The Volokh Conspiracy

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Justice Kavanaugh Rejects The Substantive "Veterans Benefits" Canon

A careful textualist analysis that speaks more broadly to other substantive canons, including Chevron deference.


On Tuesday, the Court decided Rudisill v. McDonough. This case involved a retired Army officer who was trying to use educational benefits under two different programs. The statutory interpretation question is rather complicated. The Court split 7-2. Justice Jackson wrote the majority opinion, holding that the servicemember could use benefits from either program, in any order. Justice Thomas dissented, joined by Justice Alito, finding that the servicemember could not receive certain benefits in this case.

This is a case where Justices Thomas and Alito clearly voted against their interest. The Court's two most conservative members said GI No! The plaintiff was an Army Captain who sought to use his educational benefits at Yale Divinity School to become a chaplain.  I don't think you could have genetically engineered a more conservative-friendly plaintiff in a laboratory at the Reagan Library. This case is the inverse of Justice Scalia ruling in favor of the flag-burning Gregory Lee Johnson. If Justices Thomas and Alito found this statute unambiguously supported the federal government's position, against the veteran, I am inclined to agree. Indeed, the very last sentence of the dissent accused the majority of "ignor[ing]" the statute "in favor of an interpretation that reaches a desired outcome." We support the troops!

Here, I wanted to flag Justice Kavanaugh's concurrence, which was joined by Justice Barrett. The lower court relied on the "pro-veteran canon." Under this canon, which I had never heard of, ambiguous statutes should be read to favor granting benefits to veterans. The majority found the statute was not ambiguous, so the canon did not apply.

Justice Kavanaugh wrote a careful five-page concurrence explaining why the veterans canon should not be used at all. Regular readers will know that I routinely criticize Justice Kavanaugh's writings. But this is one of the most insightful opinions I've read from him–at least since Calvary Chapel in July 2020.

Kavanaugh wrote separately "to note some practical and constitutional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others." This analysis stretches beyond the veterans canon. Justice Kavanaugh cast doubt on substantive canons, more generally. He described a substantive canon as a "judicial presumption in favor of or against a particular substantive outcome." Kavanaugh offers several examples, such as "the presumption against retroactivity, the presumption against extraterritoriality, and the presumption of mens rea." One other, far more timely example, is Chevron deference: where a statute is ambiguous, you defer to the government's preferred reading. Indeed, Kavanaugh described Chevron to a tee:

Applying a substantive canon, a court may depart from what the court, absent the canon, would have concluded is the best reading of the statutory text. Otherwise, of course, the substantive canon would not be necessary or relevant.

I can see this passage being quoted in Kavanaugh's Loper Bright concurrence. Indeed, I suspect he wrote this concurrence as a prelude to Loper Bright.

The remainder of Kavanaugh's opinion explains why the veteran canon is basically made-up, and was an "accident" of history.

Substantive canons are typically based on background constitutional principles or long-settled judicial understandings of congressional practice. See id., at 382– 384. Because a substantive canon by definition hasimportant decision-altering effects, any substantive canon must be sufficiently rooted in constitutional principles or congressional practices. Here, no one suggests that the veterans canon rests on background constitutional principles. . . . The canon appears to have developed almost by accident.

Kavanaugh also explains why this canon conflicts with the separation of powers.

To begin with, the notion that benefits statutes should be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws. . . . And the U. S. Treasury is not a bottomless well of free money—rather, the money comes primarily from the taxes paid by the American people. . . .

In addition to that practical problem, judges have no constitutional authority to favor or disfavor one group over another in the spending process. Rather, under the Constitution's separation of powers, Congress and the President make those policy judgments. See U. S. Const., Art. I, §7, cl. 2; §8, cl. 1; §9, cl. 7. Courts must then neutrally interpret and apply the spending laws enacted by Congress and the President. Courts do so by heeding the statutory text and employing the traditional tools of statutory interpretation—not by singling out particular groups for favored or disfavored treatment.

I think Kavanaugh is exactly right (a sentence you will not write often). A substantive canon that presumes that money should be spent in favor of a particular class cannot be consistent with the strict appropriations process between Congress and the President. Congress, and not the Courts, has to make the difficult decision of how money is spent.

By contrast, as Justice Gorsuch has pointed out, the major questions doctrine as a substantive canon reinforces the separation of powers. I suspect that Kavanaugh and Barrett do not agree on the MQD, as Barrett's Biden v. Nebraska concurrence is cited nowhere in Rudisill.

Kavanaugh closes with this passage:

The Judiciary's role is to neutrally interpret those statutes, not to put a thumb on the scale in favor of or against any particular group.

Well said. And I think this statement can easily be subbed in for opposition to Chevron deference. Indeed, in Loper Bright, Paul Clement used the "thumb on the scale" imagery.

Stay tuned.