The Supreme Court is hearing oral arguments next week in Howell v. Howell.
After I filed the friend of the Court Brief for Veterans of Foreign Wars and Operation Firing for Effect, Respondent’s Brief and the Petitioner’s Reply have been filed.
The Solicitor General also filed its brief, supposedly representing the view of the federal government (more on that below).
My summary of the legal issues as presented in our brief leads to but one conclusion: the Arizona Supreme Court decision should be reversed because the People of the United States, through the Constitution’s vesting of exclusive, enumerated powers over military affairs in Congress provided, since 1776, military veterans with retirement and disability benefits exclusive of state courts’ powers to consider such benefits as marital property consequent to divorce.
Congress’ exclusive and broad powers under the Military Powers clauses, Art. I, section 8, clauses 11 through 13, inter alia, gives it full preemptive authority over state courts in domestic matters that relate to marital property distributions.
There is no issue with whether there is implied or full-field preemption of state law by federal law, because the preemption is express via the enumerated powers given to Congress in the Constitution; an authority even the States explicitly cede in the Tenth Amendment. This is supported principally by the Uniform Services Former Spouses Protection Act (USFSPA), 10 USC 1408 and 38 USC 5301, the latter of which provides that state courts have no authority to distribute or otherwise assert control over funds designated by Congress through the Secretary of Veterans Affairs for the sole purpose of providing military retirement benefits, disability benefits, and special compensation benefits.
The Supreme Court in McCarty v. McCarty held that Congress has full preemptive authority over states courts in the distribution of veterans’ benefits, and that only subsequent acts of Congress could make inroads into those express powers to allow the states to exercise such authority over these congressionally mandated funds. That is what Congress did in the USFSPA, 10 USC 1408, but limited that divestment of authority to only a portion of the military retirement pay to which the veteran is entitled. All other congressionally mandated funds, the remainder of retirement pay, the portion waived to receive disability pay, disability pay itself, and any special pay, is still and was always off limits.
Nearly 20 years later, the Court in Mansell v. Mansell simply clarified this was the clear intent of Congress.
Nothing has changed, except for those rogue state courts that have continued to ignore this foundational principle of constitutional hierarchy in the name of equitable distributions of property over which the states have neither authority or jurisdiction by virtue of Congress’ enumerated Military Powers and those express federal laws that have been passed thereunder providing veterans’ benefits and protecting them from state court encroachment. See U.S. Const., Art. I, section 8, clauses 11 through 13; 10 USC 1408 and 38 USC 5301.
Unfortunately, and it is sad to see, the Solicitor General’s (SG) Office is still populated (at the lower levels) by lawyers from the prior administration, which had an agenda counter-opposed to respecting the fundamental precept of our nation’s carefully crafted system of federalism as expressed in the elegant document that is the United States Constitution. Thus, this prior administration’s legacy remains and is continuing to pursue to its dying breath, that agenda that tears at every fabric of this instrument that preserves the orderly functioning of our republic.
This is reflected in the fact that the Solicitor General has not changed course, as the Solicitor General did in Mansell v. Mansell in favor of the veterans, and thus, continues to adhere to the legally erroneous view that state courts have this unbridled authority to divest veterans of their only source of income when they return from war maimed and unable to work due to their physical and psychological injuries.
The Solicitor General’s position, which is supposedly that of the federal government, is that a former spouse can have a vested interest in something that Congress, a priori, never gave the states authority over in the first place, and therefore with respect to which never divested these monies to be paid over to former spouses in marital property settlements.
The USFSPA is the only mechanism by which Congress ceded any, and limited, authority over these monies to the states.
The amicus curiae brief filed by Veterans of Foreign Wars and Operation Firing for Effect speaks for itself.
Unfortunately, the stars may not be aligned just quite right as we have a divided court, and a divided executive branch with the Solicitor General being derelict and not yet healing to the current administration’s promise to protect veterans.
Amicus Curious 