This Report summarizes opinions issued on June 27, 29, and 30, 2022 (Part I).

Opinion: Torres v. Texas Dep’t of Public Safety, 20-603

Torres v. Texas Dep’t of Public Safety, 20-603. By a 5-4 vote, the Court held that Congress has the authority to authorize suits against nonconsenting states pursuant to its power to raise and support the armed forces. Congress enacted the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §4301 et seq. under its power “[t]o raise and support Armies” and “[t]o provide and maintain a Navy,” Art. I, §8, cls. 1, 12-13. USERRA “gives returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them.” Petitioner LeRoy Torres, a member of the Army Reserves, was exposed to toxic burn pits while on active duty in Iraq. As a result he suffered from constrictive bronchitis, which made breathing difficult and left him unable to work at his old job as a Texas state trooper. He filed suit in state court against respondent Texas Department of Public Safety (Texas) when Texas allegedly failed to accommodate his condition by reemploying him in a different role. Texas moved to dismiss based on sovereign immunity. The trial court denied the motion, but the intermediate appellate court reversed. The Texas Supreme Court denied discretionary review. In an opinion by Justice Breyer, the Court reversed and remanded.

The Court agreed that the states entered the Union with their sovereignty―including their sovereign immunity―“intact.” But, observed the Court, its precedents establish that states may be sued without their consent “if they agreed that 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.” (Citation omitted.) For example, the Court has found waiver as to suits between states, suits by the United States against a state, suits by private parties under the federal bankruptcy laws, and, in PennEast Pipeline Co. v. New Jersey, 594 U.S. ___ (2021), suits by private parties to enforce federal-approved condemnations. The Court here stated that “PennEast defined 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.’ Where that is so, the States implicitly agreed that their sovereignty ‘would yield to that of the Federal Government so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.’” (Citation omitted.)

The Court concluded that “Congress’ power to build and maintain the Armed Forces fits PennEast’s test.” As to constitutional text, the Court observed that “the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.” At the same time, the Constitution divested states of power in this area, saying the states may not “engage in War, unless actually invaded,” “enter into any Treaty,” or “keep Troops, or Ships of War in time of Peace.” Art. I, §10, cls. 1, 3. Turning to history, the Court noted that dependence on the states “had nearly cost the Nation victory in the Revolutionary War,” and that the Constitutional Convention recognized the need “to establish[] a strong national power to raise and maintain a military.” “The States ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy. Consistent with that structural understanding, Congress has, since the founding era, directed raising and maintaining the national military, including at the expense of state sovereignty.” The Court further found that its precedents support the proposition that “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.” “It follows,” said the Court, “that Congress’ power to build and maintain a national military is”­―in PennEast’s words―“‘complete in itself.’”

The Court rejected arguments by Texas and the dissent. The dissent questioned whether USERRA clearly subjected Texas to suit, but the Court found no doubt on that score. And it noted that “[u]nder Supremacy Clause principles, Texas courts may not enforce contrary state laws to block these suits.” The Court distinguished Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), and Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), as cases that did not “consider[] federal powers that give rise to the same structural inferences.” “None of those powers (e.g., Indian commerce, interstate commerce, or intellectual property) is expressly denied to the States, or operates for the benefit of the entire Nation, or proves comparably essential to the survival of the Union—itself a foundational purpose for drafting the Constitution.” And the Court disagreed with the dissent that Alden v. Maine, 527 U.S. 706 (1999), made states categorically immune to suit without their consent in state court, finding that Alden embraced the possibility that the states could surrender their immunity in the plan of the convention. Finally, the Court rejected Texas’ effort to distinguish PennEast, finding that it rested on the broad principle for which the Court relied upon it here. The Court noted in closing that Texas’ contrary view would permit States to thwart national military readiness. Yet “[t]ext, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense.”

Justice Kagan, who dissented in PennEast, wrote a concurring opinion to note that “our sovereign immunity decisions have not followed a straight line.” But she concluded that “PennEast’s analysis thus compels today’s result. In setting out the ‘complete in itself’ test, the Court there answered the question here: At the Convention, the States waived their sovereign immunity to any suit Congress authorized under the war powers.”

Justice Thomas filed a dissenting opinion that Justices Alito, Gorsuch, and Barrett joined. First, because USERRA authorizes suits against states only “in accordance with the laws of the State,” he would not infer that the law requires nonconsenting states to defend themselves from USERRA suits. Second, he concluded that “Alden directly controls this case” because it “held―without qualification―that the States had not consented in the plan of the Convention to any congressionally created private damages actions in state court.” Among other things, he quoted Alden’s statements that “no one, not even the Constitution’s most ardent opponents, suggested the document might strip the States of the[ir] immunity” from suit “in their own courts,” and “We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.” Justice Thomas noted that PennEast and Central Va. Community College v. Katz, 546 U.S. 356 (2006), “considered plan-of-the-Convention waivers applicable to federal, not state, court.”

Even putting Alden to the side, the dissent did not find here “’compelling evidence that the Founders thought such a surrender inherent in the constitutional compact.’” First, “Seminole Tribe long ago explained that the breadth and exclusivity of a federal power does not authorize Congress to subject nonconsenting States to private damages actions.” “Second, even if express textual divestment of state power were relevant, . . . States have significant residual police powers that overlap with Congress’ power over the military.” Third, there is no evidence “of analogous suits ‘at the time of the founding or for many years thereafter.’” Rather, the dissent found, “the founding-era history is largely silent on this question.” Turning to constitutional structure, the dissent asserted that all the traditional reasons for states’ sovereign immunity apply here. Meanwhile, states cannot “interfere with federal warmaking” regardless, even when it comes to USERRA, for the United States can sue to enforce USERRA’s requirements. Finally, the dissent contended that the Court misread PennEast’s supposed “complete in itself” test, and that the test as used by the Court “is inconsistent with our modern sovereign immunity doctrine and, in particular, Seminole Tribe.” In short, the phrase dates back to Gibbons v. Ogden, 9 Wheat. 1 (1824), which “is explicit that it considered every power vested in Congress to be ‘complete in itself.’” And so, “[d]espite the Court’s efforts, its ‘completeness’ analysis simply fails to distinguish the Army and Navy Clauses from other Article I powers delegated to Congress in the plan of the Convention.”