The Supreme Court on Monday considered whether federal district courts have the authority to hear certain constitutional challenges to laws affecting veterans’ benefits and, if they do, what types of constitutional challenges fall into this category. After just over an hour of oral argument in Johnson v. United States Congress, it was clear that several justices saw flaws on each side of the case.
The case centers on Section 511(a) of the Veterans’ Judicial Review Act, which addresses the Secretary of Veterans Affairs’ authority over benefits decisions, as well as judicial review of those decisions. Specifically, it states that “[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits” and that the secretary’s decisions “shall be final and conclusive and may not be reviewed ... by any court,” except in circumstances outlined in other parts of the law.
Section 511(a) – and the VJRA as a whole – is a successor to earlier limits on judicial review of veterans’ benefits decisions that the Supreme Court addressed more than 50 years ago in Johnson v. Robison. Like Section 511(a), these earlier limits described the Department of Veterans Affairs’ decisions on veterans’ benefits as “final and conclusive.” The key difference is that the prior policy more broadly blocked judicial review, stating that “no ... court of the United States shall have power or jurisdiction to review” the VA’s benefits decisions.
In Robison, the VA, citing this broad block on judicial review, contended that a federal district court could not hear a constitutional challenge to a benefits law. However, by a vote of 8-1, the Supreme Court allowed the case to move forward, concluding that the language on judicial review did not apply to constitutional challenges.
In the case before the court on Monday, veteran Floyd Johnson urges the justices to draw the same conclusion about Section 511(a) and hold that his challenge to the constitutionality of a law capping disability benefits for veterans who are incarcerated for more than 60 days may proceed in a federal district court in Florida. Jeffrey Chen, who represented Johnson, told the court that “[t]ext, context, structure, and the government’s own longstanding practice” dictate this result.
Under the VJRA, appeals of benefits decisions go first to the Board of Veterans Appeals, which is within the VA, and then to the Court of Appeals for Veterans Claims and U.S. Court of Appeals for the Federal Circuit. According to Chen, constitutional challenges like Johnson’s cannot travel this same path, because the BVA has “long disclaimed authority to decide [constitutional] questions.” And to require the BVA to take on that role would be to “empower the inferior officers of the BVA to render final decisions for the executive on whether to disregard acts of Congress,” Chen added.
However, when prompted by Justice Clarence Thomas, Chen clarified that he does not believe that federal district courts have the power to review all kinds of constitutional challenges. He drew a distinction between constitutional challenges to statutes – like Johnson’s – and constitutional “challenges to agency action, constitutional and otherwise,” which he said could be addressed within the appeals process outlined in the VJRA.
Several justices appeared confused by or dissatisfied with Chen’s efforts at line-drawing. “[W]hat a weird way to slice it,” said Justice Ketanji Brown Jackson. “I know,” Thomas added.
Chen asserted that the phrase “decisions under a law” in Section 511(a) requires this result, because having the authority to make decisions under a law is not the same as having the authority to decide whether that law is constitutional.
Justices Samuel Alito and Elena Kagan both challenged this explanation, emphasizing other parts of the text of Section 511(a). The “front half” of that statute states that the VA secretary “shall decide all questions of law and fact,” which, according to Kagan, seems to imply that the secretary should assess the constitutionality of a policy as a “pre-condition” before applying it. “[T]he Secretary can’t go merrily along without deciding whether the law itself can be applied,” Kagan said.
Alito highlighted the “back half” of the same sentence, questioning why the Constitution should not be seen as a “law that affects the provision of benefits.” “You’re saying that, for some reason other than the literal meaning of the text, the law here doesn’t mean the Constitution?” he asked.
Chen repeatedly emphasized that, in the process outlined in the VJRA, it is the Board of Veterans Appeals, not the VA secretary, that considers appeals of benefits decisions. And, he continued, by the time Congress enacted the VJRA, the Supreme Court had “repeatedly endorsed the view that administrative tribunals like the BVA couldn’t decide constitutional challenges to statutes.” The government now argues that the BVA may draw on “prospective guidance on the constitutionality of a statute” from the secretary, Chen said, but it is unclear what the BVA would do if there was no such prospective guidance available, as there would not be “in the vast majority of circumstances.” However, he later acknowledged, in response to questions from Justices Brett Kavanaugh and Amy Coney Barrett, that even if the BVA “disclaims jurisdiction,” veterans would still be able to press their constitutional challenges later in the review process, before the U.S. Courts of Appeals for Veterans Claims and Federal Circuit.
Kevin Barber, an assistant to the U.S. Solicitor General who argued on behalf of the federal government, appeared to take cues from the justices’ tough questions for Chen, contending that “there’s no basis” for allowing federal district courts to hear certain types of constitutional challenges but not others. While acknowledging that the BVA “in the past has been inconsistent on its authority” to address questions of constitutionality, he asserted that it “can and does” have the authority to answer such questions. To say that it does not, he continued, would be to “compel the VA to enforce a hypothetical benefits statute that was blatantly unconstitutional.”
However, Barber faced tough questions of his own, many of which stemmed from this “inconsistency” that he referenced. For example, Justice Neil Gorsuch said that while it is “perfectly sensible” to claim, as the government now does, that, under the VJRA, the Veterans Court and Federal Circuit have the authority to review constitutional claims, “the government itself hasn’t understood the law that way ... up until today.” When Barber observed that “there is a line about wisdom coming too late,” Gorsuch replied, “Yea, maybe it is too late.”
And just as other justices had pressed Chen on how “weird” it would be to allow district courts to entertain certain constitutional challenges but not others, Justice Sonia Sotomayor asked Barber to explain why a veteran should have to bring a constitutional challenge to a statute through a lengthy administrative process not designed for such appeals. “What sense is there in your system?” she asked.
As Barber was navigating a series of questions along these lines from Sotomayor, Alito jumped in with what he noted “would be, from [Barber’s] perspective, a damage-control question.” He prompted Barber to explain the difficulties of drawing the line between different types of constitutional claims that Chen had discussed. Barber emphasized that the Supreme Court itself has said “that the distinction between facial and as-applied [constitutional] claims are very amorphous,” which, in his view, makes it “a bad basis” for limiting judicial review of decisions on veterans’ benefits.
Barber went on to argue that “it would definitely be problematic to make the VA start litigating these kinds of claims all around the country,” because “[t]he VA is incredibly burdened as it is.” However, when he later described constitutional challenges to benefits statutes as “never successful,” Jackson questioned how they can be both “a burden” and “easily disposed of” at the same time. “Having to defend against meritless claims is still a great burden on the agency, particularly if they have to do it all around the country from district courts and then up to all the regional courts of appeals,” Barber responded.
Because Barber faced pushback from many of the same justices who challenged Chen’s arguments, it is difficult to predict how the court will decide the case. However, overall, more justices seemed to support the government’s position than oppose it.
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[ H/T SCOTUSblog ]
