The systemic delays veterans are forced to confront in the VA’s claims adjudication process are not only morally unconscionable, but they also violate the Due Process Clause of the Fifth Amendment. The Constitution, which empowers the President to send the Armed Forces into battle, also forbids the executive branch from depriving a veteran of “property” without providing “due process of law.” It is well established that statutory entitlements, such as veterans’ disability benefits, are a constitutionally protected form of “property,” and that as a result, the government may not deprive recipients of their entitlements without applying fair procedures. More recently, courts have also found that applicants for entitlements—those individuals whom the government has yet to adjudicate as qualifying recipients— possess a constitutionally protected property interest that affords them a fair adjudication of their entitlement claims. In this Article, we argue that the VA’s nearly five-year delays in adjudicating claims for disability benefits that affect the essential and basic needs of veterans fail to provide veterans with the fair adjudication to which they are entitled. As a result, we conclude that the judiciary must take remedial action. We then explain why an equitable injunction directing the VA to remedy these delays within a fixed deadline is the only way to adequately safeguard the due process rights of veterans. This Article proceeds as follows: Part II provides the history, background, and mechanics of the VA and its claims adjudication process. Part III analyzes the claims adjudication process in light of the Due Process Clause of the Fifth Amendment. Part IV discusses the judiciary’s role in remedying systemic constitutional problems, and then proposes an injunction to resolve the VA’s widespread due process violations.
Michael E. Serota and Michelle Singer,
Veterans’ Benefits and Due Process,
90 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol90/iss2/5