Judge Andrew Napolitano
When Texas Gov. Rick Perry, then in the early stages of his short-lived quest for the Republican presidential nomination, referred to Social Security as "a Ponzi scheme," he was excoriated by the press, left and right, and by his fellow Republicans, as well. Earlier this week, government actuaries revealed that Perry was correct.

That revelation, which was greeted with a ho-hum by the media, basically announced that by 2033, 21 years from now, the so-called Social Security trust fund will be empty. The only reason this was even announced is because we are approaching a presidential election campaign, and in response to Perry's much-derided claim, the government's actuaries, who originally told the Obama administration and the public that the fund would be solvent until 2036, re-examined their numbers and concluded that it will be in the red three years earlier than they thought.

This revelation should come as no surprise to those who monitor the government and its deceptive ways. When he first introduced Social Security, President Franklin D. Roosevelt argued that under Social Security the federal government would be holding your money for you. He deceptively fostered the idea that Social Security would be a savings account, into which employees and employers would make contributions and out of which guaranteed monies would be paid to those who reached the age of 65. Essentially, he claimed that you'd get your money back.

The politicians believed him, but the actuaries and the judiciary understood that the government would never hold anyone's money for him -- as if it were the custodian of a bank account. In the first of several challenges to the constitutionality of Social Security, the Supreme Court found that the Social Security fund did not consist of your money. It was merely tax revenue.

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It also held that since Congress' law-making authority is limited to the 16 discrete delegated powers granted to it in the Constitution (a truism few in Congress accept as binding) but its spending authority is open-ended (a conclusion that must torment James Madison's ghost), Congress could collect funds, claim it was holding the funds in a savings account and then spend those funds as it saw fit -- for those in need after age 65 or for any other purpose.

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And, in a curious yet revealing one-liner in the Supreme Court opinion upholding the constitutionality of Social Security, even the court recognized that there would be no trust fund in the traditional sense when it found that the tax dollars collected and supposedly designated for Social Security were "not earmarked in any way."

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Eventually, the government would acknowledge that what it first called a savings account and then called old-age insurance and then said would be fortified by a trust fund did not even establish a contractual obligation to those who have paid the Social Security tax -- which would be all of us. Thus, the feds have conceded and the courts have agreed that the money you have involuntarily contributed to the so-called trust fund is not yours and can be spent by the government as it pleases, just like any other revenue that the feds collect.

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The trust fund is not money that the government "holds" for you, as FDR promised. It is not money to which you have a lawful claim, as he claimed. It is not a guarantee for you, as he led the public to believe. The so-called trust fund is merely the difference between what is collected and what is paid out. And the feds just acknowledged that in 21 years, they are likely to pay out more than they will collect.

Perry did not succeed this time in his quest for the Republican nomination. But he did succeed in articulating a hard truth: The same federal government that prosecutes people like Bernie Madoff for paying out more than they collect does the very same thing under the color of law.

Is a Ponzi scheme -- which is basically theft by deception -- lawful just because the government runs it? The Supreme Court has said yes. Perry has said no.

Governor Perry is correct.


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.