Flemming v. Nestor

Flemming v. Nestor

Flemming v. Nestor
Argued February 24, 1960
Decided June 20, 1960
Full case name Arthur Sherwood Flemming, Secretary of Health, Education, and Welfare v. Ephram Nestor
Citations 363 U.S. 603 (more)
80 S. Ct. 1367; 4 L. Ed. 2d 1435; 1960 U.S. LEXIS 917
Although this action drew into question the constitutionality of 202 (n), it did not involve an injunction or otherwise interdict the operation of the statutory scheme; 28 U.S.C. § 2282 was not applicable; and jurisdiction over the action was properly exercised by the single-judge District Court.
Court membership
Case opinions
Majority Harlan, joined by Frankfurter, Clark, Whittaker, Stewart
Dissent Douglas
Dissent Brennan, joined by Warren, Douglas
Dissent Black

Flemming v. Nestor, 363 U.S. 603 (1960), was a United States Supreme Court case in which the Court upheld the constitutionality of Section 1104 of the 1935 Social Security Act. In this Section, Congress reserved to itself the power to amend and revise the schedule of benefits.


Ephram Nestor challenged this Section after he was denied Social Security payments as a deported member of the Communist Party. He argued that a contract existed between himself and the United States government, since he had paid into the system for 19 years.

Nestor, an alien, became eligible for Social Security payments in 1955. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Section 202(n) of the Social Security Act provided for the termination of Social Security payments when an alien is deported for being a member of the Communist Party.

Opinion of the Court

The Court ruled that no such contract exists, and that there is no contractual right to receive Social Security payments. Payments due under Social Security are not “property” rights and are not protected by the Takings Clause of the Fifth Amendment. The interest of a beneficiary of Social Security is protected only by the Due Process Clause.

Under Due Process Clause analysis, government action is valid unless it is patently arbitrary and utterly lacking in rational justification. This provision of §202(n) is not irrational; it could have been justified by the desire to increase the purchasing power of those living in America, because those living abroad would not spend their payments here.


This case goes to the heart of an interesting question: What is property? The Takings Clause of the Fifth Amendment states that "nor shall private property be taken for public use without just compensation." In this case, the court had to determine whether a person's interest in his Social Security benefits is "property" that is protected by the Fifth Amendment. As noted above, the court found that it was not.

The case has been criticized on many grounds. In dissent, Justice Black argued that the Court's holding was motivated by anti-communist bias. Charles A. Reich argued that Social Security benefits should be considered to be "property" for the purposes of the Fifth Amendment. Social Security, he argued, is a compulsory substitute for private property, is heavily relied on, and is important to beneficiaries. The beneficiary’s right to Social Security, he argued, should not be subject to public policy considerations (especially not something resembling a loyalty oath, as was the case in Flemming). According to this argument, allowing government benefits to be revoked in this way too extensively threatens the system of private property. Protecting private property is an important goal, he argued; the Framers thought that protecting private property would be one way of protecting individual liberty.

Further reading

External links

  • Full text opinion from FindLaw.com
  • Case Details from the Social Security Administration