They ask: Can’t the courts act quickly on the issue and order the relief we need from these laws? Here’s our answer.

“Unfortunately, treating a group of public retirees differently under Social Security does not, by itself, provide sufficient grounds to successfully challenge these laws in court,” comments Association Counsel Bill Rehrey. “Other organizations, most notably NARFE (National Association of Retired Federal Employees), have taken a long hard look at this and concluded the chances of winning in the courts are slight at best.”

According to NARFE’s analysis of the issue, the federal courts do not apply the same legal test in all cases, when called upon to scrutinize and determine if a federal law unlawfully discriminates against a group. For example, if a group claims that it is being discriminated against because of race or national origin, then the court will require the law to satisfy its strictest test.

But in cases such as the WEP and GPO, the federal court would apply a much less stringent test. Under the “weaker” test, the court would uphold the statute if there is a constitutional purpose behind it and as long as the government had some “rational basis” for treating a particular group differently.

Legal experts believe that the WEP and GPO would satisfy the “weaker” test, principally because it would be (and has been successfully) argued that Congress has a legitimate concern in strengthening the solvency of Social Security. In fact, the GPO has twice been challenged and twice been upheld by the courts, most notably in the 1993 federal case titled Clifford v. Sullivan.