It is no wonder that the veterans shout and curse. It is also not surprising that many of them no longer feel attached to this country as their home. They have not forsaken us; they feel that we have forsaken them. I want to add my voice to their shouts and curses.
— Daniel K. Inouye1
Introduction
The Gardner presumption, also known as the pro-veteran canon, is a substantive canon of interpretation named after the Supreme Court case Brown v. Gardner.2 The canon instructs courts to construe ambiguous statutes concerning veterans’ benefits in favor of the veteran.3 While the canon today rarely acts as a tiebreaker,4 it has historically represented a strong congressional intent to care for veterans. Even in cases where the Gardner presumption is not outcome determinative, it acts as a powerful guiding principle for judges interpreting veterans’ benefits statutes.5 Yet recent cases from the Supreme Court6 suggest that the canon in its current form may be at risk.
To establish the practical importance of Gardner, this Note begins by describing the challenges veterans face in receiving benefits from the Department of Veterans Affairs (VA). It next describes the history of the Gardner presumption, tracing it from the Revolutionary War era through the present day, demonstrating the canon’s vitality from the earliest days of the nation through the end of the twentieth century. The Note then describes the current, vulnerable state of the canon based on the opinions in Rudisill v. McDonough7 and Bufkin v. Collins8 and analyzes the canon’s minimal usage at the Federal Circuit over the past ten years. Finally, it argues that Congress can and should codify this canon to ensure its intent to benefit veterans is honored by courts and its coequal role is asserted in the federal system.
I. The VA and Access to Justice
The VA occupies a curious place in the landscape of federal administrative agencies. On one hand, it is one of the only agencies with a pro-claimant “duty to assist” benefits applicants,9 with statutes that govern what is envisioned to be a nonadversarial, collaborative process.10 On the other hand, the agency receives considerable criticism for falling short of this ideal.11 Gardner’s presumption is an important tool to protect veterans in this strange administrative landscape in which veterans’ claims historically had been barred from judicial review, and where access to justice today continues to be a struggle.
From 1921, when Congress created a key predecessor to the modern VA,12 to 1988, when Congress passed the Veterans’ Judicial Review Act,13 veterans dissatisfied with VA adjudications had no access to independent judicial review.14 The final stop for appeals was the Board of Veterans’ Appeals, which has always answered to the Secretary of the VA.15 Even the Administrative Procedure Act,16 which broadly provides for judicial review of final agency action, originally did not include the VA in its ambit.17 No other federal benefits agency had been so secluded from judicial review.18 In fact, the Supreme Court and the U.S. House of Representatives have referred to this period as one of “splendid isolation.”19 Congress eventually established judicial review over VA adjudications to address the agency’s arbitrary decisionmaking, account for the breakdown of the nonadversarial system, and ensure that veterans have similar due process rights to those of other beneficiaries.20
Yet despite the introduction of judicial review, access to justice challenges continue to impede the courts’ independent review of VA decisionmaking, with real-world consequences.21 A veteran dissatisfied with a determination must first appeal to either a higher-level official in their regional office or to the Board of Veterans’ Appeals — with both offices being VA institutions whose target processing time for a hearing is 730 days.22 Veterans are generally not entitled to free legal representation throughout this civil appeals process.23 Some secure private attorneys on contingent fee schemes in which varying percentages of veterans’ back pay are taken as compensation.24 Contingent fee rates before the VA are effectively capped at 33.33%, and 20% or less is considered presumptively reasonable.25 Some of the 1.5 million veterans living in poverty26 are able to secure representation through legal aid organizations,27 but the rest who cannot secure a private attorney fall into the estimated 92% of low-income Americans who face their civil legal issues without adequate representation.28
This historical lack of access to judicial review is perhaps one reason that the VA continues to fail in its duty to care for veterans. In 2023, there were an estimated 15.8 million veterans in the United States, constituting about 6% of the country’s civilian adult population,29 with about nine million enrolled to receive VA health care.30 Despite over $407 billion appropriated to the VA by Congress in fiscal year 2025 alone,31 complaints about the VA’s handling of veterans’ mental and physical health abound.32 Black veterans approve of the VA at the lowest rate of any racial group and are 14% less likely to be approved for disability compensation than white veterans.33 Only 44% of female veterans are enrolled in VA health care, compared to 62% of all veterans.34 And despite rhetoric from both sides of the aisle on the importance of caring for veterans,35 the veteran suicide rate remains 72% higher than that of the civilian population.36
The small number of suits with counsel that proceed past internal VA appeals to Article III independent judicial review are thus already the result of long-awaited and hard-fought legal odysseys.
II. Gardner and the History of the Pro-Veteran Canon
A. Fred P. Gardner
Fred P. Gardner enlisted in the United States Armed Forces and served on active duty from April 1953 to January 1955,37 deploying to fight in the Korean War.38 When he returned, he received health care from the VA.39 Mr. Gardner underwent surgery at a VA facility in 1986 to remove a herniated disk.40 During the surgery, he sustained a new injury that he claimed resulted in “progressive nerve damage and muscular wasting in the left leg,” as well as “complete[] disab[ility].”41 By the time his case reached the Supreme Court, “Mr. Gardner w[ore] a leg brace, use[d] a cane, require[d] a wheelchair for hospital visits, and [wa]s disabled from employment.”42
Mr. Gardner filed a claim with the VA for additional compensation based on the problematic surgery.43 Under a statute mandating additional compensation for injuries related to VA-provided medical care, Mr. Gardner argued that his new injuries qualified him for additional disability compensation.44 The VA Regional Office in Waco, Texas, denied his claim45 under a regulation promulgated by the VA.46 The regulation stated that an injury claimed under the statute is compensable only when the injury “proximately resulted [from] carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the [VA],” or from “an ‘accident,’” defined in the regulation as “an unforeseen, untoward event.”47 This fault requirement on the part of the VA, articulated in the regulation but not in the statute, constituted the primary issue on appeal.
The Supreme Court ruled unanimously in favor of Mr. Gardner.48 Justice Souter explained that the plain text of the statute did not permit the agency to require accident or fault.49 The Court rejected the VA’s argument that the word “injury” in the statute implied a fault requirement, or at least was ambiguous as to fault and thus should have been read in favor of the agency under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.50 The Court found that even if the word “injury” were ambiguous, it would not be resolved in favor of a fault requirement because of “the rule that interpretive doubt is to be resolved in” favor of the veteran.51 This short parenthetical constitutes the basis of the pro-veteran canon as commonly cited today.52
In addition to providing the modern basis for the pro-veteran presumption, Mr. Gardner’s case highlights the importance of judicial review over the VA. Without independent judicial review of VA practices in this instance, Mr. Gardner would not have been compensated for his injuries suffered at the hands of VA surgeons.
B. The Pre-Gardner History of the Pro-Veteran Canon
The Court did not create deference to veterans out of thin air in 1994. While the veterans legal community now refers to the pro-veteran canon as the Gardner presumption, this naming implies a false recency.53 Congressional intent to care for veterans has been evident since before the Founding.54 This intent is seen in both pro-veteran legislation and the Court’s longstanding recognition of this intent.
For example, the Court held the Invalid Pensions Act of 179255 to be unconstitutional in Hayburn’s Case,56 decided in that same year.57 The legislation, a legacy of past enactments by Congress and tireless advocacy by George Washington on behalf of the troops he had led in the Revolutionary War,58 had forced judges already riding circuit to adjudge individual veterans’ claims.59 In considering the case, Justice Iredell and District Judge Sitgreaves acknowledged the importance of respecting congressional purpose toward veterans, emphasizing “[t]he high respect we entertain for the Legislature, our feelings as men for persons . . . and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of Congress, so conspicuous on the present . . . occasion[].”60 Judge Greenberg, who currently sits on the Court of Appeals for Veterans Claims, has stated that the case represents early evidence of a court recognizing “benevolent congressional intent”61 to veterans. Following Hayburn’s Case, Congress passed new pension laws for veterans disabled from the Revolutionary War in 1806,62 1818,63 and 182364 that removed the unconstitutional design fatal to the 1792 legislation.65
The sustained legislative response to Hayburn’s Case demonstrates how veterans historically utilized the political process rather than the courts to secure benefits. Throughout the nineteenth century, courts considered these statutes unambiguous and thus had little occasion to apply any interpretive canons.66 However, early “glimmerings”67 of a presumption in favor of veterans can be seen in lower court cases68 and authorities69 of the time.
The sweeping Soldiers’ and Sailors’ Civil Relief Act of 191870 following World War I, and the repassage of that Act in 1940 during World War II,71 led to the administrative complexity that resulted in more litigation related to veterans issues and thus a more active application of the pro-veteran presumption.72 The creation of the VA in 1930 also unified veteran-related issues into a single agency whose actions veterans could challenge.73 As the VA grew in the late twentieth century, so did the Court’s recognition of this growth: “The solicitude of Congress for veterans is of long standing. Veterans’ pensions, homes, hospitals and other facilities have been supplied on an ever-increasing scale. Many veterans . . . have had to depend upon these benefits for long periods of their lives.”74
It was in this era of burgeoning veterans law that the direct origin of Gardner’s presumption can be found in case law. In 1943, the Supreme Court stated in Boone v. Lightner75 that “[t]he Soldiers’ and Sailors’ Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.”76 When deciding a question under the Selective Training and Service Act of 194077 in Fishgold v. Sullivan Drydock & Repair Corp.,78 the Court cited Boone in writing that “[t]his legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.”79 The Court then cited Fishgold in 1991, writing: “[W]e would ultimately read the provision in [the veteran’s] favor under the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”80 This footnote is ultimately what the Court cited in Gardner for the proposition that is recognized as Gardner’s presumption today.81
Thus, while the presumption may at first glance seem like a recent development, courts have recognized Congress’s special “solicitude” for veterans for over a century. Hayburn’s Case provides evidence of this solicitude dating back to the earliest days of our republic.
C. The Last Decade of Gardner
Despite Gardner’s long historical pedigree, its decline can be seen in both the Federal Circuit and the Supreme Court. The Federal Circuit is the only Article III court that hears appeals from the Court of Appeals for Veterans Claims (an Article I court).82 Accordingly, the Federal Circuit is the appellate court most likely to hear disputes involving veterans’ benefits statutes.83 In the ten-year period from 2013–2023, the Federal Circuit cited Gardner in the veterans law context thirty times but utilized Gardner to rule in favor of a veteran only twice.84 A study of cases from 2011–2016, the methodology of which was replicated for this Note, found that the Federal Circuit used Gardner to rule in favor of a veteran exactly zero times.85 Rather, the canon was most commonly employed in dissent when courts found against veteran claimants, or in passing, but not as determinative.86
Competing doctrines of deference may have frustrated the congressional intent underpinning Gardner’s presumption. Deference under both Chevron and Auer v. Robbins87 required courts to rule in favor of the agency — in this case the VA — on questions of statutory and regulatory interpretation, respectively.88 In contrast, Gardner required courts to rule against agency interpretations that denied benefits to veterans. This tension was, until the recent overturning of Chevron,89 alive in the scholarship,90 but the Supreme Court had declined to address the issue91 while the Federal Circuit held that Gardner was subordinate to Chevron.92
Although the Federal Circuit does not often use Gardner to rule in favor of veterans, its deployment of the presumption in concurrences and dissents provides an important moral grounding to the court’s decisionmaking. For example, Judge Reyna in 2021 dissented from the majority, writing:
While we have held that the pro-veteran canon applies only to ambiguous statutes and cannot override plain text, that rule does not render the canon a tool of last resort, subordinate to all others. To the contrary, we have stated that the canon applies whenever the plain text does not expressly exclude the veteran’s interpretation.93
When Gardner is used, its application effectuates congressional purpose. In one case, the Federal Circuit ordered compensation for a veteran’s partial knee replacement, rejecting the VA’s interpretation that the regulation at issue covered only full replacements.94 Congress likely did not consider the difference between partial and full knee replacements when drafting the statute95 that delegated authority to the VA to issue the regulation96 in this case. But that statute has, in various amendments, articulated Congress’s purpose over the years to “make . . . improvements”97 and “increase the rates of compensation for disabled veterans.”98 Though the Federal Circuit has rarely applied Gardner in the last decade, those few applications have furthered Congress’s express goal to support veterans.
D. The Gardner Presumption in the Supreme Court
The Supreme Court’s most recent veterans cases also highlighted the decline of Gardner’s presumption and the necessity of codification.
The 2024 case Rudisill v. McDonough revealed some Justices’ desire to eliminate the presumption.99 Justice Jackson, on behalf of the Court, overruled the Federal Circuit and found in favor of the veteran’s interpretation of two education benefit statutes.100 James Rudisill served for eight years in the United States Army and attempted to use his Montgomery GI Bill101 and Post-9/11 GI Bill102 benefits.103 The VA read a provision in the Post-9/11 GI Bill to require Rudisill to forfeit months of eligibility to switch from using Montgomery benefits to Post-9/11 benefits.104 The Court determined the statute was unambiguous, and that the plain text and structure of the relevant statutes were properly read as not forcing a veteran to forfeit months of eligibility.105 Justice Jackson wrote that “[i]f the statute were ambiguous, the pro-veteran canon would favor Rudisill, but the statute is clear, so we resolve this case based on statutory text alone.”106
Justice Kavanaugh, though concurring, disagreed with Justice Jackson’s dicta reference to the pro-veteran canon.107 Joined by Justice Barrett, he decried the canon as being constructed “almost by accident” as purposivist analysis in the 1940s transformed into “reflexive repetition” by the Court of a canon neither rooted in the Constitution nor in line with the Spending Clause.108
Justice Thomas, in a dissent joined by Justice Alito, “share[d] Justice Kavanaugh’s concern that the . . . canon . . . ‘developed almost by accident’” and “question[ed] whether this purported canon should ever have a role in our interpretation.”109 He cited to an earlier concurrence of his in which he voiced similar concerns about the Court’s employment of the Indian “trust relationship” canon.110 He argued that the Indian trust relationship “seems to lack a historical or constitutional basis”111 and that some previous invocations of the canon were “mere dicta.”112 Justice Thomas’s comparison of Gardner to the waning Indian trust canon also indicated that centuries-old case law did not constitute a “[]certain foundation[]” from which to employ the canon.113
Potentially building on the doubts expressed in the noncontrolling opinions in Rudisill, the Court declined to employ Gardner in Bufkin v. Collins.114 The 7–2 majority interpreted a statute to permit the Court of Appeals for Veterans Claims to implement a lower standard of review when reviewing “the VA’s application of the benefit-of-the-doubt rule.”115 Justice Thomas, writing for the Court, found that “the text leaves no doubt” as to the meaning of the statute and did not cite to Gardner.116 Justice Jackson, joined by Justice Gorsuch, dissented.117 She disagreed with the majority’s interpretation and found that “[t]he veterans canon resolves whatever lingering doubt might remain about the proper interpretation” of the statute, citing Gardner for the proposition that “interpretive doubt is to be resolved in the veteran’s favor.”118
These recent cases show that Gardner — though applied only in the narrow veterans law context — may be a harbinger of challenges to other federal benefits systems and longstanding substantive canons like the Indian trust doctrine.
III. Congress Can and Should Codify Gardner
Given the Supreme Court’s disinclination to apply Gardner, in contravention of Congress’s intent, Congress can and should codify the pro-veteran presumption.
A. Congress’s Authority to Codify Gardner
Much ink has been spilled on the topic of whether Congress may constitutionally codify a substantive canon of interpretation via federal statute.119 The consensus among scholars is that codification would be permissible under the overarching principle that Congress drafts laws and sometimes tells federal courts how to interpret those laws.120 This section first argues that codifying a canon in favor of the veteran falls within Congress’s authority — as “necessary and proper” to execute the legislative power broadly and the powers to “raise and support Armies” and “provide and maintain a Navy.”121 Next, it explains why such a codification neither infringes on Article III nor impermissibly delegates Congress’s spending authority.
The Necessary and Proper Clause vests in Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”122 Scholars have read this provision to permit the codification of tools of statutory interpretation as “necessary and proper” to effectuate the legislative power.123 Interpretive statutes like the Dictionary Act124 have been utilized by the Court in this vein.125 The first Dictionary Act was passed in 1871 with the purpose “to avoid prolixity and tautology in drawing statutes and to prevent doubt and embarrassment in their construction.”126 Congress continues to update the Dictionary Act from time to time.127 While the constitutional basis for the Dictionary Act has never been directly challenged, the most natural constitutional hook for Congress’s authority to pass the statute is the Necessary and Proper Clause. The Court’s repeated utilization of the Act accords with the constitutional principle that “[c]reating law is inherently in the power of the legislature, not the judiciary.”128 However, despite the Court’s previous reliance on the Dictionary Act as determinative in cases involving statutory interpretation, the Court has in the last decade resisted invocations of the Act.129 The Court’s change in treatment of the Dictionary Act could be seen as tracking with a perceived surge of judicial supremacy.130 And a reassertion of Congress’s role in statutory interpretation via codification of Gardner would represent a clear response to that trend.131
The codification of Gardner is also necessary and proper to execute Congress’s authority to “raise and support Armies” and “provide and maintain a Navy.”132 While veterans’ benefits may be viewed as separate from the active duty military, the two are inextricably linked.133 And the Court has consistently deferred to Congress on matters of national security. It has stated that the military context is when “judicial deference . . . is at its apogee,”134 and that “[i]t is difficult to conceive of an area of governmental activity in which the courts have less competence.”135 If confronted with a statute codifying Gardner, courts should defer to the congressional determination that veterans’ benefits play an integral role in manning the active duty armed forces. In the current all-volunteer military, recruiting desired numbers of qualified and willing enlistees has proven difficult, and the joint services missed recruiting goals by 41,000 enlistees in fiscal year 2023 alone.136 A top reason that new recruits list for joining the military is to access benefits, with many servicemembers specifically referencing the GI Bill benefits administered not through the Department of Defense, but through the VA.137 Creating policy that affects the recruitment of future soldiers, sailors, marines, and airmen is thus necessary and proper to achieve Congress’s authority over the army and navy.138
The historical record confirms that Congress has long considered veterans’ care as necessary for military recruitment. The first-ever pension law of 1776 was passed “to encourage enlistment in the Revolutionary army.”139 George Washington supported veteran pensions to prevent soldiers from deserting when pay, supplies, and morale were short.140 This promise from Congress of post-service benefits was considered critical to preserving the army in the midst of a “dire emergency” that may have threatened the United States’s ability to achieve independence itself.141 Congress again legislated veterans’ benefits to address manning needs following the deeply unpopular Vietnam War. With the end of the draft, “results were immediate: between February and March 1971, the number of volunteers dropped by 65 percent.”142 The Post-Vietnam Era Veterans’ Educational Assistance Program, formed through an Act passed in 1976,143 was “designed as a recruitment incentive for the Armed Forces during peacetime.”144 History shows America’s promises to its veterans are not only altruistic expressions of thanks for the sacrifices that its service members make for the nation, but also critical components of military manning and recruitment strategy.
Article III of the Constitution, granting the judiciary the power to “say what the law is,”145 is the most relevant limiting factor applicable to this prospective codification. For example, statutes that purport to prescribe “Rules of Decision” to the judiciary would be infringements on the judicial power.146 The Court has stated that a law as simple as “in ‘Smith v. Jones,’ ‘Smith wins,’” would impermissibly “direct the court how preexisting law applies to particular circumstances.”147
However, other statutory schemes that could be read as “infringements” on the judicial power instead have been sanctioned by the Court.148 It is not clear whether the Court presently has the appetite to strengthen or clarify this line, given its recent repeated abstention from issuing opinions on the Article III constitutionality of legislation.149 The Court may be similarly reluctant to issue a separation of powers ruling in response to Congress’s codifying a narrow substantive canon like Gardner. Article III rules of decision jurisprudence thus does not pose a major obstacle to codification.
Neither does the Spending Clause. Justice Kavanaugh speculated in his Rudisill concurrence that Gardner’s presumption may run afoul of the constitutional separation of powers for reasons that would also apply to codification.150 He argued that any delegation of spending power to courts may violate the Spending Clause, which vests the authority to “provide for the common Defence and general Welfare of the United States” in the legislature.151 He argued that the canon putting “a thumb on the scale in favor of” veterans is similar to Congress making a spending decision.152 Who receives government benefits is a “zero-sum game,” he argued, because any spending decisions necessitate “painful tradeoffs” vested solely in the legislature, not courts.153
Justice Kavanaugh’s argument ignores both the text of veterans’ benefits statutes that clarify congressional intent and the budgetary impact of Gardner’s presumption. First, Gardner represents the premise that courts should read veterans law liberally because Congress passed these statutes with the intent to help veterans.154 Courts are not overstepping their “proper constitutional role in the federal spending process” when they effectuate Congress’s intent for money to be spent155 — especially if Congress makes that intent even clearer by codifying Gardner. Second, the idea of Gardner forcing courts to engage in a “tradeoff”156 in federal benefits misunderstands the way that Congress funds veterans’ benefits. By the time Congress passes the annual appropriations act, which funds the VA, it has already made the “hard choices with painful tradeoffs.”157 When courts order the VA to expend money in the form of benefits, that money is not withdrawn from the accounts of other federal beneficiaries. Rather, it comes from the funds that Congress has already appropriated for specific programs.158 If presented with a budget shortfall, the VA typically asks Congress for additional funds, which Congress may or may not provide.159 A court’s decision to apply Gardner, and compel the VA to spend money it already has, does not resemble a typical congressional spending decision.
Codifying Gardner would address Justice Kavanaugh’s misplaced Spending Clause concerns and ratify both Congress’s historically beneficent intent underlying veterans’ benefits statutes, as well as its determination that the benefits to veterans outweigh the costs to the treasury.
Given the constitutional hooks of the Necessary and Proper Clause and Congress’s military powers, the Court’s permissive attitude toward Article III rules of decision cases in recent years, and the lack of Spending Clause delegation concerns, it is likely that codification of a substantive canon of interpretation like Gardner would be constitutionally permissible.
B. Congress Should Codify Gardner
Having established that Congress can codify Gardner, this Note argues that Congress should codify Gardner. While theoretical “what-ifs” are ripe fodder for law reviews, the best way to resolve the overarching question about the separation of powers is for Congress to act. Gardner presents an ideal test case for codification as the most politically feasible substantive canon.
1. Congress as an Institution. — Codifying Gardner is a good opportunity for Congress to accept the judiciary’s invitation to play a bigger role in statutory interpretation. In Loper Bright Enterprises v. Raimondo,160 the Supreme Court overturned the Chevron doctrine, ending an era of deference to agency interpretations of ambiguous statutes.161 In Loper Bright, the Court ostensibly wrested power from the executive branch and returned it to the legislative branch, while deeming itself the proper institution to have the final say on statutory meaning.162 Gardner presents the ideal opportunity for Congress to guide judicial interpretation, as instructed by the Court in Loper Bright,163 and provide a check against what some have perceived to be undue judicial supremacy.164 Other canons that could be considered for codification — like the rule of lenity,165 establishing a presumption in favor of criminal defendants — would require far more political capital given that criminal defendants do not enjoy the same stable, bipartisan support that veterans do.166 Put differently, Gardner’s pro-veteran political messaging would require a comparatively small outlay of political capital to remind the Court of Congress’s status as a coequal branch.
In addition to making a statement about its relationship with the Court, Congress through codification could demonstrate bipartisan support for veterans, which would be politically beneficial to the body as a whole. Codifying Gardner would allow Congress to present to the American public evidence of both bipartisan cooperation and support for veterans, the latter of which remains high among the general public.167 A recent example of this winning formula can be seen in the passage and subsequent success of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022.168 The PACT Act passed with an 86–11 majority in the Senate and 342–88 majority in the House.169 Polling showed overwhelming public support for the Act,170 which has gone on to help over one million veterans receive presumptive eligibility for VA services for exposure to toxic chemicals in the course of duty.171
Congress consists of a notably higher percentage of veterans compared to the Federal Circuit and Supreme Court combined.172 Codifying Gardner would allow Congress to send powerful messages to both the Court and the public, to the benefit of Congress as an institution.
2. Congress as Partisan Interests. — Both parties should support codifying Gardner. Democrats should care about codification because veterans law is poverty law.173 A 2024 point-in-time count found 32,882 veterans experiencing homelessness, accounting for about 5% of the total homeless population.174 Veterans law has been at the forefront of federal assistance programs since the Founding175 and should be recognized as a vehicle for legal innovation that can be extended to other programs that Democrats wish to expand.176
Veterans are also a critical Republican constituency. Sixty-five percent of veterans supported President Donald Trump in the 2024 election”177 and “traditional values of the Republican party . . . value[] strong military defense systems including the care of Veterans.”178 The Republican Party’s platform includes: “Take Care of Our Veterans.”179 Codifying Gardner would allow the party to fulfill that promise during the current period of unified Republican government.
Codifying Gardner may also support specific veterans-related policy goals of the Trump administration. Seen as a policy wish list for the second Trump administration, Project 2025 emphasizes the importance of allowing veterans to access privatized care outside of the VA.180 In future court battles where veterans may seek care outside of the federal civil service apparatus, a presumption in favor of the veteran may help overcome VA attempts to “avoid[] or water[] down” the rights of veterans to access private care.181 This outcome would fulfill the conservative goal of “drain[ing] the swamp” of federal civil service employees and decreasing the overall size of the federal government.182 Allowing access to the free market, rather than cumbersome bureaucratic processes and frustrating red tape, would especially benefit veterans living in areas without easy access to VA facilities.183 Gardner may prove to be an indispensable tool in the fight to shrink the VA and give veterans more freedom in their healthcare choices.
Conclusion
Veterans law remains the “Wild West” of administrative law.184 This Note urges Congress to venture further into this uncharted territory. Codifying Gardner would bolster Congress’s role as an institution. And most importantly, codification would benefit the veterans who have sacrificed on behalf of our great country.