Give Veterans the Benefit of the Doubt: Chevron, Auer, and the Veteran's Canon

By Harper, Chadwick J. | Harvard Journal of Law & Public Policy, Summer 2019 | Go to article overview

Give Veterans the Benefit of the Doubt: Chevron, Auer, and the Veteran's Canon


Harper, Chadwick J., Harvard Journal of Law & Public Policy


As the Civil War drew to a close, President Lincoln spoke of the nation's duty "to care for him who shall have borne the battle and for his widow and his orphan." (1) Congress's attempts to fulfill that duty have created some hard questions for the courts. Hayburn's Case, (2) now better known for what it reveals about Founding-era ideas of judicial review and the separation of powers, (3) originated in a Revolutionary War veteran's efforts to claim benefits. (4) For about 200 years thereafter, however, Congress exempted decisions concerning veterans' benefits from judicial review. (5) Congress changed that in 1988 when it passed the Veterans' Judicial Review Act (VJRA). (6) The VJRA created the Court of Appeals for Veterans Claims (CAVC), a non-Article III court with jurisdiction over decisions made by officials within the Department of Veterans Affairs (VA,7) and gave the Federal Circuit power to review CAVC decisions on questions of law. (8) Thus judicial review of veterans' benefits decisions returned. With it came more hard questions for the courts.

Courts face one such question when doctrines of deference like Chevron (9) and Auer (10) conflict with the veteran's canon--the Supreme Court's "rule that interpretive doubt is to be resolved in the veteran's favor." (11) When a statute or regulation is ambiguous, (12) should a reviewing court defer to the VA under agencv deference doctrines, or follow the veteran's canon and resolve the doubtful language in favor of the veteran? The Federal Circuit has yet to answer that question. (13) And though a case involving this conflict (14) led the Supreme Court to grant certiorari on whether the Court should overrule Auer, the Court declined to address the conflict between the veteran's canon and agency deference. (15) So the question remains a live one.

This Note answers that question by arguing that in those interpretive battles, the veteran's canon should triumph over Chevron and Auer. The veteran's canon is a traditional tool of interpretation, (16) and as such, it should be applied to resolve ambiguity before courts defer to the VA's views on a statute or regulation. (17) This use of the veteran's canon reflects Congress's general intent in providing judicial review of the VA's decisions, (18) and its specific intent in legislating in the area of veterans' benefits. (19)

Moreover, several elements of veterans law support this result. As a practical matter, because veterans sometimes endure injuries or illnesses unique to the conditions of war, those maladies are often not well-understood. The veteran's canon helps ensure that veterans are not denied benefits when science moves at a slower pace than suffering. (20) As a structural matter, the single chain of review established by the VJRA erases the uniformity concern that may support deference elsewhere. (21) For all those reasons and more, courts should apply the veteran's canon before Chevron or Auer and thereby give veterans the benefit of the doubt in the law.

This Note makes that case in three parts. Part I provides some background on Chevron, Auer, and the veteran's canon. Part II illustrates the tension between Chevron, Auer, and the veteran's canon through the story of "blue water" Navy veterans' litigation involving Agent Orange legislation and regulation, (22) and briefly surveys the positions scholars have taken on how to resolve this conflict. Finally, Part III concludes by arguing that where such conflict exists, the veteran's canon should take priority in the interpretation of statutes and regulations in veterans' benefits schemes.

I. CHEVRON, AUER, AND THE VETERAN'S CANON: AN INTRODUCTION

Veterans law exists in an odd, long-isolated outpost of law's empire. (23) Even so, administrative law atmospherics affect the whole realm. (24) As such, this Part situates this particular puzzle of veterans law within the broader conversation about Chevron and Auer. (25)

A. Chevron's Revolution and Evolution

In Chevron, the Supreme Court handed down a decision it believed to be a restatement of "well-settled principles" of "deference to administrative interpretations. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Give Veterans the Benefit of the Doubt: Chevron, Auer, and the Veteran's Canon
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.