Tuesday, January 13, 2009

Why the Supreme Court will take on Haas

[Note: For all you Haas-watchers out there, the United States Supreme Court will be deciding in a meeting on Friday, January 16, whether it will grant a writ of certiorari in the Haas v Peake case. In all likelihood, that decision may not be made public until after the Inauguration of President-elect Obama on the 20th. However, word might still get out, so stay tuned. Keep checking here starting late Friday afternoon.]

[certiorari: requesting a full case history from a lower court for review. It is the signal that the court will hear a case, and oral arguments will be scheduled.]
Many Blue Water Navy types have been expressing their frustration over the actions of the Department of Veterans Affairs [DVA] since the enactment of the Agent Orange Act of 1991. Indeed, on the VASVW Forum last evening, one member detailed the four changes in the definition of "Service in Vietnam" starting with the one that took Blue Sky Air Force Veterans out of eligibility in 1992-3. Actually, you can start earlier than that when they actually refused to include Veterans of Thailand-Laos-Cambodia [TLC] right from the start of the 1991 Act. TLC Veterans have never been permitted by the DVA to be eligible for Agent Orange presumtive exposure.

[Note: Amici is the plural of Amicus -- short for Amicus Curiae -- friend of the court, a brief filed on behalf of one party in a case, ostensibly as a friend to the court to add clarifying argument to the case. In this case, the "friends" are The American Legion, The Military Order of the Purple Heart, and The United Spinal Association, in support of petitioner, Jonathan Haas.]
Now we have seen the Amici Brief filed in the Haas v Peake case, currently pending a decision on a request for certiorari. The brief is another extremely well written legal document filed in this case. It, too, takes to task the Federal Circuit Court that ruled against Haas last May, citing the pro-veterans canon, and that it cannot be placed under Departmental Deferernce in determining Congressional intent. It addresses the issues in the light of the power of the Department of Veterans Affairs as demonstrated by the history of the Agent Orange Act.

What we mean about the Amici Brief is that it addresses what the VASVW member was writing about, which, in plain language, is the growing power of the DVA to dictate the terms of what Congress intends, making changes without Congressional approval, or expressions of intent, and in short abusing the Department's power to carry out the will of Congress, and therefore, the will of the people.

All presidents, when they come into office, quickly become engaged in a dispute with Congress over power. The balance of power between the executive branch and the legislative branch is struggled over in every administration. The conduct of the Department of Veterans Affairs is just a part of the struggle between the Bush Administration and a Congress which has grown more and more oppositional with every election. Make no mistake about it, the Bush team picked up where the Clinton team left off, a fight which started before the G. H. W. Bush presidency, when the Agent Orange Act of 1991 was passed. Indeed, the DVA never allowed the TLC Veterans to get their slice of the AO pie. So this phase of the fight started when the bill was put into effect by the DVA in 1991.

Whether you realize it or not, our struggle is an example of this ongoing fight between the Executive and the Legislative branches of our government, a struggle that has been conducted by every Congress and every Administration since the adoption of the United States Constitution. Indeed, the so called "balance of power" we learned about in high school civics classes is held together by the tension of this struggle. Without its ebb and flow, one branch would become too powerful. And lest we forget, from time to time, the arbiter of the struggle, the Supreme Court, enters the fray to decide an issue that epitomizes the current struggle, usually slapping down one side or the other.

Our struggle indeed is about the almost overwhelming power seized by the DVA over the past nearly two decades that has resulted in an agency that serves only itself, not those it is chartered to serve. Our struggle is the resulting example of the wretched excesses of Executive Power when neither Congress nor the Courts set things right, or when they try, the Executive Branch ignores them, or as in this case, fights them every inch of the way to keep the advances in their power that they have seized.

There are two ways to stop them. Congress can pass a resolution expressing its will as it was in 1991 that all who earned the Vietnam Service Medal should be presumed to have been exposed to Dioxins, or pass a law clarifying the Definition of Service in Vietnam [the Agent Orange Equity Act of 2008, and now 2009, that we and the VASVW strongly support].

Or, the Supreme Court can agree to hear the case [grant certiorari], and see that the DVA has corrupted the tenets of law previously set by the Supreme Court [the pro-veterans canon], and set things right that way.

We, that is the writer of this blog, and the VASVW actually favor the passage of the law, AND the Supreme Court ruling in favor of Commander Haas. That would put a clear end to the abuse of power, and the abuse of Blue Water Navy, Blue Sky Air Force, and TLC Veterans. It would force the DVA to completely back down and undo all the changes it made to the original Agent Orange Act concerning eligibility of who served where. Indeed, the proposed legislation we have submitted leaves no room for the DVA to do anything but process all those claims back to the date of the first claim, and to do so expeditiously and with all due haste. Reinforcement by the court could bring an earlier start time to this process, based on how far the Court expands the application of the case...it could issue a ruling beneficial only to Commander Haas, or it could reset the Agent Orange Act of 1991 to its original parameters.

Regardless, we believe the best course is to achive victories in both arenas, the Court AND the Congress. Then there can be no doubt. And frankly, if and when that day comes, we will celebrate and not before...because on that day, a bunch of bureacrats will have been enjoined from lying to us when they try to tell us we "did not serve in Vietnam."


”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"It follows than as certain as that night succeeds the day, that without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

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