The
aforementioned platypus of American veterans law evolved during two centuries
in which decisions on benefits were walled off from judicial review — a time
period that the Supreme Court has referred to as a “splendid isolation.” Brown
v. Gardner, 513 U.S. 115 (1994). So
how did veterans law become singularly isolated from the development of the American
judiciary?
Quick constitutional law quiz: Which case established the power of the
federal courts to declare acts of Congress unconstitutional? First year law students are taught that the
answer is Marbury v. Madison, but
take a close look at Marbury. What it actually says is: “It must be well recollected that in 1792, an
act passed, directing the secretary at war to place on the pension list such
disabled officers and soldiers as should be reported to him by the circuit
courts, which act, so far as the duty was imposed on the courts, was deemed
unconstitutional . . . .” Marbury itself, therefore, reminds the
reader that the case is not the first time that a statute was declared
unconstitutional. In fact, more than a
decade earlier, the first veterans benefits adjudication system was declared
unconstitutional in Hayburn’s Case, 2
U.S. (2 Dall.) 408 (1792).
The
essential problem with the original veterans benefits system was that the
Invalid Pension Act of 1792 required the courts to decide claims for disability
pensions, but also gave the Secretary of War the authority to ignore any
decision of the courts with which he disagreed.
This was deemed unconstitutional because it required the federal courts
to issue advisory opinions. (Perhaps not
by coincidence, fewer than five months after the Invalid Pension Act attempted
to assign veterans’ cases to the federal courts, the justices of the Supreme
Court submitted a “memorial” to Congress stating that the tasks assigned to the
judiciary were “too burdensome” for “the small number of judges.”) Congress reacted, in simple terms, by simply
taking the ball and going home. It
repealed the statute and simply gave the Secretary of War the duty of deciding
all pension claims without the supervision of the courts. Accordingly, the “splendid isolation” was not
a policy decision based upon a determination about veterans benefits, but
rather a separation-of-powers fight that, by historical accident, set the
system on a path that it would follow until 1988.
Of
course, there were some twists and turns along the way. The U.S. Court of Claims was established in
1855, and disappointed Civil War claimants attempted to press their claims
there after the war. However, the
Supreme Court rejected those attempts on the grounds that veterans did not have
any cognizable property right: “No pensioner
has a vested legal right to his pension. Pensions are the bounties of the government,
which [C]ongress has the right to give, withhold, distribute, or recall, at its
discretion.” U.S. ex rel. Burnett v. Teller, 107 U.S. 64 (1883). This may seem harsh, but it is quite
understandable in context. Ward Burnett
was a veteran who had used his congressional connections to obtain a special
pension at a higher rate. He eventually
decided he should be able to collect both a regular pension and his special
pension, and was suing to get both when he was brushed off by the Supreme
Court.
In
fact, Civil War pensions were highly political.
In some sessions, half the legislation introduced in Congress consisted
of special pensions for disappointed constituents and friends of
politicians. During the first session of
the forty-ninth Congress alone, 4,500 special pension acts were introduced in Congress,
and in the late 1880s, Grover Cleveland signed 1,453 such bills. Moreover, legions of special pension
examiners were sent to important districts to swing close elections by granting
massive quantities of claims before election day. Colonel W.W. Dudley, the head of the Pension
Bureau, spent two months in Ohio with a staff of clerks and examiners not only
campaigning for his Republican party, but specifically working to defeat
William Warner, the Democratic chairman of the House Committee on Pensions,
Bounty, and Back Pay, who had resisted some demands of the Grand Army of the Republic,
the leading organization of Civil War veterans.
The
Civil War pension system also had a reputation for being corrupt as well as
politicized. Shady claims agencies
engaged in a wide variety of illegal practices to have claims granted, ranging
from obtaining fraudulent evidence to planting their own employees inside the
Pension Bureau. In 1872, the Secretary
of the Interior estimated that a quarter of all pension payments were based
upon fraudulent claims. The reaction to
this corruption was a strict limit of only $10 on how much could be charged to
assist with a veterans benefits claim.
The limit did not solve the corruption problem, but had an entirely
different effect. It stayed on the books
well into the twentieth century. By the
time WWI veterans were returning, attorneys would not handle veterans claims
because of the negligible fee.
The
next chapter in the splendid isolation was written in 1933, when Section 5 of FDR’s Economy Act explicitly
exempted veterans claims from judicial review.
Although FDR was certainly a liberal who engineered much of the modern
welfare state, the New Deal was paid for by slashing $400 million for the
veterans benefits budget. FDR did not want the courts undermining his
ability to pay for other priorities, so he added Section 5 to ensure this.
After
the Vietnam War, the Supreme Court began to open the doors to the federal
courts slightly by holding that class action lawsuits could be used to
challenge aspects of the system as unconstitutional. However, the Court rejected due process
challenges to the central features of the system, such as the $10 attorney fee
limit at issue in Walters v. National Association
of Radiation Survivors, 473 U.S. 305 (1985).
The
Vietnam veterans fought hard for judicial review in the hopes that the federal
courts would assist them with their other issues. They were opposed by the established Veterans
Service Organizations (VSOs), who were quite happy with their influence over the
system. (The political term “Iron
Triangle” was invented to describe the tight relationship between VA, the VSOs,
and the congressional veterans affairs committee staffs.) However, after many years of losing battles,
Vietnam Veterans of America finally outmaneuvered the established VSOs in 1988 by
helping to engineer the passage of the Veterans Judicial Review Act (VJRA).
The
VJRA created an Article I court now called the Court of Appeals for Veterans
Claims (CAVC) to review final decisions by VA.
The Act also provided that pure questions of law (but not factual issues
or the application of the law to the facts) could be appealed from the CAVC to
the Federal Circuit. The CAVC operates
as a traditional appellate court that reviews VA decisions based upon a closed
record after briefing and sometimes oral argument. The court published its first decision at the
beginning of 1990, and four of its decisions since then have made it all the
way to the Supreme Court.
Questions to explore: Some VSOs have
argued in cert petitions that the Federal Circuit owes special deference to
CAVC rulings on veterans law due to the lower court’s expertise. (Several years ago there was a similar active
debate about the deference owed the Tax Court.)
What is the proper way for generalist courts to view the role of a
specialized Article I appellate court?
In
Shinseki v. Sanders, 556
U.S. 396 (2009), the Supreme Court sided with the CAVC over the Federal Circuit,
and commented that “[i]t is the Veterans Court, not the Federal Circuit, that
sees sufficient case-specific raw material in veterans’ cases to enable it to
make empirically based, nonbinding generalizations about [which errors are
prejudicial].” Is that consistent with
how other Article I courts are viewed?
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