority to this central authority now known as the federal government.  To make federalism work, the U.S. Constitution imposes certain restraints on the national and State governments.  For example, States are prohibited from making treaties with foreign governments.  The national government, in turn, is required by the Constitution to refrain from exercising its powers, especially its powers to tax and to regulate interstate commerce, in such a way as to interfere substantially with the ability of the states to perform their responsibilities. The 10th Amendment of the U.S. Constitution reinforces this tenant by stating that the powers not granted by the Constitution to the federal government are reserved to the states or the people.

This understanding of sovereignty and federalism was the reason that Congress did not include State and local government employers and employees in the original Social Security Act of 1935.   To overcome this problem, Section 218 of the Social Security Act was enacted that allowed the States and their political subdivisions, through their States, to enter into voluntary agreements with the federal government (SSA) to provide coverage and benefits to their employees. 


16.  Why are some States subject to different State and local FICA provisions than others? 

Section 218 of the U.S. Social Security Act permits each State to enter into a voluntary coverage agreement with the Social Security Administration.  In order to do so, each State had to adopt enabling legislation that reflects its preferences and needs for Social Security coverage for their State and local government employees.  Thus, each State has different laws that apply to them and their political subdivisions.

Some provisions of the federal law (even today) were passed that contain State specific provisions. For example, only certain States are allowed to conduct divided-vote referenda.


17.  Why doesn’t the Section 218 Agreement that governs voluntary Social Security and Medicare-only coverage of State and local government employees have to be changed when federal laws are amended?

According to the United States Constitution (Article VI), federal laws have supremacy over all laws adopted by the States.  Any changes in federal law automatically change the requirements imposed on the states and local governments throughout the United States.


18.  Why does a federal court ruling in one circuit only apply to States in that circuit?

Article III of the U.S. Constitution established the judicial branch of government with the creation of the Supreme Court. This court is the highest court in the country and vested with the judicial powers of the government. There are lower federal courts but they were not created by the Constitution. Rather, Congress deemed them necessary and established them using power granted by the Constitution.
           
The federal judiciary is divided into one Supreme Court and 13 circuit courts of appeal.  Each circuit has its own independent jurisdiction and trial (district) and appellate courts.  The Circuit Court of Appeals for each circuit exercises appellate jurisdiction over the various district courts within the circuit and their decisions become the “case law” for all states within that circuit.  The Circuit Court of Appeals in a particular circuit is NOT bound by the decisions of another circuit.  One reason the U.S. Supreme Court can decide to take a case on appeal is when there are conflicting decisions between circuits.  If the Supreme Court does not hear such cases, then the differing court decisions remain.  Any decision issued by the U.S. Supreme Court applies to all circuits and every State.


19.  What is the hierarchy of court rulings?

The hierarchy depends on the issue to be decided.  U.S. Constitution and federal law issues are governed by the U.S. Supreme Court, then the Circuit Court of Appeals, then the district or special jurisdiction courts, such as a tax court and lastly, the administrative ruling by the executive agency.   The State Supreme Court has final authority over State law matters, even when the core issue involves a federal statute such as Section 218.   For example, whether a political subdivision is created or dissolved is a matter of State law and the questions of fact and law are properly decided by the State courts, with the State Supreme Court being the final arbiter.


20.  Why do States have jurisdiction over their local governments and why are the States a party to all Section 218 Agreements?

As with the federalism question, above, local governments derive their authority from the State as a political subdivision of that State.  These subdivisions are created (and dissolved) by the States as separate juristic entities in order to provide a defined governmental function at the local level.  Therefore, while a political subdivision is separate from the State for performing legally defined functions, it remains a part of the State.    

The Social Security Administration is authorized by Section 218 to enter into agreements for Social Security coverage with the States.  The States are allowed to cover their political subdivisions through this “master agreement” with the SSA by modifying this it to include coverage of the various political subdivisions.  The very nature of the documents (contracts) providing Social Security and Medicare coverage to the States and local governments mandate that the States are a party to all Section 218 Agreements within it.  Thus, local governments cannot enter into a Section 218 Agreement with the SSA independent of the state.


21.  Who makes determinations regarding Section 218 Agreements?

Final determinations regarding State Section 218 Agreements are governed by Federal law and are made by Social Security. These determinations may be based on decisions regarding certain specific issues to which either Federal or State law (i.e., State statute and legislation) is applied. Where State law may have a bearing on the issue, an opinion of the State legal officer (ex., State Attorney General) may be requested if one does not already exist. The opinion will be given due weight in making the final determination.


22.  How do you determine whether it is Federal or State law that applies?

Federal law governs determinations involving coverage of State and local government employees while the interpretation or application of State laws are resolved by the authorized legal officers of the State (ex., State Attorney General) in accordance with applicable State and local laws, regulations and the State court decisions.

The chart below can serve as a first-step approach to determining whether an issue lies within the authority of the Federal or state governments. It is important to remember though, when establishing the authority under which determinations are to be made, you should assess the situation independent of prior determinations.  

Federal Law

Does an employer or employee relationship exist?

 

What is the identity of the employer?

 

Are earnings reported as Social Security wages?

 

What are emergency services?

 

What are student services?

State Law

Who is an officer of a State or political subdivision?

 

Is an entity a political subdivision?

 

What is the legal status of a new entity?

 

Is a function governmental or proprietary?

 

Is a position under a retirement system?

 

Which employees are eligible for membership in a retirement system?

 

Who is an employee for purposes of retirement system participation?

 

What is the definition of a police officer or firefighter position?