U.S. Supreme Court Johnson v. United States Congress, Case No. 25-735

Audio Arguendo

This episode presents the U.S. Supreme Court oral argument in Case No. 25-735, Johnson v. United States Congress, focusing on whether Section 511A of the Veterans' Judicial Review Act strips federal district courts of jurisdiction over constitutional

Key takeaways

• Mr. Chen argues that Section 511A's phrase 'decision under a law' means applying the statute as written, which logically excludes challenges to its constitutionality from BVA review.
• The government maintains the VJRA amended prior law to require the Secretary to resolve all questions of law and fact necessary to a benefits decision, making constitutional validity a prerequisite.

Main topics

• Veterans' Judicial Review Act Section 511A jurisdictional scope
• Johnson v. Robeson precedent and facial versus as-applied challenges

Notable quotes

"A decision under a statute is a decision in accordance with the statute. It applies the statute as written."

Conclusion

The episode delivers a rigorous analysis of how statutory construction, administrative law precedent, and

Transcript preview

Speaker 5 (0:00) We'll hear argument next in Case 25735, Johnson, against the United States Congress. Mr. Chen? Speaker 1 (0:08) Mr. Chief Justice, and may it please the Court, Section 511A reaches questions necessary to a decision under a law that affects the provision of benefits. Text, context, structure, and the government's own longstanding practice make clear that 511A does not reach constitutional challenges to statutes. Start with the text. A decision under a statute is a decision in accordance with the statute. It applies the statute as written. That's how this Court construed the same phrase in Robeson. And deciding a statute's validity is not necessary to a decision under the statute. The VA did not need to resolve Section 5313's validity to reduce Mr. Johnson's benefits in accordance with Section 5313. Indeed, a decision... To disregard Section 5313 as unconstitutional would obviously not be in accordance with Section 5313. Context reinforces the point. The Board of Veterans' Appeals must make the VA's final decisions on all 511A matters, and no one in 1988 would have understood deciding the constitutionality of statutes as necessary to the BVA's decisions. The BVA had long disclaimed authority to decide those questions, and the settled understanding was that administrative tribunals couldn't decide them. If Congress meant to depart from those settled views, it would have done so clearly, but it didn't. In fact, the government itself has long understood 511A exactly the way we do. The VA responded to 511A by prohibiting the BVA from deciding challenges to statutes, and the BVA has continued to disclaim authority over those questions. The government's new reading would spurn decades of BVA practice and raise a host of anomalies and thorny questions. Among other things, it would empower the inferior officers of the BVA to render final decisions for the executive on whether to disregard acts of Congress. That presents serious Article II concerns, and none of the government's proposed workarounds is consistent with the VJRA. I welcome the Court's questions. Speaker 5 (2:16) Can applied constitutional challenges be considered under 511? Can Speaker 1 (2:22) as applied? As Speaker 5 (2:23) applied challenges. Speaker 1 (2:24) So... Speaker 1 (2:27) We have tried to avoid using the distinction between facial versus as applied in our briefing here because that terminology risks confusion and ultimately it's a red herring. So let me explain what our position has always been and how as applied and facial has come into this case. So our position, the line that we have always tried to draw is the line that this court drew in Robeson. On one side of that line is... challenges to statutes, and on the other side of the line is challenges to agency action, constitutional and otherwise. And so the reason you see this facial versus as applied terminology is because lower courts have used that terminology to describe the two sides of the Robeson line, but that's confusing because this court uses that terminology in a more well-known context, which is the Salerno context, which is you know, invalid as to all applications versus as to just some. So we, that's not what lower courts are talking about in this context. And so... To answer your question, as applied, meaning attacks on agency action, even constitutional ones, they must, our position is that they must go through the VJRA process. They are covered by the text of Section 511A, whereas attacks on, or challenges to statutes, those fall outside the scope of Section 511A. Speaker 4 (3:54) But what a weird... What a weird way to slice it. I mean, I just don't understand why your line isn't constitutional claims go to the district court versus other kinds of claims. And I appreciate that Robinson has that language in it. But it seems odd that you would concede. That a due process challenge, for example, would go to the BVA, which I assume would disclaim its ability to review it because it says we don't do constitutional claims and we'd have all the other problems that you point to as a reason for supporting your view. I just don't know why you would concede that a due process claim, for example, would be covered by 511. Speaker 1 (4:38) So a couple points. First, Speaker 1 (4:42) Although, however weird it seems, this distinction actually arises, we think, from both the text and longstanding context about what administrative tribunals can and can't do. So from the text, this distinction comes from the words decisions under a law. We think that that takes off the table challenges to statutes, but it doesn't take off the table other challenges to agency action. Speaker 1 (5:10) In terms of context, you mentioned Robeson. The other context is just this settled understanding, at the time this statute was enacted at least, that administrative tribunals couldn't decide the constitutionality of statutes. It could not decide the constitutionality of acts of Congress. And so that's where we think this... Speaker 4 (5:29) That's this case. I appreciate it. My due process is a hypothetical, but it just flows from Justice Thomas' question about... what remains under 511, and is it all constitutional claims or just the ones that, I guess, Speaker 1 (5:44) relate Speaker 4 (5:45) to the statute in this way? Speaker 1 (5:47) Yeah, I guess the final point I'd make is that this case is, like you said, only about constitutional challenges to statutes, and all you have to decide is whether that particular kind of constitutional claim falls outside of the statute. We think that there is at least arguable within the text, it is arguable whether other constitutional claims fall within it, but at least with respect to constitutional challenges to statutes, that, again, the text, the decisions under a law text takes that off the table. Speaker 6 (6:13) Well, I don't understand how your argument can be squared with the text of 511A. There are two questions, I think, under 511A. One is whether the Constitution is a law that affects the provision of benefits. It is— Either it is or it isn't, and I don't know how you draw a distinction when you're interpreting that between facial and as applied challenges. The other is whether it is necessary for the Secretary to decide the constitutional question. And again, I don't know how you draw the line. in how the text supports the distinction that you were drawing. Speaker 1 (6:58) So let me take those in order. Speaker 1 (7:02) The government agrees with us that the law that affects the provision of benefits, that doesn't refer to the Constitution, and for good reason. When Congress enacts statutes all the time that specifically call out the Constitution, when Congress wants to refer to both statutes and the Constitution, we've cited several jurisdictional examples. Okay, but Speaker 6 (7:23) in a literal sense, the Constitution is the law that affects the provision of benefits. Correct. Yes. Speaker 1 (7:30) So Speaker 6 (7:30) in a literal sense, you're saying that for some reason other than the literal meaning of the text, the law here doesn't mean the Constitution. Speaker 1 (7:40) I think what I'm saying is that context dictates a more narrow, the surrounding context dictates a more narrow construction of what a law that affects the provision of benefits means here. And that's both, you know, these ordinary... We know that when Congress wants to, in these jurisdictional statutes, refer to both categories, statutes and the Constitution, it typically says both. But also just in turning, considering the background context of the predecessor statute and what it said. Speaker 6 (8:09) Well, I'm still, I'm starting with the text of the statute that's in effect now. And if the Constitution is not a law that affects the provision of benefits for purposes of facial challenges, I'm struggling to understand how it can be a law that affects the provision of benefits for an as-applied challenge, but you draw that distinction. Speaker 1 (8:29) So that distinction actually arises. The reason that other constitutional challenges, we think, is within the scope of the statute, and again, you don't have to decide it, but we think that comes in from the previous... Earlier in the statute, it says, decide all questions of law and fact necessary to a decision. So we think that the constitutional, for example, due process challenges, that comes from the all questions of law and fact necessary to a decision. So let me try to explain this. Let me try to back up. In applying the statute as written, Speaker 1 (9:11) The agency is still always under an obligation to confirm that its own actions are comporting with the Constitution. And so while the decision under a law phrase takes constitutional challenge to statutes off the table, There is still this question of whether it is necessary for the Secretary to confirm that he's open. Let Speaker 6 (9:33) me give you an example. Suppose there were a statutory provision that says that the benefits that a veteran would otherwise receive cannot be obtained by any veteran who has said anything that is critical of the military or the commander-in-chief. Okay. Now, could the Secretary say this is blatantly unconstitutional and therefore we are not going to withhold the benefits from this veteran? Speaker 1 (10:11) So the Secretary-at-Large, if that decision comes from a principal officer, then yes. What we're talking about here is specifically the BVA because Section 511A— Well, Speaker 6 (10:24) the statute talks about the secretary. It doesn't talk about those to whom the secretary has chosen to delegate authority. Speaker 1 (10:31) Right, but Section 7104A specifically says that the final decisions on all matters that fall within Section 511A must be made by the Board of Veterans' Appeals. So when it's referring to the secretary here, Section 7104A makes clear that it means the Board of Veterans' Appeals makes the final decisions. Could Speaker 6 (10:49) the Board say that this is blatantly unconstitutional, we're not going to withhold these benefits? Speaker 1 (10:55) We don't think that the Board of Veterans' Appeals can make that call. We think that most immediately there is a regulation, 38 CFR 20.105, that says that in its decisions the BVA is bound. by statute. And so that's one reason why they couldn't. But I think the more general principle is the BVA only has powers that Congress gives to it, and Section 511A, I think, is the primary, if not the only, statute that Speaker 5 (11:23) gives. Counsel, why do we need to go down that rabbit hole? Now, maybe we do, and I'll follow you down if I have to. But 511 is about district court review, right? So say the secretary or the board or whoever. decides in their magnanimity to follow the Constitution of the United States and say the First Amendment is a thing. That would be a good day's work. But I don't know why that... Speaker 5 (11:51) would affect the scope of district court review for purposes of a challenge to the Secretary's decision. Those are two different things in my mind. Am I missing something? So I think Speaker 1 (12:02) you're right. The reason that we're talking about— There's nothing Speaker 5 (12:04) prohibiting the Secretary of the Board from following the Constitution, in other words. Speaker 1 (12:08) Sorry, can you repeat that? I didn't hear the last Speaker 5 (12:10) part. Goodness hopes that there's nothing that prevents the Secretary of the Board from following the Constitution of the United States, if in their good graces they so choose. The question we face is whether this statute, precludes district court review of a constitutional challenge and channels everything in a different direction. Speaker 1 (12:27) Correct. The reason we were going into what this requires the BVA to decide is just that this is actually a dual provision in that it's not just a preclusion provision. It also imposes a duty on the BVA to decide everything within the scope of that Speaker 5 (12:43) provision. Speaker 1 (12:43) They've got to Speaker 5 (12:43) do this. They've Speaker 1 (12:44) got to do Speaker 5 (12:44) this. And the stuff they've got to do is channeled away from district court. But I don't see how that necessarily precludes them from, if they should happen to choose to follow the Constitution of the United States, that would be okay. Right. I Speaker 1 (12:59) think that is right. I think what our position is just... Even if there were some situations where the BVA could decide constitutional challenges to statutes, that's not the issue presented here, I think, is what you're saying. The issue presented here is whether the text of Section 511A requires the BVA to decide all constitutional challenges to statutes. Speaker 7 (13:24) Well, I think it does, Mr. Chen, or at least I think that there's a pretty clear argument that it does. The Secretary shall decide all questions of law and fact necessary. to a secretarial decision under a law affecting the provision of benefits. Now, one question that's necessary to that decision by the Secretary is whether the law providing for veterans' benefits is itself constitutional. It's kind of a precondition of the Secretary's decision under that law. So this isn't about Justice Alito's back half of the sentence. It's about the front half of the sentence. The Secretary is applying, let's say, a VA law about benefits. But there's been a challenge, a constitutional challenge raised to that law. And the Secretary can't go merrily along without deciding whether the law itself can be applied. So why isn't that a question of law necessary to the secretarial decision referenced? Speaker 1 (14:22) So it's because a decision... A decision under a law is a decision in accordance with the law. Yes, it's Speaker 7 (14:31) not the back half of the sentence that's troubling me. You're right. The Secretary's decision under a law affecting benefits is probably like the benefits statute, some VA statute. But to get to a decision under that law, the Secretary is being presented with a constitutional challenge. So why isn't deciding that constitutional challenge necessary to the Secretary's decision under that law? Right. So I think… It's a precondition of applying that law that you decide the constitutional question. Otherwise, you wouldn't go any further. Speaker 1 (15:10) Right. So I think… Speaker 1 (15:14) So a dis- The Secretary, it is not necessary. As the BVA's longstanding practice shows, it's not logically necessary. Speaker 7 (15:26) Well, forget the longstanding practice, because apparently the government wants to change that practice, and apparently the government wants to bring that practice into compliance with what the words actually say, which is that the Secretary has a duty, you know, has to decide questions of law that are necessary to their decisions about benefits. what would be more necessary to a decision about benefits than deciding whether the benefits statute itself is constitutional? Speaker 1 (15:53) I think what we're saying is that this statute doesn't say necessary to a decision about benefits. The words that they use are necessary to a decision under a law. Yeah, it's necessary Speaker 7 (16:03) to a decision under the veterans' benefits laws. But the decision to a veterans' benefit law is about how much you're entitled to receive in benefits. It's not going to happen before the Secretary says, well, first we have to confront this constitutional claim about whether we can apply this statute at all, or whether we just have to toss this statute out. So that is necessary to the decision of the Secretary under the VA benefits law. The Constitution is different from the law that the Secretary is making the benefits decision under. But the constitutional question is necessary to that decision. Speaker 1 (16:45) If Congress meant to expand the scope of this statute to include constitutional challenges to statutes, the necessary to is actually the last words that it would have used. Well, you're saying Speaker 7 (16:56) like if Congress meant to expand. And I take it that that is. referencing like what the old statute said and then what Robeson said, but I'm just looking at the statute as it exists. And the statute as it exists seems to me to favor the government. Speaker 1 (17:14) I think that there are many other structural, construing the statute in that way raises a host of anomalies and problems that you can... But before Speaker 4 (17:25) you get to those problems, can you just respond to her textual point? I mean, I thought your answer was that when you look at the text of this statute, a decision is not just floating out there, that the actual phrase is a decision by the Secretary under a law. Speaker 1 (17:43) Correct. So Speaker 4 (17:44) you begin with what is that? What is a decision by the Secretary under the law? It is the Speaker 1 (17:50) particular Speaker 4 (17:50) interstices of the benefits determination once we've identified this law. I thought your point