This Report summarizes an opinion issued on December 10, 2021 (Part I); and cases granted review on December 10 and 15, 2021 (Part II).

Cases Granted Review: Torres v. Texas Dep’t of Public Safety, 20-603

Torres v. Texas Dep’t of Public Safety, 20-603. The question presented is “whether Congress has the power to authorize suits against nonconsenting states pursuant to its War Powers.” The case specifically concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which establishes substantive protections for servicemembers, including the right to take military leave from civilian jobs, to be promptly reemployed upon return from service, and to be free from discrimination based on military service. 38 U.S.C. §§4311-13, 4316. For servicemembers who incur disabilities during their military service, USERRA requires employers to make reasonable efforts to accommodate those disabilities and to rehire the servicemembers in the position they would have held but for their military service or in a position of equivalent “seniority, status, and pay.” §4313(a)(3); see 20 C.F.R. §1002.225. An employee who has suffered discrimination in violation of USERRA may bring an action against his or her employer for damages and equitable relief. §4323. USERRA applies to private- and public-sector employers of all sizes, including federal, state, and local governments. §4303(4).

Petitioner Le Roy Torres enlisted in the U.S. Army Reserve in 1989. While deployed in Iraq almost two decades later, he suffered lung damage after being exposed to toxic fumes emanating from “burn pits.” When he returned to Texas, Torres notified the Texas Department of Public Safety (DPS) of his intent to be reemployed. He explained that his lung damage prevented him from performing all of his previous duties as a Texas state trooper. Although the DPS made some efforts to accommodate Torres’ lung damage, Torres eventually filed suit in state court alleging that DPS discriminated against him on the basis of his service in the U.S. Army by changing his employment status and “constructively discharg[ing]” him. DPS moved to dismiss on the ground of sovereign immunity. The trial court ruled in favor of Torres without reasoned opinion. DPS filed an interlocutory appeal, and the Texas Court of Appeals reversed. 583 S.W.3d 221. The court relied on Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), which held that Congress may not use its Article I powers to abrogate states’ immunity from suit in federal court, and Alden v. Maine, 527 U.S. 706 (1999), which held that “the powers delegated to Congress under Article I” do not include the power to subject nonconsenting states to private suits in state court any more than in federal court.

Torres acknowledges that Congress enacted USERRA through an Article I power, namely, its War Powers enumerated in article I, §8, cls. 11-16. But he insists that, “unlike the vast majority of Congress’s Article I powers, the War Powers are both ‘plenary and exclusive.’ In re Tarble, 80 U.S. (13 Wall.) 397, 408 (1871) (emphasis added).” Argues Torres: Just as the Court ruled in Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 373 (2006), that the states agreed in the “plan of the [constitutional] convention” to cede their sovereign immunity to lawsuits authorized under the Bankruptcy Powers, so too did the states cede their sovereign immunity to lawsuits authorized under the War Powers. In his view, “[e]very tool of constitutional interpretation points toward the conclusion that the states agreed to surrender their sovereign immunity in suits authorized under the War Powers in the plan of the Constitutional Convention.” Among other things, Torres argues that the “vast” war “powers are exclusively federal. Unlike the Commerce Clause and many other clauses of Article I, the federal government shares none of the War Powers with the states.” And he claims that “[p]eace treaties the United States entered into in the immediate aftermath of the Revolutionary War . . . show that Congress intended its War Powers to authorize suits against the states.”

Texas responds with a variety of arguments. Among them are that “[s]ince Seminole Tribe and Alden, this Court has repeatedly adhered to the rule that Article I does not authorize Congress to abrogate state sovereign immunity”; Torres misreads Katz, which Allen v. Cooper, 140 S. Ct. 994 (2020), held does not mandate “a clause-by-clause analysis of whether States permitted Congress to abrogate their immunity on a given topic”; “[e]ven if USERRA were not passed under the Necessary and Proper Clause, there is no historical evidence supporting a plan-of-the-convention waiver of immunity” under the Army and Navy Clauses that comprise the so-called War Powers―“the history of these Clauses does not even hint that in agreeing to ratify these Clauses, States understood that they were subjecting themselves to private suit”; and the “Court’s precedent forecloses Torres’s argument that USERRA validly abrogated DPS’s sovereign immunity because Congress’s ‘war powers’ are ‘plenary and exclusive.’”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]