The Supreme Court heard oral arguments on Monday in Johnson v. United States Congress, a case examining whether federal district courts can review constitutional challenges to statutes governing veterans’ benefits. The dispute centers on the reach of Section 511(a) of the Veterans’ Judicial Review Act (VJRA), which generally prohibits judicial review of VA benefits decisions—with limited exceptions. The core issue is whether the statute’s prohibition extends to challenges against the laws themselves or only to the VA’s administrative enforcement of those laws.
The litigation stems from a law that caps disability benefits for veterans incarcerated for more than 60 days. His attorney, Jeffrey Chen, framed the debate as one of statutory text and precedent, citing the Supreme Court’s 1972 decision in Johnson v. Robison. That ruling held that an earlier VA review ban did not block constitutional challenges, and Chen argued the current law preserves that principle.
Specifically, it states that “[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits” and that the secretary’s decisions “shall be final and conclusive and may not be reviewed… by any court,” except in circumstances outlined in other parts of the law. He noted that the BVA has historically avoided constitutional questions, leaving veterans without a clear path to challenge laws like the incarceration benefit cap.
According to Chen, constitutional challenges like Johnson’s cannot travel this same path, because the BVA has “long disclaimed authority to decide [constitutional] questions.” And to require the BVA to take on that role would be to “empower the inferior officers of the BVA to render final decisions for the executive on whether to disregard acts of Congress,” Chen added.
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Justices question VA’s legal vs. constitutional divide
Justice Ketanji Brown Jackson questioned Chen’s proposed distinction between statutory and administrative challenges, saying, “[W]hat a weird way to slice it.” Justice Clarence Thomas agreed, suggesting that the VA secretary’s role in deciding “all questions of law” could reasonably include constitutionality. Chen responded that the phrase “decisions under a law” refers to administrative applications, not the law’s validity—a distinction Justice Samuel Alito challenged.
Justice Neil Gorsuch pressed him on why the government had not previously taken this position.
Justice Sonia Sotomayor highlighted the practical consequences, arguing that veterans could wait years for the VA’s appeals process when a district court might resolve the issue more quickly. Justice Jackson countered that the current system forces veterans to exhaust administrative remedies before seeking judicial review, often without a definitive answer on constitutionality.
Facial challenges vs. administrative remedies clash
The justices also explored whether the VJRA’s exceptions for judicial review extend to challenges against the laws themselves. Chen clarified that his argument focuses on facial challenges, such as Johnson’s claim that the 60-day incarceration cap violates the Constitution, rather than as-applied challenges, which could proceed through the VA’s appeals process.
Justice Elena Kagan challenged this distinction, asking why the statute’s text should not include both. “[T]he Secretary can’t go merrily along without deciding whether the law itself can be applied,” Kagan said. Alito highlighted the “back half” of the same sentence, questioning why the Constitution should not be seen as a “law that affects the provision of benefits.” “You’re saying that, for some reason other than the literal meaning of the text, the law here doesn’t mean the Constitution?” he asked.
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Chen repeatedly emphasized that, in the process outlined in the VJRA, it is the Board of Veterans Appeals, not the VA secretary, that considers appeals of benefits decisions. And, he continued, by the time Congress enacted the VJRA, the Supreme Court had “repeatedly endorsed the view that administrative tribunals like the BVA couldn’t decide constitutional challenges to statutes.” The government now argues that the BVA may draw on “prospective guidance on the constitutionality of a statute” from the secretary, Chen said, but it is unclear what the BVA would do if there was no such prospective guidance available, as there would not be “in the vast majority of circumstances.” However, he later acknowledged, in response to questions from Justices Brett Kavanaugh and Amy Coney Barrett, that even if the BVA “disclaims jurisdiction,” veterans would still be able to press their constitutional challenges later in the review process, before the U.S. Courts of Appeals for Veterans Claims and the Federal Circuit.
He cited the Supreme Court’s precedent in Robison, which allowed judicial review of constitutional claims despite the VA’s earlier broad bar on review. Justice Gorsuch, however, questioned why the government had not previously asserted this position, given the VA’s resource constraints.
Robison precedent and evolving judicial review limits
Section 511(a) – and the VJRA as a whole – is a successor to earlier limits on judicial review of veterans’ benefits decisions that the Supreme Court addressed more than 50 years ago in Johnson v. Robison. Like Section 511(a), these earlier limits described the Department of Veterans Affairs’ decisions on veterans’ benefits as “final and conclusive.” The key difference is that the prior policy more broadly blocked judicial review, stating that “no… court of the United States shall have power or jurisdiction to review” the VA’s benefits decisions. The unresolved question is whether those exceptions are broad enough to include challenges to the laws themselves-or whether the VA’s administrative courts must handle them first.
The case now proceeds to briefing and oral arguments on the merits, with the Supreme Court expected to issue a decision by late spring 2024.
