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“Restoring Congressional Power over VA After Loper Bright Enterprises v. Raimondo”

House Veterans Affairs Committee Hearing

December 18, 2024 (recording here)

HEARING INFORMATION

Witnesses & Written Testimony (linked):

• Mr. Chad Squitieri: Assistant Professor of Law, Catholic University of America, Catholic University of America

• Mr. Jonathan M. Gaffney: Supervisory Attorney, American Law Division, Congressional Research Service

• Dr. Philip Wallach, Ph.D.: Senior Fellow, Social, Cultural, and Constitutional Studies, American Enterprise Institute

• Mr. John Vecchione: Senior Litigation Attorney, New Civil Liberties Alliance

Keywords mentioned:

• Legislative intent, Chevron deference, unelected bureaucrats/judges, congressional oversight, Veterans Affairs Servicing Purchase (VASP) program, statutory interpretation, rulemaking authority, executive overreach

IN THEIR WORDS

OPENING STATEMENTS FROM THE COMMITTEE

• Chairman Mike Bost noted that the Committee had dedicated significant time during this Congress to strengthening legislation and holding the Biden-Harris administration accountable for improving VA management. He explained that a core responsibility of the Committee is to ensure that the executive branch properly implements laws in the ways intended by Congress, and he described the long-felt disconnect between legislative intent and agency action. Chairman Bost criticized the VA’s approach to the VA Home Loan Program under the current administration, describing it as a clear example of VA overreach that went against Congress’s intent and burdened taxpayers.

• Ranking Member Mark Takano argued that the Supreme Court’s Loper Bright decision disrupted a 40-year precedent and shifted power from the legislative and executive branches to the judiciary. He noted that Congress has always retained the power to be explicit in legislation and that it could choose to delegate or withhold discretion from agencies. He expressed concern that restricting agencies’ expert interpretations would lead to policy being shaped by judges who might lack technical knowledge and be swayed by corporate interests. The Ranking Member advocated for Congress to invest in its own capacity—staff, research, and resources—to draft clear, thoughtful legislation. Without such investment, he warned that the courts and wealthy litigants would drive policy rather than the people’s representatives.

SUMMARY OF KEY POINTS

• Mr. Chad Squitieri stated that the Loper Bright decision should be celebrated because it freed courts to interpret statutes by their best reading without deferring to agency interpretations. He believed that this would encourage Congress to write clearer and more deliberate laws rather than relying on agencies to fill in the details. He suggested that Congress take advantage of this new landscape by granting discretion intentionally, using guiding principles, and limiting broad grants of authority. Mr. Squitieri said that further steps, such as examining Kisor deference and possibly eliminating it for VA regulations, could strengthen congressional control and better serve veterans.

• Dr. Philip Wallach observed that shifting interpretive authority away from agencies to courts would not solve the root issue of congressional inaction and over-delegation. He encouraged Congress to reassert itself by legislating more frequently and decisively rather than relying on agencies to craft policy solutions. He noted the Veterans Affairs Servicing Purchase (VASP) program as an example where agency-driven fixes led to potentially flawed and uneven results that Congress could have improved through direct legislative action. He echoed the sentiment that Loper Bright offered an opportunity for Congress to reclaim its policy-making role and produce more stable and equitable outcomes.

• Mr. Jonathan Gaffney explained that before Loper Bright, courts typically deferred to agencies’ interpretations of ambiguous statutes under the Chevron doctrine. After Loper Bright, courts would instead be required to determine the single best meaning of a statute without deferring to agencies, though they could still consider agencies’ expertise as a factor. He noted that while this would affect how courts review VA regulations, Loper Bright did not require Congress or agencies to change their lawmaking or regulatory processes. He stated that Congress could still influence agencies through statutory specificity, oversight, appropriations, and amendments to the Administrative Procedure Act (APA).

• Mr. John Vecchione asserted that Loper Bright allowed courts to return to independently interpreting statutes without giving automatic deference to agencies’ readings of ambiguous texts. He underscored that Congress now has a renewed responsibility to create clearly bounded delegations of authority to agencies, as agencies can no longer rely on ambiguity to shape policy. He believed this decision restored constitutional balance, with Congress reclaiming its proper legislative role and agencies acting only within their clearly defined mandates. He claimed that veterans’ interests would be better served when Congress wrote more explicit laws, eliminating the need for controversial agency-driven interpretations.

• Chairman Bost asked Dr. Wallach if the large expansion of the VASP loan purchases, from fewer than 100 a year to an estimated 60,000 loans totaling about $17 billion, resembled agency overreach seen elsewhere. Dr. Wallach responded that it was indeed a common pattern for executive agencies to vastly expand their powers beyond what Congress intended.

• Chairman Bost asked Mr. Vecchione how Congress could ensure the VA applies the same MISSION Act access standards to Residential Rehabilitation Treatment Programs (RRTPs) as it does to other forms of care. Mr. Vecchione replied that Congress could hold hearings, comment on proposed regulations, exercise the power of the purse, or pass new legislation to clarify its intent.

• Chairman Bost inquired how the Loper Bright decision might affect court views of VA and DOJ determinations regarding veterans’ Second Amendment rights if veterans have fiduciaries. Mr. Squitieri stated that Loper Bright would allow judges to interpret statutes more independently, potentially using constitutional canons that protect rights, which agencies might previously have overlooked.

• Ranking Member Takano asked Mr. Gaffney how courts would treat the veteran Gardner canon, which instructs courts to interpret veterans benefits statutes in favor of veterans, after Loper Bright. Mr. Gaffney said that Gardner remains good law but noted some justices are skeptical of substantive canons.

• Ranking Member Takano then asked if it was an overreach for courts to insert themselves when Congress explicitly delegated discretion to agencies. Mr. Gaffney replied that courts have always interpreted statutes, and if the delegation was clear, courts should respect that. If boundaries were fuzzy, courts would attempt to clarify them.

• Rep. Mariannette Miller-Meeks asked how courts would review VA actions not based on formal rulemaking. Mr. Gaffney said courts would no longer defer automatically and would use standard tools of statutory interpretation, considering agency practice among other factors.

• Rep. Miller-Meeks questioned Dr. Wallach on remedies if the VA issued guidance contrary to congressional intent. Dr. Wallach suggested that Congress should pass corrective legislation or threaten to do so, thus encouraging the VA to adhere to legislative intent.

• Rep. Miller-Meeks provided a specific example regarding VA prosthetics rules that conflicted with congressional intent. Dr. Wallach recommended legislative fixes, and Mr. Vecchione pointed out a similar issue in a past case, suggesting Congress should clarify the law if the VA misinterpreted it.

• Rep. Morgan McGarvey discussed the shift of power away from accountable agencies to unelected judges and wealthy litigants. He pointed out that since Chevron, congressional staff and capacity had not grown proportionally to the complexity of governance. He suggested that without increased legislative resources, powerful interests would exploit judicial review at the expense of ordinary people, including veterans.

• Rep. Derrick Van Orden strongly objected to the idea that Congress should pass more laws, arguing that unelected bureaucrats were effectively legislating through regulation. He voiced concern about the VASP program, highlighting that agency officials had given conflicting answers about whether the VA would evict veterans who defaulted on mortgages. He contended that allowing unelected officials to manage such large financial decisions was not only unconstitutional but mirrored Soviet-style policies, where citizens occupied government-owned property without paying. Mr. Squitieri agreed that such a scenario did not align with the Constitution’s design, restating that Congress was meant to legislate, courts were meant to interpret, and agencies should have limited discretion.

• Rep. Nikki Budzinski expressed concern that Loper Bright transferred decision-making power over veterans’ affairs from experts at VA facilities to unelected judges. She noted the VA’s long history of relying on trained medical professionals and researchers to develop specialized care and breakthrough treatments for veterans. Mr. Gaffney explained that the VA’s rulemaking authority was broad compared to some other agencies, but that explicit congressional delegation would remain largely unchanged after Loper Bright. He stated that if a court interpreted a statute’s meaning, the VA would be bound by that interpretation going forward, leaving Congress as the only entity that could amend the statute if the ruling conflicted with congressional intent.

• Rep. Keith Self noted that agencies sometimes issued rules diametrically opposed to Congress’s will and that some VA officials did not understand foundational constitutional principles. He asked who would have standing to sue when an agency’s interpretation harmed veterans. Mr. Vecchione responded that a veteran denied benefits would have standing to challenge VA interpretations in court. He stressed that, without Chevron deference, veterans might have a fairer chance in court because agencies would no longer receive an automatic advantage.

• Rep. Julia Brownley asked Mr. Gaffney about the ramifications when administrations changed and interpreted statutes differently. Mr. Gaffney said that if a court had already given a statute a definitive reading, that interpretation would bind an incoming administration. Otherwise, the agency could reinterpret the statute. Rep. Brownley also inquired if Congress could grant the executive branch the authority to promulgate rules to fill statutory gaps, and Mr. Gaffney confirmed it could, citing the VA’s authority to add presumptions for toxic exposure as an example. He further noted that if courts strictly interpreted terms like “hospital care” and “medical services,” Congress might need to be more explicit, potentially requiring it to list covered conditions.

• Mr. Squitieri elaborated on Kisor deference, which applies when agencies interpret their own regulations, noting it could be more problematic than Chevron since the agency both writes and interprets the rules. He pointed to the Kisor case, where the VA’s interpretation of its own ambiguous regulations was upheld, suggesting Congress could consider removing that deference specifically for the VA.

• Rep. Matt Rosendale emphasized that the legislative branch, not the executive, was responsible for making laws and criticized Congress for allowing agencies to exceed their statutory authority. He argued that Chevron deference had encouraged congressional laziness and overreach by unelected bureaucrats, and he praised Loper Bright for ending that deference. He asked Dr. Squitieri why Loper Bright was good for Congress, and Mr. Squitieri responded that it would prompt Congress to write clearer laws and reduce reliance on agency-friendly interpretations. 

• Rep. Rosendale also asked whether agencies should receive more flexibility. Mr. Squitieri advised against unwarranted discretion, recommending that any granted flexibility include explicit factors and limitations.

• Rep. Delia Ramirez expressed concern that the Loper Bright decision and similar rulings created complexity and uncertainty for veterans, making it harder for them to access needed benefits. She noted that the VASP program had helped tens of thousands of veterans avoid losing their homes. Dr. Wallach disagreed that inaction signaled endorsement, instead citing political gridlock. Rep. Ramirez stated that the legislative branch should focus on delivering resources effectively and not add more hurdles for veterans, stressing the importance of flexibility in responding to evolving needs.

• Rep. Amata Radewagen asked Mr. Vecchione how shifting statutory interpretations from one administration to another would affect veterans’ relationships with the VA. Mr. Vecchione noted that such “see-sawing” created uncertainty and disconnected veterans from a clear understanding of their benefits.

• Rep. Radewagen then asked Mr. Gaffney how Congress could influence VA policies going forward. Mr. Gaffney said that Congress could pass more specific legislation, amend statutes, and use its appropriations power. When asked if courts would rely more on legislative history post-Loper Bright, Mr. Gaffney responded that many judges still preferred textual analysis, making no significant change likely.

• Rep. Sheila Cherfilus-McCormick criticized Loper Bright as shifting power to unelected judges and making Congress’s job more difficult. She noted that Congress would need more expert staff and resources to draft legislation clear enough to withstand judicial scrutiny. Rep. Cherfilus-McCormick asked Mr. Gaffney about the Congressional Research Service’s (CRS) role post-Loper Bright. Mr. Gaffney stated that CRS would continue to provide objective, nonpartisan assistance but could not comment on whether CRS needed more staff or funding.

• Rep. Morgan Luttrell revisited a question raised by Rep. Brownley about balancing VA medical expertise with legislative clarity. Dr. Wallach explained that expertise should not be a cover for exceeding lawful authority. Rep. Luttrell expressed concern about shifting interpretations across different administrations. Mr. Squitieri advised Congress to write clearer laws and conduct thorough oversight. Rep. Luttrell acknowledged the need for better communication to ensure the VA’s internal actions matched Congress’s intent.

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