George v. McDonough, Brief of United States Senators Ted Cruz and Mike Lee as Amici Curiae in Support of Petitioner

22 Pages Posted: 9 Aug 2022 Last revised: 27 Jan 2024

See all articles by R. Trent McCotter

R. Trent McCotter

George Mason University - Antonin Scalia Law School

Cassandra Busekrus

George Mason University, Antonin Scalia Law School, Students

Nathaniel A. Lawson

George Mason University, Antonin Scalia Law School, Students

Date Written: March 7, 2022

Abstract

Congress has expressly authorized the U.S. Department of Veterans Affairs (“VA”) to reopen veteran disability benefits denials where the VA committed a “clear and unmistakable error” applying the then-existing law. In 1977, Petitioner’s benefits claim was denied pursuant to a 1974 VA regulation that the Federal Circuit and the VA itself later agreed was an indefensible interpretation of the underlying benefits statute’s unambiguous text.

This Court should enforce the separation of powers and reject the government’s theory of autocratic agency law, under which an Article II agency’s regulation is treated as both an Article I law and an Article III declaration of the meaning of that law. The court below improperly credited an impermissible regulation as law, when it should have determined instead that the VA’s reliance on the unlawful regulation in denial of a benefits claim was “clear and unmistakable error.” This Court thus should reverse the decision below.

Keywords: Congress, Veterans, Disability, Regulation, Veterans Affairs, Chevron, Separation of Powers

JEL Classification: K1, K23, K4, K41

Suggested Citation

McCotter, R. Trent and Busekrus, Cassandra and Lawson, Nathaniel, George v. McDonough, Brief of United States Senators Ted Cruz and Mike Lee as Amici Curiae in Support of Petitioner (March 7, 2022). Gray Center Separation of Powers Brief 22-01, Available at SSRN: https://ssrn.com/abstract=4185105

R. Trent McCotter (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Cassandra Busekrus

George Mason University, Antonin Scalia Law School, Students ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Nathaniel Lawson

George Mason University, Antonin Scalia Law School, Students ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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