A number of people have asked, both in comments and in emails, why compound interest isn’t the solution to all of our immortals’ money problems. It’s not a bad question, and it’s shown up in a number of places.
It turns out that this isn’t nearly as workable a solution in practice as it is on paper. There are two main reasons for this. The first is historical, and the second economic, but together they conspire to make living off your interest a little harder than it sounds.
Posted in administrative law, estate law, property law
Almost every American old enough to read has at least heard of Social Security, and with good reason: it’s been a massive part of the United States’ social safety net for three quarters of a century. The program is so ubiquitous that Social Security Numbers (“SSNs”) have become one of the primary ways that United States citizens identify themselves in official proceedings and transactions with the government.
So how would the community of superheroes and other meta-humans interact with this massive legal edifice? A lot of that is going to depend on just how open a character wants to be about their identity.
I. Social Security Numbers
One’s SSN is intimately connected to one’s legal identity. It is a unique identifier associated with one’s legal status, and without one (or a Taxpayer Identification Number), the federal government isn’t necessarily going to be totally sure that you exist, bureaucratically speaking. It’s how taxes are tracked, and it’s very difficult to engage in even the most routine government transactions without one. The statute which creates them is 42 U.S.C. § 405.
All of which conspires to make the SSN an essential part of constructing an alter ego. Of course, forging them is a crime, and just running the numbers there’s a one in three chance that whatever number you just make up is going to be currently in use by someone else (though it’s actually even greater than that given the rules for valid SSNs).
II. Taxes
The other completely ubiquitous part of Social Security is taxes. Social Security taxes are imposed by the Federal Insurance Contributions Act, better known as FICA, and codified at 26 U.S.C. §§ 3101—3128. At the moment, the Social Security tax rate is 6.2% of gross income, plus another 6.2% contributed by employers, so really 12.4%, only you never even see half of it. The self-employed must pay both halves out of their own pocket, hence self-employment taxes, but the difference is more one of perception than reality.
Either way, if you make money by working, i.e. you earn a wage or salary, the government wants its cut, and the IRS doesn’t much care who you are. To quote the Joker from a late Golden Age/early Silver Age story, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” If you’re earning money, and it’s more than a couple of grand a year, the IRS will eventually find out. So unless a character is independently wealthy–which means he’ll be paying taxes in other ways, just not FICA–it’s going to be very, very hard to evade Social Security taxes for very long.
III. Benefits
Then there’s the question of benefits. Right now, every American over the age of 67 (lower in some cases) can collect old-age benefits. Fair enough. But the actuarial tables for calculating benefits, taxes, budgets, etc. are predicated on most people dying within a decade of their seventy-fifth (or so) birthday. Wolverine could theoretically have been collecting Social Security–assuming he got his citizenship status worked out–almost since the program was inaugurated!
This is problematic for two reasons. One, when the government is cutting you a check every month, that’s one more month where someone might notice that you’re still around. A situation in Japan where hundreds of elderly people collecting old-age pensions were discovered to be missing, sometimes for decades, illustrates that while the machinery of bureaucracy does have a lot of inertia, people living beyond their nineties is still quite unusual and does raise red flags. (It also may help explain why the Japanese life expectancy is so high; maybe they simply aren’t recording deaths. But that’s neither here nor there.) So a character who is either immortal or has a longer than normal lifespan will almost certainly get noticed sooner or later. Whether or not the character minds is dependent upon the facts of their particular story, but this could be problematic for many characters.
But second, Social Security was intended as a sort of last-resort measure to prevent the elderly from becoming destitute. It doesn’t really work that way anymore, as those people who have to rely solely upon Social Security pretty much are destitute, and plenty of people who don’t need the money at all still collect benefits for decades, but that’s still the theory. The discovery of a group of people who aren’t going to die at all, or who at best are going to collect benefits for fifty plus years is likely to encourage Congress to take a long, hard look at establishing some kind of limitation on the ability of people to collect benefits forever. Depending on just how bad the budgetary situation is at that time, this could be as little as a fix to exclude the truly immortal or as draconian as limiting benefits to three decades for everyone. But some kind of Congressional action does seem pretty likely, and the existence of immortals among us might just be sufficiently distressing to the American population to give Congress the inertia it needs to actually do something about the program’s bleeding balance sheet.
The fact that even in the stories that contain the largest number of immortal beings–Highlander, anyone?–there are little more than a few hundred in the entire world is not likely to mitigate this fear either. The American media and populace are terrible at issues of scale. This, of course, is just one more reason immortals might want to keep their existence hidden, which means taking pains to conceal their longevity and identity. Simply declining to accept the benefits is probably insufficient to head off Congressional action too, since not every immortal is likely to be so charitable.
IV. Conclusion
In addition to the critical nature of SSNs in today’s increasingly connected and bureaucratic society, Social Security–and similar programs–represents a massive legal machine which superheroes must at least contemplate if they are to exist in society, especially if they are immortal or extremely long-lived. Thought must be given to the way they approach the identification, taxation, and benefits issues presented by the program.
Posted in administrative law, tax law
Last week we looked at some of the first-order questions about flying superheroes. Specifically, we examined whether it would be safe to have such people in the air at all (probably) and the registration requirements as they apply to various characters (Superman is probably okay, but Batman is going to have trouble here.).
This week, we’re looking at some of the legal mechanics involved in actually flying. Specifically, the issues of flight planning and dealing with air traffic control.
Posted in administrative law
According to the Federal Aviation Administration, there are approximately 7,000 aircraft in the air over the continental US at any given time. That looks something like this. Congress has claimed sovereignty over U.S. airspace and has given authority to the Administrator of the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103.
So what does this mean for our flying superheroes?
Posted in administrative law, Batman, Iron Man, Superman, X-Men
One of the most frequent questions this blog has generated, both in comments and in emails, is “What about Superman’s immigration status?”
This is that post.
Immigration law is a purely federal matter and is codified in Title 8 of the United States Code, particularly Chapter 12. Regulations on the subject–the practical implementation of statutes–are found in Title 8 of the Code of Federal Regulations, especially Chapter 5. There are enough different situations created by various superhero characters that we can really put these laws through their paces.
This is a subject that inherently touches on international issues, but since most of the main comic book stories are either set in the United States or completely off-planet, this post will limit itself to discussions of United States law.
The United States immigration process is really, really difficult. We’ll make reference to that chart later.
I. Superheroes Born Elsewhere but Raised in the US, e.g. Superman
8 U.S.C. § 1181 provides that with certain exceptions,
[N]o immigrant shall be admitted into the United States unless at the time of application for admission he
(1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and
(2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General
This creates immediate problems for Superman. He’s not going to have any documentation, as he never went through customs and thus never had an opportunity to acquire the appropriate documentation. The basic story is that Superman, (original name Kal-El), was born on the planet Krypton just before it was destroyed by… something. Depends who you ask. Anyway, Kal-El’s parents put him on a starship escape pod which crash landed in rural Kansas, where Jonathan Kent found him and took him home, raising him as Clark Kent, and only learning later about his super powers.
The actual history of Superman comics is of note here, as Action Comics #1 was published in 1938, when the country, still reeling from the lingering effects of the Great Depression, was smacked by the Recession of 1937. Unemployment was well north of 15%. The Dust Bowl was recent history. So the idea that a motorist in Kansas would discover an abandoned baby on the side of the road was depressingly plausible. In an age when immigration laws were far more lax than they are today, no one was going to ask any questions about the origin of such a child or his lack of a birth certificate.
Granted, the timing would mean that Kal-El would have crashed to earth sometime earlier in the twentieth century, but it seems plausible that the environment in which the comic was actually published would have a lot to do with the way original readers interpreted things.
Of course, recent rewrites do not necessarily enjoy the benefits of those earlier legal environments. Adopting a random infant is actually a lot harder to do these days, as state laws about that sort of thing create a lot of hoops for potential parents to jump through. The upshot is that some kind of documentation would be needed for an infant who basically appears out of thin air. That would require clever forgeries at the very least.
Or a retcon. In at least one version of Superman’s origin story, Jor-El did not place him in the rocket as an infant, but Kal-El was actually in a “birthing matrix” and was thus “born” on Earth, making him a natural born citizen of the United States and thus eligible to be President. Or at least that’s what the Supreme Court held in a 9-0 ruling. Depending on your views of Supreme Court jurisprudence, this may not even be the most fanciful thing they’ve ever done.
II. Adult Alien Superheroes
But this is also an issue for other characters. Kurt Wagner is a German national. Piotr Rasputin is Russian. Professor Xavier could theoretically have sponsored them as an employer under 8 U.S.C. § 1151(d), making them eligible for an employment-based immigrant visa. Take a look at the chart linked above. Persons with “extraordinary ability” are given preferential treatment in the immigration system (8 U.S.C. § 1153(b)(1)(a)) and are eligible for E1 visas. So any superhero connected to some kind of organization, public or private, e.g. the X-Men, the Avengers, the Justice League of America, etc., will probably be able to get this done pretty easily, as they’ve got an employer willing to put their extraordinary abilities to immediate use for the benefit of the country.
Still, the process is not immediate. Visas are issued on a priority basis, but getting a green card–i.e. permission to reside and work in the US permanently–can take a year or two, and actual citizenship can take up to seven years.
One final point: a lot of super characters travel really fast, and do so using their own means of transportation. Superman flies. Nightcrawler teleports. The Flash simply runs really fast, etc. Going from Metropolis to Ohio isn’t that big of a deal, as travel within the United States can be done almost entirely without government authorization, particularly if you aren’t using a commercial airline. But in addition to massive violations of airspace (there’s another post!), simply showing up in another country without going through customs is illegal. Wolverine deciding to go to Alberta to discover his origins is all well and good, but he’s going to have to cross the border somewhere (probably North Dakota), and that means either showing a passport or jumping the border. In essence, a law abiding superhero is going to need official documents, and as discussed earlier, that has its own problems.
III. Foreign Dignitaries
But what about T’Challa, Namor, or even Victor von Doom? All of these are either heads of state or at the very least official representatives of their respective governments.
Now we get into the Vienna Convention on Diplomatic Relations, which forms the basis for diplomatic immunity. But while diplomatic status does grant one certain advantages while on US soil, it does not in fact guarantee one admission to the country or provide the right to work for anyone other than one’s home country. Ejecting foreign diplomats is a serious but routine way for nations to express displeasure with other nations without committing an act of war or seriously endangering trade relations. So the fact that certain superheroes potentially have diplomatic status does not necessarily make things any easier for them. It is not entirely clear that someone eligible for diplomatic status would be eligible for the E1 visa that various characters without governmental ties would probably get. This is largely because in the real world, no one with diplomatic status seems to have tried do that, as having diplomatic status basically means one already has (or does not need) a job.
IV. Other Issues
But what about the really weird stuff? Like Thor, or the Shi’ar, or the New Gods?
Well Thor appears to have taken on the body of a citizen, which creates an interesting philosophical problem about the nature and identity of persons. This is exactly the kind of question a court is simply going to punt. It seems most likely that the court would simply grant Thor all of the legal statuses of Blake and have done with it.
Extraterrestrials are a different matter, but it would seem that there is a first-order question that needs to be asked. Actually, this question should probably be asked before any of them. Namely, “Is this character attempting to be part of the world or to blow it up?” If a character is attempting to exist in human society for one reason or another, they’ll need to deal with immigration law in some way. But if they’re, say, attempting to destroy all of reality, well, immigration status probably isn’t something they’re going to lose much sleep over. That’s obviously the extreme case, but someone intent on destroying a major city or taking over the world isn’t probably going to care much about immigration law either, nor will the legal system probably waste much time trying to nail them on something like that when there are available claims for things like attempted genocide.
It is unclear how the legal system would deal with the immigration status of extraterrestrials. Sure, the term “alien” could easily be read to include persons not from this planet in addition to persons not from this country, but practically speaking, no one is actually going to want to do that. Some other solution would almost certainly be implemented. They could simply be granted diplomatic status across the board.
V. Conclusion
Immigration creates a whole new set of problems for superhero characters, and a character that wants to stay on the right side of the law is going to need to figure out how to make this work. Fortunately, there appears to be an existing path to admittance and even citizenship for super powered characters in the form of the priority E1 visa. Other situations will probably require some degree of subterfuge if not outright forgery.
Commentary by James Daily:
An alternative approach to Superman’s status is the foundling statute, 8 USC 1401(f). “The following shall be nationals and citizens of the United States at birth…(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.” While rarely applied in the real world, a court could apply this to Superman.
Superman certainly had unknown parentage when he was found in the US under the age of five years. The real crux is the meaning of ‘until shown…not to have been born in the United States.’ In most (if not all) continuities, Superman’s true origin was revealed to the Kent’s and to him before he turned 21, but a court could decide that ‘shown’ means ‘legally proven.’ So long as Superman’s immigration status were not an issue before he turned 21, which seems likely, he may indeed be considered a US citizen.
Posted in administrative law, immigration law, superheroes, Superman
At least two major superheroes, Batman and Ironman, are the alter egos of billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.
This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?
I. Arms Revenue
Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.
That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.
In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.
Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?
The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure. For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.
Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.
II. The United States Munition List
But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.
So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.
Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?
Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.
III. Conclusion
So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.
*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.
Posted in administrative law, Batman, criminal law, international law, Iron Man, superheroes
