In Copeland v. Shinseki, docket 11-2408 (Vet. App. Nov. 14, 2012), the CAVC held that Congress’s assignment of an effective date for 38 U.S.C. § 5121A (the statute that allows a deceased veteran’s surviving spouse to be substituted for the veteran in a pending claim or appeal) did not violate the equal protection clause of the Fifth Amendment of the U.S. Constitution. The Court held that the veteran’s surviving spouse did not demonstrate that the assignment of the effective date was “patently arbitrary and irrational,” which would be required to find the statute constitutionally defective under rational basis review. The Court acknowledged that the effective date resulted in disparate treatment of survivors of those who died before and after the effective date, but determined that “the differing treatment is caused by an effective date that has a rational relationship to a legitimate governmental purpose for enacting legislation,” and thus did not violate the Constitution.
In a dissent, Judge Hagel asserted that the Court lacks the power to declare any statute unconstitutional.