SCOTUS’s Chevron Deference Ruling: How it Could Hurt Veterans and the VA

Updated: July 9, 2024
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    The U.S. Supreme Court (SCOTUS) sent shockwaves through the legal, business, and government communities Friday when its ruling struck down the Chevron deference. Undoubtedly, when you hear about it online or in the news, it is associated with things like “climate change” and “food and drug safety.”  While the ruling could impact those topics, what has seemingly gone unmentioned in these articles so far is its potential impact of the ruling on the Department of Veterans Affairs (VA). 

    So, let’s look at the Chevron deference, the two indicators we have to suggest a larger, and potentially negative, impact on veterans and the VA, and what it could mean moving forward.

    What is Chevron Deference?

    Let’s break down the basics. The Chevron deference, established after a 1984 Supreme Court case, essentially said when someone challenges a federal agency’s regulation or policy with vague wording, the courts would give weight to the agency’s understanding of the policy. The rationale was that the agency’s staff are experts in their field, and therefore, their interpretation should be respected. 

    An example of this would possibly be a company suing the EPA over its policies for disposing of a particular chemical or substance. Chevron deference would lean more toward supporting the EPA, with the reasoning being they’re experts in this particular field. So the court would assume the policy was vetted and likely a reasonable legal application to this particular disposal issue.

    However, this recent ruling now rejects that decades-long precedent and instead gives the power of interpretation to judges. 

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    Chevron Ripple Effect

    It’s important to note Chevron deference rarely, if ever, was used in deciding VA court challenges. However, that’s because there’s a different deference statute, or canon for legal junkies, that pertains to veterans in cases involving legal disputes over veterans benefits.

    “There’s an exception when it applies to veterans, the Supreme Court precedent and legal precedent for the last 80 years has been different. Deference is not given to the VA; deference is actually given to veteran litigants when there’s ambiguity in the law,” said Carlos Hernandez, a trial lawyer for Carpenter and Zuckerman.

    It’s commonly referred to as the “Gardner deference,” “Gardner presumption,” or “veteran canon” in legal briefs. Since the 1930s and 1940s, the veterans canon has been used to resolve legal challenges involving veteran benefits.  

    The next little bit may get in the weeds, but stay with me. There are two instances that point to possibly trouble ahead for veterans. 

    Chevron’s Underlying Nature

    First, when the court ruled against the Chevron deference, it was striking down the nature of the precedent. One opinion going as far as suggesting it should have never been implemented because the concept of deferring to an agency’s interpretation was not rooted in constitutional or congressional practice. 

    Rudsill v. McDonough (2024) Opinions

    Secondly, In April of 2024, an Army veteran challenged the VA over GI Bill benefits. The veteran had accrued both Montgomery GI Bill and Post-9/11 GI Bill benefits. The VA attempted to cap his total benefits at 36 months, but the veteran argued for 48 months under the Post-9/11 GI Bill, citing ambiguity in the GI Bill programs’ wording. 

    The Supreme Court ruled 7-2 in favor of the veteran. The justices said there was no ambiguity in the laws, but rather, the veteran had actually met the requirements to receive both GI bill benefits. 

    Why does this case matter?  

    Remember that “veterans canon” or “Gardner deference?” Well, an opinion penned by Justice Kavannaugh, and joined by Justice Barrett in the Rudsill case specifically brought up the “veterans canon” reading:

    “Because a substantive canon by definition hasimportant decision-altering effects, any substantive canon must be sufficiently rooted in constitutional principles or congressional practices. Here, no one suggests that the veterans canon rests on background constitutional principles…” Also adding, “The canon appears to have developed almost by accident.”

    He would later go on to question the legality of the “veterans canon”, particularly when it comes to congressional funding. He even alluded to a possible situation where a case decision may include tax dollars, writing no group of individuals should get preferred treatment. That speaks directly to a veteran challenging the VA for a benefits claim, which would be paid under the National Defense Authorization Act, or the Defense Budget.

    What Does This All Mean? 

    The court voted to strike down the Chevron deference precedent, saying it’s purpose isn’t rooted in actual law. Sending a message that the court doesn’t favor statutory interpretations that aren’t linked to constitutional process (laws on the books). 

    Two justices currently sitting on the bench have gone out of their way to mention that the “veterans canon”, which primarily aims to give veterans the upper hand in VA legal challenges, is similar to the Chevron deference, in that it is not linked to the constitutional process. 

    “From the veterans perspective, the kind of coexistence having Chevron but with this exception for Gardner has allowed for decisions that are more beneficial to litigants when they’re before the Veterans Court,” Hernandez added. “With Chevron being overturned… you can see a world where that benefit that VA litigants got will no longer exist.”

    It’s conceivable to think this precedent could be challenged during legal disputes in the Board of Veterans Appeals or the United States Court of Appeals for Veterans Claims (CAVC). Appeals from the VA or the veteran could then bring a case with this statute front and center to the Supreme Court. Given what we’ve seen from this court, the statute’s future is not guaranteed to survive like it may have in generations past. 

    Hernandez forecasted that these factors could lead to a legal showdown over veterans benefits in the future. 

    “Veterans very likely in the future, because of the desire to get rid of these established statutory interpretations of law, will very likely face more unpredictability when it comes to them litigating their benefits and their civil rights.” 

    Impact on Veterans and the VA

    If the “veterans canon” were to be struck down, veterans and the VA would enter a world of volatility and uncertainty when it comes to benefits. 

    Volatility and Inconsistency

    Generally, canons like the ones mentioned above are put in place for a few reasons. First, they offer consistency and help streamline aspects of the legal process. They help judges navigate federal agency statutes and laws with vague wording that could otherwise lead to different interpretations of the same policy, thus making enforcing it impossible.  

    For example, a veteran suing the VA over benefits might face new challenges. Without the ‘veterans canon,’ veterans lose a legal advantage, and without Chevron, the VA doesn’t get automatic deference in interpreting rules. This means a veteran’s case will depend on a judge’s interpretation, which can vary. One judge might rule one way on vague language, while another judge might rule differently on the same issue, leading to inconsistent outcomes. How will this be enforced? What if one veteran loses a case but another wins on the same grounds?

    “I believe that ‘thumb on the scale’ in favor of veterans is short-lived and I believe will lead to a situation where veterans litigating their rights and benefits will be less predictable,” Hernandez said when discussing what the future of veterans benefits challenges looks like in court. “Not only will it be less predictable, you’ll have more unfavorable decisions.” 

    Another key reason is that when laws are written, it’s hard for the lawmakers who write them to see into the future and predict what kinds of ways the country will evolve. These legal approaches help navigate intentional ambiguity that is written into the law. 

    A hypothetical example of this may be if a VA benefit is created to help people with work training education reimbursement. But let’s say that policy was written in the early 1990s and did not mention anything about possible online training courses. So, in this case, without canons allowing legal flexibility, a veteran could lose access to that benefit if they’re taking an online course since it wasn’t explicitly written into the law. 

    Delays in Action

    Without canons in place to help in the legal process, it’s foreseeable that agencies could be fielding a constant flurry of lawsuits. Imagine the “veterans canon” being struck down, and the VA and attorneys for veterans are left with no idea how a court would rule in a particular case. They’d likely sue or appeal more often, which could come with a logistical headache. 

    “If a federal agency is going to be questioned at every turn when it tries to interpret laws passed in the 1930s… it will hamper the agency’s ability to enforce those laws,”  Hernandez said.

    Attorney Brandon Newberry, Marine veteran and founder of Newberry VA Disability, also spoke about this issue, adding that it “could increase the VA’s administrative burden, as it may face more legal challenges and increased scrutiny from courts. This could slow down the process of adjudicating claims and implementing policies.” 

    If the VA encounters added legal obstacles, it’s predicted that this could also delay implementing VA benefit policies because the agency would need to get hyper-specific in its policy verbiage and research the laws on the books. 

    Looking Forward

    If anything, it seems fair to assume that the Supreme Court decisions in recent sessions point to a likely overturning of more decades-long legal precedents. While it may be hard to see now, the impact of this recent decision may have been a canary in the legal coal mine about the future of the “veterans canon.” With Hernandez’s warning, many other unforeseen legal obstacles could lie ahead.

    “So what you have is a new Supreme Court justice majority that is overturning statutory law that not only litigants have clung to and that litigants can depend on but ones that Congress has assumed would be used in interpreting laws. Now we’re in sort of a wild wild West terrain, where we knew what the known unknowns were, but now we’re in an area of unknown unknowns.”

    As policies affecting the military community shift and change, be sure to check back to read how you or your family could be impacted. Never hurts to be prepared.

    Written by Jon Rehagen