by Maxwell Steinberg
Another term, another fascinating Supreme Court decision on plan of the convention waivers to state sovereign immunity. On June 29, 2022, one of the last opinion issuance days of the October 2021 term, the Supreme Court issued Torres v. Texas Department of Safety. In a 5-4 decision, with Chief Justice Roberts and Justice Brett Kavanaugh joining the three liberals, the Court ruled for the petitioner, holding that by ratifying the federal Constitution, the states surrendered (or waived) sovereign immunity defense to Congress’s Article I authority to raise and support the armed forces. Accordingly, the Court held that Congress could authorize private suits against non-consenting states as the Court held that Congress did in the Uniformed Services Employment and Reemployment Rights Act of 1994.
If you are further interested in the facts and procedural posture of this case, you can read the oral argument analysis I wrote a few months ago at this link. As I wrote in that piece:
“Petitioner Le Roy Torres, a Texas state trooper, enlisted in the U.S. Army Reserve in 1989. Approximately two decades later, he was deployed to Iraq. While stationed there, Torres was exposed to toxic fumes from “burn pits” and suffered lung damage. When Torres returned home to the United States, this lung damage prevented him from completing all of his duties as a state trooper. Accordingly, he requested that the Texas Department of Public Safety reemploy him in another role. The federal Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, mandates that state and private employers reemploy veterans who cannot perform their previous job because of a disability they incur during their military service in a role “that provides a similar status and pay.” When the department refused to reemploy Torres in a different position, Torres sued them in Texas state court under USERRA.”
Majority Opinion:
In his last majority opinion before his June 30 retirement, Justice Breyer cited Alexander Hamilton’s writing that states waived their sovereign immunity in the plan of the convention “where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”
Three recent decisions guided the majority’s decision in Torres. First, the majority referenced 2006’s Central Virginia Community College v. Katz, which reasoned that the constitutional structure established a plan of the convention waiver regarding the Bankruptcy Clause because the Constitutional design gives Congress the power to establish “uniform Laws on the subject of Bankruptcies.” Then, the Court looked to their decision in Allen v. Cooper two terms ago. There, the Court characterized Katz as a “good for one clause only” rule that didn’t apply to other parts of the Constitution. In the case at hand, the justices expressed their view that last term’s PennEast Pipeline Co. v. New Jersey, where the Court held that the states waived their sovereign immunity in suits related to the federal eminent domain power in the plan of the convention, defined the test for state sovereign immunity cases: to identify a plan of the convention waiver, courts should determine whether the national 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.”
The majority went through this “completeness” inquiry regarding text, history, and precedent.
Text:
The Court argued that the Constitution’s text gave the federal government the “complete” authority to provide for the common defense since the Constitution discusses the war powers in several different provisions. According to the Court:
“The Preamble makes the “common defence” one of the document’s central projects. Article I gives Congress authority to “provide for th[at] common Defence” in six numbered paragraphs: to “declare War”; “raise and support Armies”; “provide and maintain a Navy”; “make Rules” for the Armed Forces; “provide for calling forth the Militia”; and “provide for [their] organizing, arming, and disciplining.”…Article II makes the President the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.”….And [Art. IV, §4] in the Federal Government is charged with “protect[ing] each” State “against Invasion.”
The Court also emphasized that the Constitution strips states of war powers, citing statements in Article I that States may not “engage in War, unless actually invaded,” “enter into any Treaty,” or “keep Troops, or Ships of War in time of Peace.” While the Court notes, “States retain a role in ‘the Appointment of the Officers’” to and the “training [of] the Militia,” the Court reasons that Article I dictates that they must do so “according to the discipline prescribed by Congress.”
History:
The majority cited that the Constitutional Convention in 1787 was intended to provide Congress with authority to “marshal and maintain a fighting force ‘fit for defence.’” According to the majority, this historical understanding bears out in practice, not just theory. They discuss that early Congresses established military bonuses to reward service and required Virginia to give land to some Revolutionary War officers, acting at the expense of state sovereignty. The majority then asks and answers: “Could Virginia have refused to go along? We do not think so.”
Precedent:
The Court cited a slew of precedents that, in the majority’s words, stand for the proposition that “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.” For example, during the Civil War, the Court rejected a State’s attempt to retrieve a soldier being held in the custody of a recruiting officer of the United States through habeas corpus (Tarble’s Case). The Court also cited their previous approval of a federal statute that “tolled state statutes of limitations in state courts for suits against soldiers while they were in service of the Union” (Stewart v. Kahn). Rejecting state sovereignty objections to the military draft, the Court stated that it “manifestly intended to give . . . all” such power to the Federal Government and “leave none to the States” (Selective Draft Law Cases). The Court rejected a Tenth Amendment challenge to a federal law dictating that when certain veterans die without heirs, their property be distributed “to veterans’ facilities rather than escheating to the State” in United States v. Oregon. The majority goes on to cite two broad statements in their case law that the federal government’s powers are not limited to the “context of an actual war,” and that “[t]he power to wage war is the power to wage war successfully” (Perpich v. Department of Defense and Lichter v. United States).
Concurrence:
Justice Kagan penned a short concurrence, expressing her view that the Court’s sovereign immunity cases have “not followed a straight line.” Justice Kagan characterized the Court’s decision in PennEast, in which she dissented, as upsetting Allen’s statement that Katz’s rule was a “good for one clause only” and introducing a new “complete in itself” test. She continued to explain her view that since the “war powers lie at the heart of the Convention’s plan” and thus, as distinct from the federal eminent domain power, they are “complete in themselves.”
Dissent:
Justice Thomas wrote the dissenting opinion for himself and Justices Alito, Gorsuch, and Barrett. He begins by citing Alden v. Maine’s language that it would be “difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject non-consenting States to private suits in these fora.” Therefore, he read Alden to foreclose the result the Court reached.
Toward the beginning of his dissent, Justice Thomas criticized the majority’s interpretation of USERRA’s language that states, “In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.” He states that this language “would seem” to include state “laws” that give themselves immunity from private suits in their own courts and laws that waive this immunity.
Justice Thomas claimed that the majority distinguished Alden without any basis. He noted that Alden stated broadly that “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.” Katz and PennEast dealt with plan of the convention waivers in federal, not state, court, so he argues that those decisions do not undermine Alden’s categorical holding. Instead, Justice Thomas saw Alden as providing the exact answer the Court needed in Torres: states retain sovereign immunity in cases despite congressional War Powers.
Even assuming that Alden’s holding did not decide this case, he argued that Torres’s argument did not meet the threshold for the Court’s “plan of the Convention” waivers applicable to federal courts. He emphasized that previous precedent dictates that the Court “cannot infer a waiver of sovereign immunity unless there is ‘compelling evidence that the Founders thought such a surrender inherent in the constitutional compact.’” He detailed that Seminole Tribe v. Florida, involving a federal cause of action under the Indian Commerce Clause, held that the “breadth and exclusivity of a federal power does not authorize Congress to subject nonconsenting States to private damages actions.” At the same time, the Court has stated that the Indian Commerce Clause grants Congress “plenary and exclusive” power to regulate Indian tribes. Justice Thomas claimed that the Court’s “complete in itself” test is inconsistent with the Seminole Tribe.
Justice Thomas then took issue with the majority’s claim that the states were even divested of all authority to regulate this area. He explained, “States have significant residual police powers that overlap with Congress’ power over the military,” citing Gilbert v. Minnesota, in which the Court has upheld state legislation related to enlistment in the U.S. Army and Navy. There, the Court rejected the proposition “that a State has no interest or concern in the United States or its armies or power of protecting them from public enemies” and chose to forgo any “[c]old and technical reasoning” that “insist[s] on a separation of the sovereignties” in the army-raising context. In Dairies, Inc. v. Milk Control Comm’n of Pa, the Court stated that nothing in the Constitution prohibits states “from exercising their police powers in ways that arguably burden Congress ‘power to raise and support armies.’”
Accordingly, Justice Thomas concluded that despite the Army and Navy Clauses granting Congress “exclusive” power over raising and supporting the army and the navy, that grant of exclusive authority is not different from that granted to Congress concerning any other Article I power.
High School SCOTUS 