WH/DOJ laywers: Congress intended to prohibit the payment of death benefits?

WH/DOJ laywers: Congress intended to prohibit the payment of death benefits?

Hagel paying respects to returning fallen military heroesDid the president at least tacitly approve the denial of death benefits to fallen soldiers’ families as part of an attempt to put political pressure on Republicans during the government shutdown? The evidence is mounting that he did.

At the very least, some White House and Department of Justice attorneys are responsible for making the “legal determination” that the Pay Our Military Act (POMA) didn’t cover such benefits.

To interpret POMA in such a restrictive way you have to believe that Congress intended to prohibit the payment of death benefits when it passed POMA. So either the president knew of this ridiculous interpretation and agreed with it, or he wasn’t aware what was going on in his own White House.

The Pentagon warned Congress in late September that a government shutdown would jeopardize military payments. White House spokesperson Jay Carney has referred to this warning when scolding Republicans for not attending to this matter adequately. But after the warning, Congress passed the Pay Our Military Act that specifically states:

(a) In General – There are hereby appropriated for fiscal year 2014, out of any money in the Treasury not otherwise appropriated, for any period during which interim or full-year appropriations for fiscal year 2014 are not in effect–

(1) such sums as are necessary to provide pay and allowances to members of the Armed Forces (as defined in section 101(a)(4) of title 10, United States Code), including reserve components thereof, who perform active service during such period…

So, simply put, here’s the sequence of events:

  • Pentagon warns Congress of military pay issues during a shutdown
  • Congress passes POMA
  • President signs POMA
  • White House lawyers, along with DOJ and DOD lawyers, make a “legal determination” that POMA doesn’t cover death benefits under “allowances”
  • the DOD denies those benefits to fallen soldiers’ families

Either the president wasn’t paying attention during this sequence or he was. If he didn’t think POMA included death benefits, why did he, the commander-in-chief, wait until there was a public ruckus over this issue before addressing it? If he did think POMA included death benefits, then he has rogue lawyers working for him who did the faulty POMA “legal determination.”

And that leads to my second reason for thinking he was involved in some way. A legal determination that POMA doesn’t include death benefits has to rest on the premise, as I said, that Congress intended to prohibit these payments. The president has done nothing to address the issue that his lawyers helped craft a legal determination that defies common sense and reality. At the very least, one would expect to hear him say he’s reprimanded the lawyers in question for their hurtful interpretation of a law he signed (and, one assumes, thought, as Congress did, covered death benefits).

You don’t have to be a lawyer to understand that the DOD would have risked little in interpreting POMA the way Congress intended: that is, to include death benefits in “allowances.” What judge would view it otherwise? And what citizen or NGO or politician, for that matter, would even bring such an issue before a court if payments were made incorrectly? To repeat: an expansive interpretation of POMA to include the death benefits was actually the safer political course to take–unless, of course, you don’t care if public anger and disgust are aimed at the “culprits” responsible for the government shutdown, your political adversaries. In that case, you would embrace a restrictive interpretation that, as I say above, suggests Congress intended to prohibit the payment of death payments to fallen soldiers’ families.

Before I go on, ask yourself: who, in their right mind, would ever think that Congress would intend to prohibit the payments of such benefits?

I said you don’t have to be a lawyer to interpret POMA correctly, but, fortunately, we now know, due to reporting by the Washington Times, that a lawyer has interpreted it just the way Congress intended it to be read. That lawyer is Edward C. Liu, legislative attorney for the nonpartisan Congressional Research Service.  In a two-and-a-half page analysis of whether POMA covers death benefits, Liu weighs the wording against past practice and comes to the common-sense conclusion that, yes, POMA does include those benefits. But he doesn’t dismiss possible contrary interpretations. He does, however, point out how those contrary views would be wrong. His final paragraph is as follows:

…it should not be ignored that since FY1960, the annual appropriations for all military personnel have explicitly included death gratuities in the relevant military personnel account. It might be argued that this historical practice for more than a half-century should inform the construction of POMA to imply that the specific omission of gratuities from that law is indicative of Congress’ intent to prohibit the availability of this appropriation for death gratuities, notwithstanding 10 U.S.C. § 1480(d) or any other provision of law. Such an interpretation may be plausible, but is arguably less likely since the law contains no notwithstanding clause, or any other similar language, and repeals or amendments by implication are generally disfavored. Courts will construe statutes to avoid such conflicts whenever reasonably possible,12 and the doctrine disfavoring repeal by implication “applies with even greater force when the claimed repeal rests solely on an Appropriations Act,” as it is presumed that appropriations laws do not normally change substantive law.

What Liu is saying is this: if it walks like a duck and quacks like a duck, it’s a duck. Or, maybe, to be more specific: If Congress creates something that walks like a duck and quacks like a duck, they mean it to be a duck.

To argue otherwise, especially when it means that argument will deny death benefits to grieving families of fallen soldiers, paints a portrait of lawyers whose heartlessness is beyond comprehension. And this from the party that reminds us constantly of its compassion and of Republicans’ disregard for such sentiments. These lawyers’ actions are sickening.

Shame on the media for not pressing the president on who in his White House was responsible for this inane interpretation of POMA. The death benefits issue might be resolved, but the political story behind it has not been. And it tells us something important about this administration and how it views the American public, particularly those in vulnerable positions: as nothing more than pawns, a means toward their ends.

Libby Sternberg is a novelist.

Libby Sternberg

Libby Sternberg

Libby Sternberg is an Edgar-nominated novelist whose works include humorous women’s fiction, young adult fiction, and historical fiction. Her political writings have appeared at Hot Air, the Weekly Standard, Insight, the Wall Street Journal, and Christian Science Monitor.


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