United States Supreme Court Amicus Curiae Brief in Howell v. Howell, 137 S. Ct. 1400 (2017) for Veterans Service Organizations


Lex Fori PLLC attorney Carson J. Tucker, JD MSEL, filed an amicus curiae (friend of the court) brief in the United States Supreme Court on behalf of Veterans of Foreign Wars (VFW) and Operation Firing for Effect (OFFE) addressing the propriety of state court disposition of veterans’ disability and special compensation pay in marital property divisions consequent to divorce. This was a pro bono project, which makes up about 30 to 40 percent of Mr. Tucker’s practice.

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 veterans’ rewards for service to the country since before the revolutionary war and it was engrained in the Constitution thereafter. 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 14. 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 reserved all powers to the States that were not specifically granted to the federal government in the Constitution, specifically defers to Congress’s Article I enumerated powers. Finally, the Supremacy Clause, Article VI, section 2, of the Constitution provides that no state constitution, statute or judicial decision can contravene the laws that have been passed pursuant to these enumerated federal powers.

Judicial deference to Congress is at its “apogee” when addressing laws passed pursuant to its enumerated military powers. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Veterans benefits, which are specifically authorized through these laws, ensure the robust defense and security of this nation, promote the volunteer spirit of service and sacrifice, increase and preserve the morale of those who are currently serving, and most importantly, protect, reward, honor, and compensate those who have sacrificed a large part of their lives protecting this nation’s veterans.

When state courts disregard this authority and decide disability payments authorized by these laws should be diverted to another, they take from disabled veterans the benefits which are specifically purposed to supplement the veterans’ inability to achieve equally gainful employment and participation 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. Veterans who are severely disabled, many of whom are suffering from PTSD, have neither the means nor the capacity 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 issued a unanimous opinion agreeing with every one of the points made in the amicus curiae brief, and even addressed them in the order in which they were presented to the Court.