Amicus Curiae Brief Filed in United States Supreme Court for Veterans of Foreign Wars and Operation Firing for Effect

On January 24, 2017 I filed this amicus curiae (friend of the court) brief in the United States Supreme Court addressing the propriety of state court disposition of veterans’ disability and special compensation pay in marital property divisions consequent to divorce.

This issue has been hotly debated since the mid-1960’s. Despite two unequivocal Supreme Court cases explicitly holding federal law prohibits, i.e., preempts, state court authority over veterans retirement and disability pay, an Act of Congress doing the same thing, and a federal anti-assignment provision that without doubt bars courts from doing this but for a very limited exception, state courts continue to find ways to get around the federal law.

Military disability and retirement benefits have been a staple of the veterans’ rewards for service to his or her country since 1776. Congressional authority to provide such benefits has no greater preemptive weight than that given to it through the specifically enumerated “Military Powers” clauses in the U.S. Constitution, Article I, section 8, clauses 11 through 13. The necessary and proper clause further supports absolute and exclusive federal preemption of state court authority in this unique area. Even the Tenth Amendment, which reserves all powers not specifically granted to the federal government in the Constitution to the States and to the People, specifically defers to Congress’ enumerated powers in Article I. And, finally, the Supremacy Clause, Article VI, section 2 of the Constitution provides that no state constitution, statute or judicial decision can contravene the enumerated Article I powers of Congress.

Judicial deference is at its “apogee” when regarding benefits authorized by Congress for the protection of our nation’s veterans.

When state courts disregard this authority, they take from disabled veterans the benefits which are specifically purposed to supplement the veterans’ inability to achieve equally gainful employment in society after he or she has served the country

The state courts blatantly disregard these specifically designated funds by ordering veterans to pay their former spouse from whatever funds they have, even if that means the veteran’s only source of income will be diverted back to the other party. Veterans who are severely disabled, many of whom are suffering from PTSD, have neither the means nor the capacities to fund an adequate legal defense, much less withstand the scrutiny of divorce lawyers, state court judges, and cold, senseless bureaucratic functionaries who ensure that every last penny is taken from the veteran. Often, the veterans end up homeless, or worse, they commit suicide. This has been described by at least one state as an “epidemic”.

The United States Supreme Court now has the opportunity to put to rest the notion that state courts ever had any authority over these specific benefits.

I am proud to have been able to contribute to this important issue, so much so that I did not ask for compensation for the preparation of this brief.



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