War Powers and State Sovereign Immunity in Torres v. Texas Dep’t of Public Safety

On Dec. 15, 2021, the Supreme Court agreed to review Torres v. Texas Department of Public Safety. The case is a rare instance in which the court will confront the scope of Congress’s constitutional war powers. The central question in Torres is whether Congress may authorize private citizens to sue nonconsenting state governments under its constitutional war powers. This is controversial because of state sovereign immunity, a long-standing doctrine that, subject to certain exceptions, generally prohibits private citizens from suing state governments. Specifically, Torres involves provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA) that authorize service members to sue their employers (including state government employers) for damages relating to employment discrimination. Notably, the Torres decision will not only determine if protections are available to hundreds of thousands of veterans against employment discrimination but also could have broader ramifications for the war powers doctrine and/or the state sovereign immunity doctrine.

Texas State Trooper Le Roy Torres’s path to the Supreme Court began with the Texas Department of Public Safety’s alleged employment discrimination against him. During his Army tour in Iraq, Torres suffered serious lung damage from exposure to “burn pits.” Following his service, Torres sought reemployment at the department. Because his lung damage (later diagnosed as constructive bronchitis) prevented him from being reemployed in his former position, he requested a different assignment within the department. However, the department denied his request, offering him only a temporary position that effectively forced him to resign.

In 2017, Torres sued the Department of Public Safety in Texas state court under the USERRA. Texas challenged USERRA’s authorization of private suits as unconstitutional because of state sovereign immunity. A Texas state intermediate appellate court agreed and dismissed the case under state sovereign immunity, holding that the suit was barred because Congress may not repeal state sovereign immunity pursuant to its Article I legislative powers. This holding was consistent with the outcome in seven other state courts.

In 2020, after the Texas Supreme Court denied review, Torres petitioned the U.S. Supreme Court. In March 2021, the court invited the U.S. solicitor general to file a brief expressing the United States’ view on whether to grant cert. In November, Solicitor General Elizabeth Prelogar filed a brief disagreeing with the Texas state court, arguing that USERRA’s provisions were constitutional and Texas could not claim state sovereign immunity. However, she recommended against granting cert, claiming that the “Court’s review would be premature.” Despite that recommendation, the court will now hear the case.

Background on USERRA

USERRA was intended to protect veterans from employment discrimination. In 1994, Congress passed the modern version of USERRA pursuant to its enumerated Article I, Section 8, legislative powers to “raise and support Armies” and “provide and maintain a Navy.” Thus, Torres concerns whether one of the recognized exceptions to state sovereign immunity applies to the war powers used to pass USERRA. USERRA is the culmination of decades of legislation aimed at preventing employment discrimination against veterans. USERRA declares that its purpose is “to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” As a House Reportt explained, Congress saw USERRA as part of a “national policy to encourage [U.S. military] service.” Following the Vietnam War, in 1974, Congress greatly expanded existing employment discrimination protections by, for the first time, authorizing service members to sue discriminating employers. The modern version of USERRA, passed in 1994 following the Gulf War, provides the right to take military leave from civilian employment while ensuring prompt reemployment on return, freedom from discrimination owing to military service, and rights to have employers make reasonable efforts to accommodate disabilities incurred during military service.

State Sovereign Immunity

A long-standing principle of constitutional law is that states and state agencies have immunity from private lawsuits. However, the Supreme Court has announced two exceptions to this general ban, each of which applies to certain constitutional provisions. First, the court upheld Congress’s ability to abrogate state sovereign immunity under certain congressional constitutional powers. Second, Congress can authorize suits if a state has explicitly consented to waive sovereign immunity. Notably, the court has held that certain constitutional provisions contain an implicit waiver that states consented to at the Founding.

The Supreme Court has limited the first exception (abrogation) to congressional action under Section 5 of the 14th Amendment, which authorizes Congress to enforce the Constitution’s core civil rights provisions. In Fitzpatrick v. Bitzer (1976), the court upheld Congress’s authorization of suits against states for employment discrimination based on race, color, religion, sex and national origin. By contrast, the court sharply limited Congress’s power to abrogate state sovereign immunity under Article I legislative powers in Seminole Tribe of Florida v. Florida (1996). That case concerned the Indian Gaming Regulatory Act’s provisions permitting private suits against states, passed pursuant to the Commerce Clause. In a 5-4 decision that was issued over the court’s liberal justices’ strident dissents, the court declared that Congress cannot abrogate state sovereign immunity pursuant to its Article I powers. With almost all of Congress’s legislative powers contained in Article I (commerce, taxing, spending, war powers, patent-granting power, etc.), this represented a dramatic limitation. In reaction to Seminole Tribe, Congress amended USERRA in 1998 to authorize employment discrimination suits in state court, rather than federal court to evade state sovereign immunity. Nonetheless, the court subsequently extended the ban on abrogation to cover state, as well as federal, court in  Alden v. Maine (1999), setting the stage for this case. Because of the court’s consistent rejection of Article I abrogation, the exception appears unlikely to aid the plaintiffs in Torres.

Despite the court’s check on Article I abrogation, the court has found that Congress’s Article I power to establish “uniform Laws on the subject of Bankruptcies throughout the United States” satisfied the second exception to state sovereign immunity: when a state consents. In a narrow 5-4 decision, Central Virginia Community College v. Katz (2006), the court ruled that states consented to private debtor suits against state agency creditors. Though the state of Virginia never explicitly consented to suit, the ruling expressed that the states implicitly consented “in the plan of the [Constitutional] Convention not to assert [sovereign] immunity” (emphasis added) regarding private bankruptcy suits.

The court asserted that the Bankruptcy Clause was unique among Article I powers. The majority opinion noted: 

The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification … demonstrate that it was intended … to authorize limited subordination of state sovereign immunity in the bankruptcy arena.

Fair bankruptcy proceedings require the court to have power over a debtor’s entire property and its distribution to all creditors. If state creditors alone were immune from suit, the bankruptcy process would be unfair. In other words, the court determined that the states ratifying the Constitution recognized that the bankruptcy power entailed the necessary ancillary ability to authorize private bankruptcy suits against states. Subsequently, in Allen v. Cooper (2020), the court affirmed that Katz was “limited to the Bankruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism” and did not apply to any other Article I powers.

The court’s recent opinion in PennEast Pipeline Co. v. New Jersey (2021) suggests that other Article I powers, including war powers, might be entitled to the same “plan of the Convention” analysis as bankruptcy in Katz. In PennEast, the court upheld Congress’s authorization of suits against states under Congress’s eminent domain power. The eminent domain power is not enumerated in Article I; rather, the court saw it as inherent in the Fifth Amendment Takings Clause’s bar on government “takings” of “private property … for public use, without just compensation.” The court reasoned that the state’s consent to suit by private citizens in congressionally authorized eminent domain proceedings was inherent in the “structure of the original Constitution itself that the states had agreed to.”

Although the PennEast court asserted that it was not addressing Article I powers, PennEast nonetheless raises the question of whether Congress can authorize suits against states under any non-bankruptcy Article I powers under a “plan of the Convention” consent theory. In her dissent, Justice Amy Coney Barrett noted that the Fifth Amendment does not provide an independent eminent domain power that could authorize the Natural Gas Act statute at issue—the Fifth Amendment merely limits government power. As Barrett explained, Congress authorized suits in the Natural Gas Act pursuant to its power “to make all Laws which shall be necessary and proper for carrying into Execution” its other powers. Thus, PennEast arguably concerns a non-bankruptcy Article I power, suggesting Katz’s reasoning may not be limited solely to bankruptcy.  

Legal Issues in Torres

The central issue that the court will confront in Torres is whether war powers should get the same exceptional treatment the court gave bankruptcy in Katz. Based on the briefing from Torres, Texas, and their amici, there are at least three reasons why war powers are unique. The court will consider whether any of these features of congressional war powers indicate state consent to suit at the Founding. 

Exclusive Federal Power

The Constitution not only grants war powers to Congress but also explicitly removes war powers from the states’ sovereign prerogatives. The Constitution bars states from “engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Torres claims that this federal grant and state removal echoes Alexander Hamilton’s claim in Federalist #32 that, by ratifying the Constitution, states consented to “alienat[e] … state sovereignty” over sovereign powers that the Constitution “grant[s] in one instance … to the Union, and in another prohibited the States from exercising [them].” According to this argument, by entering a union in which the federal government had exclusive control over the military, and the states were restricted from exercising military power, states implicitly waived all aspects of their sovereignty over military matters. However, as Texas argues in its brief, “[s]overeignty is not an all-or-nothing concept.” In other words, the waiver of sovereign powers to raise and support a military does not necessarily entail the waiver of all aspects of sovereignty, including immunity from suits. Did states know that because they surrendered their right to maintain a military, they also surrendered their right to state sovereign immunity for military-related matters?

The Expansiveness of Federal Military Power

Congressional war powers are recognized as expansive. The Constitution was originally understood to give Congress far-reaching, plenary authority over war. In the Federalist Papers, Alexander Hamilton asserted that congressional war powers can have “no limitation,” and Madison claimed that Congress has “INDEFINITE POWER of raising TROOPS … in PEACE [and] in war.” The Supreme Court similarly has a long tradition of reading Congress’s war powers very expansively, memorably declaring in 1934, “the war power of the federal government ... is [the] power to wage war successfully,” suggesting congressional war powers are virtually limitless. The court has also long granted congressional war powers legislation great deference regarding its constitutionality. Indeed, the court asserted that when Congress passes “raise and support Armies” legislation, “judicial deference … is at its apogee.”

Does the expansiveness of Congress’s war powers suggest that the states consented to waive their immunity when Congress exercises those powers? It could be argued that by entering a union in which Congress had near plenary power, states implicitly consented to noninterference with congressional war powers. However, the court has never found that sovereign immunity was waived simply because a congressional power is expansive. 

The Constitution and State Impediments to Federal Military Power

Another argument for states’ consent at the Founding is that the Constitution was understood as necessary to overcome the inconveniences associated with the Articles of Confederation’s state-by-state military requisition system. During and after the Revolutionary War, American leaders were frequently frustrated by states hindering efforts to “raise and support” the military by refusing to provide either needed funds or manpower. The Supreme Court has repeatedly relied on this original understanding to hold that the Constitution bars state interference. The court long ago stressed that “[n]o interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted.” The court has rejected state restrictions on national conscription or the use of congressionally deployed National Guard troops and held that federal wartime price controls bound states, as well as private businesses, because otherwise states could impede the federal war effort. The court is particularly hostile to states hampering the war effort by burdening U.S. service members. For example, the Court upheld 2 acts of Congress–one which barred states from taxing service members based solely on the location of their military assignment and the other which prohibited Texas from barring service members who moved to Texas from voting.

Given this history, the court will have to grapple with the question of whether state assertions of sovereign immunity to prevent USERRA suits constitute a similar type of impermissible interference with federal military efforts. The amicus brief from the Reserve Organization of America—a Reservists and National Guardsmen advocacy organization—stresses USERRA’s role “boost[ing] the recruitment, retention, and morale of noncareer servicemembers.” USERRA’s legislative history indicates Congress’s belief that preventing employment discrimination against service members was essential to American warfighting ability. As a House committee report explained, Congress sought to ensure “the policy of maintaining a strong national defense is not inadvertently frustrated by States refusing to grant employees the rights afforded to them by USERRA.” However, USERRA’s anti-discrimination provision arguably relates only indirectly to efforts to “raise and support Armies” or “provide and maintain a Navy.” Indeed, Congress never once explicitly references specific constitutional War Powers Clauses. More generally, there remains a larger question as to whether the assertion of a traditional state right to prevent private civilians suing a state is comparable to states deliberately interfering with a national war effort. 

PennEast

PennEast, issued after all the briefs besides the solicitor general’s were already filed, will likely feature prominently in the court’s opinion and offers support to both sides. On the one hand, PennEast seems to favor Torres, as it suggests the “plan of the Convention” theory extends beyond bankruptcy alone. The eminent domain power is far less extensive than war powers and not exclusive, so if states consented to waive sovereign immunity under the eminent domain power, they arguably did so for the war powers. Moreover, because (as discussed above), PennEast appears to permit authorizations of suits under Congress’s Article I Necessary and Proper Clause, suggesting bankruptcy is not necessarily unique. On the other hand, both bankruptcy and eminent domain have at least one feature distinguishable from war powers: They both require court proceedings. In Katz, the court noted that it would be absurd if states, alone among actors in the bankruptcy litigation process, were immune from suit. Similarly, eminent domain involves condemnation proceedings and, therefore, could be directly impeded by state sovereign immunity. By contrast, litigation is not a necessary complement to Congress’s war powers. It is less obvious that states accepted that they were waiving their sovereign immunity through the War Powers Clauses, even if they did recognize the expansiveness and exclusivity of the war powers.

Looking Ahead

The Supreme Court will hear oral arguments in Torres by April and will issue a decision by June or July. If the court reaches the merits of the case, it might rule for Torres for several reasons. The court granted cert even without a split among lower courts—the situation most frequently yielding cert grants and despite the government (on the Supreme Court’s request) filing an amicus brief recommending against cert. Moreover, as a distinguished veteran injured in combat alleging employment discrimination, Torres is sympathetic. Finally, conservative justices—traditionally supportive of state sovereign immunity—are also traditionally the most supportive of expansive war powers, suggesting Torres may appeal to justices across the ideological spectrum.

The case could have a substantial impact on Torres himself and hundreds of thousands of active and reserve service members across the country currently working for state government agencies.

But it may have important legal implications beyond the specific facts involved in at least three areas of law. First, the case could have implications for the court’s state sovereign immunity jurisprudence generally. If the court rules for Torres, and recognizes a second Article I exception, it will likely encourage future litigation to determine if other Article I powers permit Congress to authorize suits against states. Second, a ruling for Torres might encourage Congress to try to evade state sovereign immunity in other statutes by trying to tie them to war powers. For example, Congress might try to authorize suits against states in a commercial regulation statute under the theory that a provision authorizing the suit was somehow necessary to “raise and support Armies,” not just to regulate commerce. Third, and finally, the court may give its first major statement on the scope of congressional war powers in 16 years. This decision could have important implications for other war powers/federalism-related issues raised this past year, such as states’ use of their National Guard troops for federal purposes and recent states’ efforts to resist President Biden’s vaccine mandate for their National Guard units.