Chevron Defernce under fire, this is good for Vets!!!!

[broncovet]

Its high time the VA is prevented from getting their way with Veterans, at Veterans expense.

The "Chevron" deference, from the 1980 Supreme Court, basically means that a government agency gets to interpret any 

laws pretty much how they see fit.  

Example:  In Howell, congress is quoted as saying:

Quote

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

However, the VA has decided to deny many Veterans SMC S, if they show up to a c and p exam, as that means they 
"can" leave the house.  

The way I see this is that any TDIU Vet should get SMC S...because they are "unable to overcome their particular disabilities and leave the house in order to earn an income"...by defination of tdiu.  

In a recent interview between Senator Hatch, and Kavanaugh, Mr. Kavanaugh indicated that we need a "seperation of powers", that is, a "suggestion" that Chevron should be overturned. Mr. Kavanaugh was specifically addressing Chevron Deference, per Mr. Hatch's question. 

  Because of Chevron deference, VA gets away with a lot of stuff..they just interpret stuff to their own pleasing and we cant

do much about it because of Chevron Defernce.  We need Cheveron Deference overturned, so that VA does not continue to have its way with Vets.  

Im in a fight with VA over this very issue, that I have addressed above.  VA has "rewritten" congress intent, above to mean that the VEteran has to be "substantially confined" to his home.  This was not congress intent.  The Veteran can leave his home to go to the doctor, to get groceries, or anything else, he just cant leave the home "to earn an income" and get SMC S.  

By the VA making this law more restrictive than congress intended, many Vets are denied benefits that should get them.  And, this is just one example, VA pulls this stuff every day.  

Edited September 5, 2018 by broncovet

[GeekySquid]

On 9/5/2018 at 8:19 AM, broncovet said:

Mr. Kavanaugh indicated that we need a "seperation of powers"

@broncovet

While I understand your issue with the Chevron Defense, it is much more than just the VA and veterans issues covered by that decision.

Pick your favorite issue (besides the VA stuff) and then decide if you want a random judge with zero actual experience in that area of law, life or business, deciding that the experts who write the rules at the agencies are wrong.

Are you into the environment? how will/would you feel to find out that a judge 3 states that you are downwind from, away decided that the EPA rules on smog get thrown out and all their factories can now belch out billions metric tons of smog and poison with no regard to the environment?

Of how about water rights. Imagine you are a farmer on a river and Nestle or Avian opens a bottling plant upriver from you. A judge with stock in the company decides that they can suck out every drop of water despite Federal Law and Interstate Water Rights Treaties.

What about Transportation and Driving? say a judge decides that DUI laws or speed limits are out despite what the NTSB and DOT say.  What if he says Insurance is not required and if you get hit by someone that is your tough luck?

Those and a million other examples rely on the Chevron Defense ruling to prevent activist or uninformed judges from making rulings that void regulations without concern for anything or anyone other than the case at hand.

Just something to think about.

 

 

 

[Buck52]

GeekySquid ,

makes some very interesting comments!

[broncovet]

Judges have an education (Phd) which requires a "wide variety" of topics.  Virtually all have a JD, which means they have at least a Bachelor's degree in "general topics" before they even start to law school.  Things like Math, English, Literature, even sports.  Chevron Deference, means the agencies are just too powerful, and VA is a classic case.  The problem with the VA is they not only WRITE their own rules, they interpret the regulations, (with Chevron deference), and enforce them with the VAOIG Kangaroo court.  

So, corruption grows in the VA unabated.  

Further, about 46 percent of CAVC cases are "remanded" anyway, where guess who renders a decision...the VA.    This tips the balance too far in favor of the Agencies, which are already too powerful.  Our country was built on a "balance of powers", which has gotten lost, in part, with Chevron Deference.  

Source:  I have a college degree, (Bachelors, plus most of my masters)  and I know what courses it takes to get a degree.  

[GeekySquid]

4 hours ago, Buck52 said:

makes some very interesting comments!

Thanks @Buck52,

I am certainly not against having the courts review, and faster, some of the bizarre an harmful behavior of the VA functionaries. A comprehensive review, in my opinion, needs to be done. The VA needs to 'hire-up' to the level of their workload, they need to have a better response process and better status indicators as well as processes beyond "calling peggy" for a veteran to get a handle on where their claim is.

For example I just found out that my "stuck" claim that is holding up my retro-pay on my recent bump to 100% is in region 320 instead of my local RO.

I literally know of no way to get to them that my retro-pay should NOT be held up as they decide a different non-related claim. As I understand things, that is not supposed to happen even at the basic RO level claims process. I just don't know how to get them to move on that issue.

Outside of that we all know that, despite the supposed veneer of impartiality, there is serious political effort in motion to stack the courts with specific ideologies favored by the controlling political party. While this is not the sole behavior of either major party, the current situation is akin to being the Autobahn of Court stuffing that will affect our lives for decades to come. This is an admitted long term goal of the specific party and one they are crowing about at all levels of partisanship.

I just hope to be alive long enough to hear the howls when the pendulum swings back the other direction and the current minority party becomes the majority. The faux-indignation and accusations will be legendary. The current party will try and erase their own culpability in fomenting that future action.

Note: I oppose the concept of Lifetime court appointments now that our average life expectancy is 80 years instead of 30-40 when our nation was founded.

I just hope our now-better educated population starts to actually think before they engage in rancorous partisan behavior.

[GeekySquid]

4 hours ago, broncovet said:

Judges have an education (Phd) which requires a "wide variety" of topics.  Virtually all have a JD, which means they have at least a Bachelor's degree in "general topics" before they even start to law school. 

@broncovet

Not trying to be disagreeable but this is an incorrect description.

Judges are typically lawyers. Lawyers, in most states, must have a Juris Doctorate obtained from an accredited Law school before they can take the bar exam. A JD is the legal professions equivalent of a PhD. and focuses solely on the laws and specific areas of practice like torts or constitutional or environmental to name a couple. JD's like PhD's can and are often very narrow areas of expertise.

A JD is NOT by definition proof of a "broad education" and neither is a Bachelors degree. Bachelors degrees, for the majority of them, focus an a single area, business, computing, health, etc. The underlying associates degree amounts to two years of learning how to write and the names of things in the area of study.

Louisiana is one example of not needing a JD to pass the bar. In LA you can get that "education" by finding a licensed lawyer who will let you learn by OJT, an apprenticeship if you will. you do not need any degree at all to be a lawyer in LA, which should explain a lot about that state though this option is rarely exercised and they still have to pass the bar exam.

Any person with a Bachelors, in almost any field, can apply to law school to earn a JD. They just have to pass the LSATs and or other required admissions tests the particular law school demands. It is no different than applying for a seat to get a PhD in social work. You don't have to step through a separate Masters program first, it is inclusive.

I am glad for you that you are working towards a Masters in something. For the record, I have two masters, business and computer science, and I  am currently ABD in my Doctoral program. l have Bachelor degrees in Business, Computing, Engineering, & Adult Education

A Masters degree in  English no way prepares a person to rule on the intricate legal aspects of Patents, Medicine, Military or Criminal Law. The same goes for an MBA or MSCS. An MFA (Masters of Fine Arts) by no means qualifies as a "broad" enough education to understand how the Internet works or the effects of Net Neutrality, much less medical malpractice or injury case law. Simply having a Bachelors amounts to someone showing up for 3-4 years and not behaving like an utter moron.

Associate and Bachelor level degrees are about functional operations, broad concepts and even skills/certifications in certain areas. They are called Undergrad degrees for a reason. Masters and Doctorate degrees are Graduate degrees and have a predicate expectation that critical thinking is a skill that the degree holder has attained. Sadly the expectation is a myth. Almost anyone with a BS/BA and $24,000.00 dollars can get a Masters degree in under two years and still be dumber than a box of hair, and lacking in the critical thinking skills a typical 8th grader is expected to have.   

As for your complaint about writing the rules by the agencies. That is exactly how our constitutionally constructed system is meant to work. You truly cannot expect that Congress will pass laws on each and every aspect of day to day processes at every agency. That belief would defy logic and reason.

Instead of elected lawmakers trying to create laws in areas they have a) no experience in, b) expert level understanding of and/or c) have a bias based on political donations and lobbying; our system has long established, since the founding, that Government agencies make the functional rules based on the Laws enacted by the Congress and signed by the President. The agencies are literally the experts.

The agencies, outside the much abused political appointee system of presidents appointing the leaders (a very serious and highly politicized problem), are expected and supposed to be staffed with experts of experienced policy making professionals. They are expected and legally required to use processes MANDATED by Laws to ensure that viewpoints are heard, public input is heard, and that proposed processes meet or exceed any legal mandates.

Do the agencies fail sometimes? certainly they do and we see that most often when a political appointee is the one who changes rules that don't follow the legally mandated processes. The VA is one such agency that over the decades as been a political football and its leaders have created programs and processes to protect it instead of those they serve.

The Chevron Defense in itself says that the people (agency staff) with the best knowledge and scope of understanding on a particular regulation is the proper and correct group to interpret the regulations. Sans a law being passed mandating a different regulatory outcome, the agency is the single best entity to interpret the rules they wrote.

That does not mean a regulation cannot be challenged in court, it means the definition, scope and intent of a regulation is best viewed in light of the agency interpretation. Chevron demands that deference be given to that expert level of knowledge and experience but does not foreclose the court from finding for the claimant and overturning the application of a regulation. Courts are required to operate using the "best evidence" standard when considering cases, and the experts who wrote the rules are typically the best source of the best evidence.

This is exactly how our system is designed to work and it was intentionally made that way. The founders had huge problems with the way European Courts handled things and made random decisions based on partisan reasoning and in favor of those they liked. Judgeships were often an heredity position of power or could be outright purchased from the Crown. Frequently the judges were not even barristers or trained in actual law. Read the Madison papers and the sources behind the Monroe Doctrine to get a fuller view of the founders thinking.

I am sure your statistic of 46 percent is right though you don't cite your source, a bad habit if you are pursuing a Masters Degree. For your own benefit you should practice citing every source not matter what you are writing. It will help you in your school work.

What that statistic means is the rules of Mandamus are working. Remand is the outcome when the Court (any court) finds there is an addressable error as claimed in the Writ. The CAVA has jurisdiction and power to only do certain things, and like with SCOTUS and every other level of Appellate Court, most often the legally correct, and constitutionally required, action is to send the case back to the lower level jurisdictional court to fix their error.

Our legal system wants as public policy for legal decisions to be made at the lowest level and that appeals and escalations are rare things; structurally it is why we have more lower courts than higher courts. The BVA acts in the stead of a "court" by operation of law and structure.

You are literally objecting to the court operating as the laws of this nation requires it to operate.

I get your frustration and in the specific I experience the same frustration, but the answer is NOT to overturn settled law and precedent. Doing so only ensures that more problems and abuse will arise, particularly in a heightened partisan environment.

The answer can be found in bipartisan legislative action specific to the VA and its processes. The answer depends on the American voters gathering the political will and desire to oust the overtly hyper-partisan legislators who are gumming up the works. The answer is removing the billions  and trillions of dollars in political dark money that floods our system. The answer lies in having a transparent process, staffed to the appropriate level to handle the volume of work.

Veterans and our needs have become a political football. played with by teams of extremely partisan players out to pander to a specific constituency, and we are not that constituency.

We have enough issues as veterans to deal with. It is harmful to us, as a group, to misdirect energy and anger inappropriately at the Chevron Defense. The net result of overturning it will opening the flood gates of outside political actors trying to influence the courts to line their own pockets at the expense of care and services that veterans need and are entitled too.

It will allow political actors to set or overturn rules at a whim and that can (and will) change with every election. I cannot fathom that any vet wants that level of chaos interfering with an orderly process to attain legal benefits, or any positive outcome. I can imagine the wealthy and powerful wanting chaos in order to create profit and give themselves the ability to leech off the taxpayers, hell they do it already and some are damn proud of it.

Look at the article ToddT posted a link to in this thread. It shows a perfect example of the value of Mandamus and demonstrates why political will can fix the problem instead of getting rid of the Chevron Defense.

The assumption that overturning Chevron will fix anything amounts to wishful thinking, it would only create more chaos, not less.