Serota on Veterans Benefits

Posted in F1@1F Friends by Mike Sacks on November 11, 2010

As we honor our veterans’ service today, I would like to recommend Michael Serota’s column at AOL News today challenging the constitutionality of the severe delays many veterans face in receiving their disability benefits from the VA.

Because of the severe psychological and physical trauma that service members endure, many veterans are unable to earn a living or support themselves. As a result, nearly 1 million veterans file claims every year seeking disability benefits to compensate them for the reduction in quality of life and impaired earning capacity caused by an injury they suffered while serving the country. These benefits can be a financial lifeline, especially since such a high percentage of the injuries incurred on the battlefield are so debilitating. Indeed, for many veterans, disability benefits are the only thing protecting them from home foreclosures, bankruptcy or even homelessness.

The VA denies about 11 percent of the nearly 1 million benefits claims filed each year, forcing these veterans to enter the VA’s dreaded appellate system, often referred to as “the hamster wheel.” The average time a veteran must wait for a benefits claim to work its way to a decision from the VA’s appellate body, the Board of Veterans Appeals, is a mind boggling 4.4 years. Even then, a large portion of the board’s cases are remanded, forcing many veterans to begin the process all over again. […]

Fed up with the injustice of these massive delays, two veterans organizations, Veterans for Common Sense and Veterans United for Truth, filed a lawsuit in the Northern District of California in July 2007 alleging, among other things, that 4.4-year appellate delays are unconstitutional. Although the trial judge in that case made a factual finding that the average wait time for a veteran’s appeal was 1,601 days, he concluded that there was in fact no legal violation.

The case is currently pending before the Court of Appeals for the 9th Circuit, which can, and should, reverse the lower court and find that these delays violate the due process clause of the Fifth Amendment, which ensures that nobody will be deprived of property without due process of law. Previous court cases have already established that veterans benefits are “property” and that veterans have a constitutionally protected property interest in receiving those benefits through fair procedures. The question that remains is whether a 4.4-year delay constitutes due process.

Read the whole column here.

Corporate Personhood Redux

Posted in Anticipation, Law and Politics by Mike Sacks on September 28, 2010

Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention.  The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption.  The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.

To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.

Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.

What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks.  Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use.  Justice Kagan will also recuse herself in this case.

Informational privacy is hardly a deeply established fundamental right.  Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles.  In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause.  And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.

In contrast to AT&T, the issue in NASA is not statutory, but constitutional.  Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest.  Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.

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