The Hidden Ideological Stakes of SCOTUS Patent Case

MICHAEL C. DORF

Cornell law professor Michael C. Dorf describes the ostensibly complex legal issues presented in United States v. Arthrex, Inc., in which the U.S. Supreme Court heard argument earlier this week, and explains how those issues reflect an ideological divide as to other, more accessible matters. Professor Dorf argues that although many conservatives would like to dismantle the modern administrative state, our complex modern society all but requires these government agencies, so conservatives instead seek to make them politically accountable through a Senate-confirmed officer answerable to the president, furthering the so-called unitary-executive theory of Article II.

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Euzebio v. McDonough

Docket: 20-1072

Opinion Date: March 3, 2021

Judge: Wallach

Areas of Law: Military Law, Public Benefits

Euzebio served in the U.S. Navy, 1966-1969, including two tours of duty in Vietnam, where he was exposed to Agent Orange. In 2009, Euzebio began experiencing problems swallowing. In 2011, medical examinations and testing by private physicians indicated that he had benign thyroid nodules. The Veterans Court affirmed the Board of Veterans’ Appeals’ denial of Euzebio’s entitlement to service connection for a thyroid condition due to exposure to Agent Orange. The Board noted that the Agent Orange Act requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for certain conditions, he must consider reports of the National Academy of Sciences (NAS), 38 U.S.C. 1116; Euzebio’s thyroid disorder was not among the conditions listed by the Secretary for presumptive service-connection. The Federal Circuit vacated. The Board is required to consider relevant documents within its constructive possession; all relevant and reasonably connected VA-generated documents are part of the record, constructively known by the VA adjudicator. The Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014. While the VA has not published that Update in the Federal Register, it appears on its website. Update 2014 includes statements that, “thyroid conditions overall showed an indication of increased risk with herbicide exposure” and that “consistent observations of exposures to herbicide agents” indicated that they were “related to perturbations of thyroid function.”