Ask the Advisor: November 2012

Ask the Advisor: November 2012

Is The Social Security Totalization Agreement With Mexico Still Pending?

Q: Has TSCL learned any new details about the Social Security totalization agreement with Mexico?  What happens to the agreement after the election?

A:  Some have questioned whether the Obama Administration has shelved plans to submit the U.S./Mexico Totalization Agreement to Congress.  But according to new information TSCL has learned from its Freedom of Information Act (FOIA) requests, and a pending FOIA lawsuit, the Social Security Totalization agreement signed with Mexico in 2004 appears to be very much alive in Washington, D.C., and of continuing interest to the current Administration.

The U.S./Mexico Totalization agreement has never been approved by the President and sent to Congress for review, which is required before the agreement becomes effective.  The American public has not been informed about why the Agreement has been stalled.  One reason may be that the Mexican government does not agree with the U.S. interpretation of the Agreement, as set forth in a "Diplomatic Note" sent by the U.S. State Department to the Mexican government.

The State Department released the Diplomatic Note to TSCL in late 2006 in partial settlement of a FOIA lawsuit brought by TSCL.  The Diplomatic Note states that the Totalization Agreement does not override present or future provisions of relevant U.S. law.  Those provisions currently provide that, in order to receive benefits under U.S. Social Security law, aliens must be lawfully present in the United States.

According to TSCL legal counsel, State Department e-mails on the Totalization Agreement since 2004, and as recently as 2011, appear to discuss tactics, as well as back-and-forth discussions with Mexico, regarding further negotiations of the Agreement.  The State Department refuses to release the e-mails, as well as other documents, claiming that disclosing them "could compromise further negotiations and damage our foreign relations."

The Social Security Administration justifies withholding a number of other documents on the ground that they should not be released to the public until after Congress approves the Agreement.  TSCL is highly concerned this could indicate that the U.S. public will be deprived of access to these documents until it is too late to rally opposition to the Agreement.

Social Security totalization agreements allow workers who comet to the U.S. for work from a foreign nation to earn generic work credits good for retirement benefits in either country, and vice - versa.  In addition, the earnings credits are "totaled" from both countries so that workers can qualify for benefits if they lack sufficient coverage.  Since 1978 the U.S. has implemented totalization agreements with 24 other nations — most having economies similar to ours.  But the agreement with Mexico is very different from any of the others, primarily because of the millions who have worked here illegally.

In 2003 the Government Accountability Office said "the cost of a totalization agreement with Mexico is highly uncertain." Under current law, an alien worker is entitled to Social Security benefits based on all work performed, including jobs worked without legal authorization.  TSCL believes that, if approved by the President and not rejected by Congress, a Totalization Agreement with Mexico could add hundreds of billions in new costs to Social Security.

Totalization agreements authorized by legislation passed in the 1970's, originate as part of U.S. foreign policy through the Executive Office.  As such they are akin to treaties between the United States and a foreign country.  Once signed by the Social Security Administration, the agreement is sent for approval to the President.  The President then sends the agreement to Congress.  The agreement automatically becomes effective unless Congress takes action within 60 business days to disapprove and block implementation of the agreement.

The U.S./Mexico Totalization Agreement, which awaits the President’s approval, remains pending no matter who resides in the White House.  TSCL supports Congressional resolutions to disapprove and block the Agreement.