The Supreme Court on Monday heard arguments in Johnson v. United States Congress, a case that could clarify whether federal district courts may hear certain constitutional challenges to laws governing veterans’ benefits, and if so, which types of challenges qualify. After roughly an hour of questions, several justices appeared skeptical of arguments on both sides.
The dispute turns on Section 511(a) of the Veterans’ Judicial Review Act, which gives the Secretary of Veterans Affairs authority over questions of law and fact necessary to benefits decisions and declares those decisions final and generally unreviewable by courts, subject to exceptions elsewhere in the statute.
Johnson v. United States Congress tests Section 511(a)
Section 511(a), and the broader VJRA, succeeded earlier, more sweeping limits on court review that the Supreme Court examined more than 50 years ago in Johnson v. Robison. There, despite language describing VA benefits decisions as final and conclusive, the court ruled 8-1 that a federal district court could hear a constitutional challenge to a benefits statute because the review bar did not extend to constitutional claims.
In the current case, veteran Floyd Johnson asks the court to reach a similar conclusion about Section 511(a), so that his constitutional challenge to a statute capping disability payments for veterans incarcerated more than 60 days can proceed in a federal district court in Florida. His attorney, Jeffrey Chen, argued that the text, context, structure and the government’s past practice support allowing district court review of constitutional attacks on statutes.
Under the VJRA, routine benefits appeals go to the Board of Veterans’ Appeals within the VA, then to the Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit. Chen maintained that constitutional challenges to statutes cannot follow that route because the BVA has long disclaimed authority to decide constitutional questions. Forcing the BVA to do so, he said, would empower inferior officers to render final executive decisions on whether to disregard acts of Congress.
Pressed by Justice Clarence Thomas, Chen clarified that he was not asking district courts to review every constitutional claim. He distinguished between constitutional challenges to statutes, like Johnson’s, which he said belong in district court, and constitutional or other challenges to agency actions, which he said should proceed through the VJRA’s review system.
Some justices questioned that line. Justice Ketanji Brown Jackson called it a “weird way to slice it,” a sentiment Thomas echoed. Chen answered that Section 511(a)’s reference to “decisions under a law” covers applying a statute, not deciding whether the statute itself is constitutional.
Justices Elena Kagan and Samuel Alito pressed back, pointing to Section 511(a)’s command that the secretary decide all questions of law and fact. Kagan suggested that includes assessing constitutionality as a precondition to applying a policy. Alito asked why the Constitution would not qualify as a law affecting the provision of benefits for purposes of the statute’s review bar.
Chen replied that the BVA, not the secretary, handles most appeals within the VJRA framework, and that when Congress enacted the statute, the Supreme Court had repeatedly indicated that administrative tribunals like the BVA could not resolve constitutional challenges to statutes. Although the government now says the BVA can rely on prospective constitutional guidance from the secretary, Chen questioned what happens when no such guidance exists. In later questioning from Justices Brett Kavanaugh and Amy Coney Barrett, Chen acknowledged that veterans could still raise constitutional issues before the Veterans Court and the Federal Circuit even if the BVA declines to decide them.
Government urges one review track for all constitutional claims
Arguing for the federal government, Kevin Barber of the Solicitor General’s office said there is no principled basis to let district courts hear some constitutional challenges but not others. He conceded the BVA’s past inconsistency on its constitutional authority but asserted that the BVA can and does resolve such questions. Otherwise, he said, the VA could be compelled to enforce a blatantly unconstitutional benefits statute.
Barber faced scrutiny over the government’s shifting position. Justice Neil Gorsuch observed that although it is sensible to read the VJRA as allowing the Veterans Court and the Federal Circuit to review constitutional claims, the government historically had not read the law that way. When Barber remarked that wisdom sometimes comes late, Gorsuch suggested it might be too late here.
Justice Sonia Sotomayor asked why a veteran should be required to navigate a lengthy administrative process not designed for constitutional challenges. Alito later invited Barber to explain why distinguishing among types of constitutional claims is difficult, and Barber cited Supreme Court statements describing the facial versus as-applied distinction as amorphous, making it a poor basis for channeling review.
Barber also warned that scattering constitutional litigation across district courts would strain an already burdened VA. When he later described such challenges as rarely successful, Jackson questioned how they could be both burdensome and easily disposed of. Barber replied that even meritless claims require significant resources if litigated nationwide through multiple courts.
The justices’ questioning left the outcome uncertain, though more members of the court appeared open to the government’s view than opposed. A decision in Johnson v. United States Congress will determine whether veterans raising constitutional challenges to benefits statutes must proceed exclusively through the VJRA’s review path or may go directly to federal district court.
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