WAR POWERS UNDER ATTACK
By: Jesse Noltimier, Volume 106 Staff Member
On March 29, 2022, the Supreme Court will hear oral arguments in Torres v. Texas Department of Public Safety. The Court will decide whether a veteran can sue the state of Texas, his former employer, for discrimination. Beyond this employment discrimination claim, Torres raises important questions concerning Congress’ war powers and the doctrine of sovereign immunity. In particular, the Court will decide whether Congress may abrogate state’s sovereign immunity under its war powers.
The potential implications of the Court’s decision in Torres cannot be overstated. If the Court finds Texas immune from suit, millions of veterans will lose their right to sue under federal war powers legislation. But the Court need not reach this decision because the Constitution does not reserve sovereign immunity to the states when Congress decides to act under its war powers.
In 1989, Le Roy Torres enlisted in the U.S. Army Reserve. In 2007, he was called to active duty and thereafter deployed to Iraq. While deployed, Torres suffered lung damage after being exposed to toxic “burn pits”—a large, open-air pit smoldering twenty-four hours a day and emitting thick, black smoke. Torres was honorably discharged and returned to Texas. Once back, he notified the Texas Department of Public Safety of his intent to be reemployed and requested that he be placed in a different position because of his lung damage. The Department declined his accommodation request, offering him a position in his previous capacity instead. But Torres could not accept this position because of his disability, so he decided to resign.
Torres then sued the Department under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). He claimed that the Department violated the statute by failing to offer him a job after his return from active duty that would accommodate his disability. The Department moved to dismiss, arguing that Texas has sovereign immunity from suit under USERRA. Although the trial court denied the Department’s motion to dismiss for lack of jurisdiction, the Texas court of appeals reversed, holding that USERRA was unconstitutional because Congress lacked authority to abrogate state’s sovereign immunity under its war powers. The Texas Supreme Court denied review. The Supreme Court agreed to hear the case this term.
II. STATES LACK SOVEREIGN IMMUNITY AGAINST FEDERAL WAR POWERS SUITS
The Constitution vests war powers in the federal government. Yet, states often attempt to interfere with that authority by claiming sovereign immunity. Sovereign immunity is an aspect of state sovereignty that protects states from suit without their consent. The doctrine stems from the belief that states generally entered the federal system “with their sovereignty intact” and immunity from suit without consent was a “fundamental aspect” of that sovereignty. State sovereign immunity is implicated when a federal law provides individuals the right to sue non-consenting states for monetary damages. But the Supreme Court has cautioned against abrogation under Congress’ broad Article I powers, which include its war powers. Indeed, the Court has held that the Constitution generally does not allow the federal government to abrogate state sovereign immunity under its Article I powers, including under the Intellectual Property Clause, the Interstate Commerce Clause, or the Indian Commerce Clause.
At the same time, the Court has repeatedly stated that “a State may be sued if it has agreed to suit in the ‘plan of the Convention.’” The “plan” includes “waivers of sovereign immunity to which all States implicitly consented at the founding.” The Court has recognized such waivers in the context of eminent domain, bankruptcy proceedings, suits by other States, and suits by the federal government. However, the Court has never considered whether the states waived their sovereign immunity to suits authorized by the wars power in the “plan of the Convention.” And because Congress enacted USERRA under its war powers, Torres presents a new challenge to state’s sovereign immunity.
To determine whether Congress’ war powers abrogation is constitutional, the Court will look to the “history, practice, precedent, and the structure of the Constitution.” Because each factor suggests that the states lack immunity in the war powers context, the Supreme Court should reverse the Texas Court of Appeals decision and allow Torres’ discrimination case to proceed.
First, the Constitution’s text and structure demonstrate that the states lack sovereign immunity in federal war powers suits. A basic purpose of the Constitution was to “provide for the common Defence.” The Constitution’s text itself reflects this purpose, and confers significant war powers to Congress, which comprise nearly half of the enumerated powers in Article I, section 8. Yet the Constitution not only grants war powers to Congress, it also explicitly removes war powers from the states. The Constitution explicitly bars states from “engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay.”
Second, history shows that the states likely never possessed immunity from congressional war power actions. Under the Articles of Confederation, military matters were handled under a state-by-state military requisition system under the Articles of Confederation. But under this system, the country’s national defense was “replete with obstructions.” Yet, by ratifying the Constitution, the 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].” In other words, by entering a union in which the federal government maintained exclusive control over the military, the states waived their right to exercise military power and thus any sovereignty they formerly possessed over military matters.
One potential objection to this argument, which Texas advances in its brief, is that sovereignty is not an all-or-nothing concept. If states waived their sovereign powers to raise and support a military, this doesn’t necessarily mean they also waived other aspects of sovereignty, such as immunity from suits. But if states were immune from war powers suits, Congress would be unable to hold states that interfere with its ability to raise and support armies to wage war accountable, making the United States less than “completely sovereign.”
Third, the Supreme Court’s precedent also demonstrates that states lack immunity in war powers suits. Just last year, the Court decided PennEast Pipeline Co. v. New Jersey. In that decision, the Court noted that the “plan of the Convention” theory extended beyond bankruptcy alone to include eminent domain. This is telling. Congress’ eminent domain power is less extensive than war powers and not exclusive. Thus, “if states consented to waive sovereign immunity under the eminent domain power, they arguably did so for the war powers.”
The “history, practice, precedent, and the structure of the Constitution” all establish that the states waived their immunity from war powers suits when they ratified the Constitution. As a result, the Supreme Court should reverse the Texas Court of Appeals decision and give veterans like Torres their day in court.
 See Torres v. Texas Dep’t of Pub. Safety, No. 2017-CCV-61016-1, 2017 WL 8226710, at *1 (Tex. Cnty. Ct. Nov. 21, 2017), rev’d, 583 S.W.3d 221 (Tex. App. 2018), petition for cert. filed, No. 20-603, 2021 WL 769686 (mem.).
 Brief for Petitioner at 15, Torres v. Texas Dep’t of Pub. Safety, No. 20-603 (2022).
 James Risen, Veterans Sound Alarm Over Burn-Pit Exposure, N.Y. Times (Aug. 6, 2010), https://www.nytimes.com/2010/08/07/us/07burn.html [https://perma.cc/Q4QL-GMLX].
 Brief for Petitioner, supra note 2.
 Id. at 16.
 Id. at 17.
 PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2258 (2021) (quotation marks omitted).
 See generally Ex parte Young, 209 U.S. 123 (1908) (permitting suit for injunctive relief against nonconsenting state official).
 See U.S. Const. Art I, § 8, cls. 1, 10-16, 18.
 Allen v. Cooper, 140 S. Ct. 994, 999 (2020).
 Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 672 (1999).
 Seminole Tribe of Fla. V. Florida, 517 U.S. 44, 72-73 (1996).
 PennEast, 141 S. Ct. at 2258 (quoting Alden v. Maine, 527 U.S. 706, 728 (1999)); see Principality of Monaco v. Mississippi, 292 U.S. 313, 323 (1934).
 PennEast, 141 S. Ct. at 2258.
 Id. at 2263 (eminent domain).
 Cent. Va. Cmty. Coll. V. Katz, 546 U.S. 356, 379 (2006) (bankruptcy).
 South Dakota v. North Carolina, 192 U.S. 286, 318 (1904) (suits by other states).
 United States v. Texas, 143 U.S. 621, 646 (1892).
 Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 843 (7th Cir. 2005).
 See, e.g., Alden v. Maine, 527 U.S. 706, 741 (1999).
 U.S. Const. Art. I, § 8, cl. 1; see Wayte v. United States, 470 U.S. 598, 612 (1985) (“[T]he Framers listed ‘provid[ing] for the common defense’ [in the Preamble] as a motivating purpose for the Constitution . . . .”).
 See U.S. Const. Art I, § 8, cls. 1, 10-16, 18.
 U.S. Const. Art 1, § 10.
 The Federalist No. 22 (Alexander Hamilton).
 The Federalist No. 32 (Alexander Hamilton).
 Brief for Respondent at 13, Torres v. Texas, No. 20-603 (2022).
 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936).
 PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2258 (2021).
 Id. at 2259.
 Adam Chan, War Powers and State Sovereign Immunity in Torres v. Texas Dep’t of Public Safety, Lawfare (Feb. 8, 2022, 8:01 AM), https://www.lawfareblog.com/war-powers-and-state-sovereign-immunity-torres-v-texas-dept-public-safety [https://perma.cc/P8ZX-R3XE]
 See, e.g.,Alden v. Maine, 527 U.S. 706, 741 (1999).