SCOTUS: States have
no sovereign immunity
in USERRA suits (5-4)
Torres v. Texas Dept of Public Safety (US Supreme Ct
Sent to Custom
Alerts™ subscribers on 06/29/2022
The US Supreme Court has
decided (5-4) that a military servicemember can bring a suit
against a State in State court to enforce his rights under the
Uniformed Services Employment and Reemployment Rights Act
(USERRA), in spite of the State's claim of sovereign immunity.
While serving in Iraq, Torres was exposed to toxic burn pits,
a method of garbage disposal that sets open fire to all manner of
trash, human waste, and military equipment. Torres received an
honorable discharge. But he returned home with constrictive
bronchitis, a respiratory condition that narrowed his airways and
made breathing difficult. These ailments, Torres says, left him
unable to work his old job as a State trooper, so he asked the
State to accommodate his condition by reemploying him in a
different role. The State refused, asserting sovereign immunity.
The US Supreme Court held (5-4) that by ratifying the
Constitution, the States agreed their sovereignty would yield to
the national power to raise and support the Armed Forces, so
Congress may exercise this power to authorize private damages
suits against nonconsenting States, as in USERRA.
sovereign immunity generally bars private suits against
nonconsenting States, the States remain subject to suit in certain
circumstances. States may consent to suit; Congress may abrogate
States’ immunity under the Fourteenth Amendment; and States may be
sued if they agreed their sovereignty would yield to the exercise
of a particular federal power as part of the "plan of the
Convention," – that is, if "the structure of the original
Constitution itself" reflects a waiver of States’ immunity.
The majority pointed out that, generally, sovereign immunity
waivers cannot be found when Congress exercises its powers under
Article I of the constitution. However, there have been exceptions
in which the Court has found "structural waiver" – cases involving
bankruptcy and cases involving Congress' eminent domain power.
The case involving Congress' eminent domain power defined the
test for structural waiver as whether the federal power 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 concluded that Congress’ power to build and
maintain a national military is "complete in itself": Upon
entering the Union, the States agreed that their sovereignty would
"yield . . . so far as is necessary" to federal policy for the
Armed Forces. Therefore, there is no State immunity for suits
The four dissenting Justices pointed out that
in 1999 the Court held 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."
The dissent also said, "[T]he
Court brushes aside a 23-year-old, pathbreaking precedent, while
elevating a single phrase, made in passing in a one-year-old,
highly circumscribed precedent. It then uses that phrase to
fashion a test for plan-of-the-Convention waiver that mimics
earlier attempts by this Court to deny States the dignity owed to
them in our system of dual federalism."
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