Conflicting Canons of Construction: The Aftermath in Veterans’ Law

Authors

Carlissa R. Carson

Abstract

Until June 28, 2024, when the United States Supreme Court overturned decades of administrative law precedent, veterans' law judges, veterans, and practitioners alike would gather in the administrative law arena to watch an unpredictable battle: Chevron vs. Gardner. The outcome of bouts between these heavyweights was as unexpected as the plot twist in an M. Night Shyamalan film. As a result, our nation’s veterans were defeated. Federal courts tended to apply either Chevron (agency deference) or Gardner (veteran friendliness) and courts rarely mentioned both canons of construction in the same opinion. It was difficult to predict which canon of construction would be used, yet a noticeable pattern emerged. If courts relied on Chevron in a veterans' benefits case, the decision was almost always favorable for VA (the agency). In contrast, if courts relied on Gardner in a veterans' benefits case, the decision was almost always favorable for the veteran. The United States Supreme Court never gave guidance to lower courts on which canon of construction to use, so inconsistency permeated veterans' benefits cases involving interpretation of statutes. Chevron and Gardner fought for different causes; Chevron demanded deference to VA's interpretation of ambiguous statutes and Gardner still instructs courts to apply a pro-veteran interpretation when interpreting veterans’ benefits statutes. In its recent majority opinion in which Chevron was overruled, the Supreme Court made no mention of Gardner. Despite more than sixteen million veterans living in the United States, not a drop of ink has been spilled to explain the groundbreaking decision's impact on veterans and the practice of veterans' law. How will courts approach statutory interpretation in veterans' benefits cases now that Chevron has been overruled? The Supreme Court suggested in its recent Loper Bright opinion that courts should use Skidmore and the best reading doctrine to interpret statutes. How does the pro-veteran canon found in Gardner fit into this new framework? Although the Supreme Court did not mention Gardner in its Loper Bright decision, courts should apply Gardner in the post-Chevron era. Gardner is a battle-tested canon of construction. It should be used as courts determine whether a veterans' benefits statute is truly ambiguous, and it should be considered before courts settle on the best reading of a veterans’ benefits statute. This is true even in cases wherein VA offers its own interpretation and courts use Skidmore. There is no need for Skidmore to displace Gardner. Gardner helps ensure a non-adversarial system for veterans, as Congress intended, and as reflected in the Veterans’ Judicial Review Act. VA's power to persuade should be considered per Skidmore, of course, but it should be considered considering Gardner (the pro-veteran canon). This approach honors the separation of powers because Congress’s intent for a veteran-friendly adjudicatory process is clear. This proposal also promotes stare decisis because the pro-veteran canon of construction is a well-rooted tool of statutory construction that has been applied since 1994. If there is a battle between Skidmore and Gardner, it is veterans who should wear the championship belt.

Recommended Citation

Carlissa R. Carson, Conflicting Canons of Construction: The Aftermath in Veterans’ Law, 90 Brook. L. Rev. 781 (2025).
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