In Torres v. Texas Department of Public Safety the U.S. Supreme Court held 5-4 that Congress’s war powers allow it to subject non-consenting states to money damages lawsuits under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  

While deployed in Iraq, Le Roy Torres was exposed to toxic burn pits which caused him to have health problems and no longer be able to work in his old job as a state trooper. He asked his former employer, Texas Department of Public Safety (Texas), to reemploying him in a different role, which it refused to do so.

Torres sued Texas claiming it violated USERRA’s mandate that state employers re-hire returning servicemembers, use “reasonable efforts” to accommodate a service-related disability, or find an “equivalent” position if a disability prevents the veteran from holding his or her prior position. Invoking sovereign immunity, Texas claimed it can’t be sued under USERRA.

In an opinion written by Justice Breyer the Court held that Texas waived its sovereign immunity.

Congress enacted USERRA as part of its U.S. Constitution Article I authority “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” Sovereign immunity prevents courts from hearing a suit brought by any person against a nonconsenting State. But there are many exceptions to sovereign immunity, including “structural waivers.” As relevant to this case, Justice Breyer stated that per Alden v. Maine (1999) states may be sued if they agreed their sovereignty would yield as part of the “plan of the Convention,” that is, if “the structure of the original Constitution itself” reflects a waiver of states’ sovereign immunity.

In PennEast Pipeline Co. v. New Jersey (2021) the Courtarticulated the test for structural waiver as whether the federal power at issue is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.’”

According to Justice Breyer, the Constitution’s text, history, and Supreme Court precedent demonstrate that “when the States entered the federal system, they renounced their right to interfere with national policy” in the area of war.

Regarding text, the Court noted that “across several Articles,” the Constitution “strongly suggests a complete delegation of authority to the Federal Government to provide for the common defense.” “The Constitution also divests the States of like power. States may not ‘engage in War, unless actually invaded,’ ‘enter into any Treaty,’ or ‘keep Troops, or Ships of War in time of Peace.’”

History, the Court reasoned, “teaches the same lesson.” “The Founders recognized, first and foremost, ‘that the confederation produced no security agai[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by the[ir] own authority,’ because Congress lacked the power to marshal and maintain a fighting force ‘fit for defence.’”

Finally, an “unbroken line of precedents” supports the conclusion “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.”

Justices Thomas, joined by Justices Alito, Gorsuch, and Barrett dissented. “Today, by adopting contrived interpretations of Alden and the recent decision in PennEast, the Court holds that at least two (and perhaps more) Article I ‘war powers’ do, in fact, include ‘the power to subject nonconsenting States to private suits for damages in state courts,’ . . .  and that Congress has exercised that power by enacting [USERRA]. Alden should have squarely foreclosed that holding.”

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