Johnson v. United States Congress

Can applied constitutional challenges be considered under 511? Can

as applied?

As applied

challenges.

We have tried to avoid using the distinction between facial versus as applied in our briefing here because That terminology risks confusion and, uh, ultimately it's a red Herring.

So let me explain what our position has always been and how as applied and facial has been, um, uh, come into this case.

Uh, so our position, the line that we have always tried to draw on is a draw is the line that this court drew in Robeson on one side of that line is challenges to statutes.

And on the other side of the line is challenges to agency action, constitutional and otherwise.

And so the reason you see this facial versus as applied terminology is because lower courts have used that terminology to describe the two sides of the Robeson line.

But that's confusing because this court uses that terminology in a more well-known context, which is the Salerno context, which is invalid as to all applications versus as to just some.

So that's not what lower courts are talking about in this context.

And so To answer your question, as applied, meaning attacks on agency action, even constitutional ones, our position is that they must go through the VJRA process.

They are covered by the text of Section 511A, whereas attacks on or challenges to statutes, those fall outside the scope of Section 511A.

But what a weird way to slice it.

I mean, I just don't understand why your line isn't constitutional

claims

go to the district court versus other kinds of claims.

And I appreciate that Robinson has that language in it, but it seems odd that you would concede that a due process challenge, for example, would go to the BVA, which I assume would disclaim its ability to review it because it says we don't do constitutional claims and we'd have all the other problems that you point to as a reason for supporting your view.

I just don't know why you would concede that a due process claim, for example, would be covered by 511.

So a couple points.

First, although however weird it seems, this distinction actually arises, we think, from both the text and context of long-standing context about what administrative tribunals can and can't do.

So from the text, this distinction comes from the words decisions under a law.

We think that that takes off the table challenges to statutes, but it doesn't take off the table other challenges to agency action.

And then in terms of context, you mentioned Robeson.

The other context is just this settled understanding at the time this statute was enacted, at least, that administrative tribunals couldn't decide the constitutionality of statutes.