A Sensible Limit on State Sovereign Immunity

 by Michael C. Dorf

In a few hours, SCOTUS will end its Term, Justice Breyer will officially step down, and Justice Jackson will shortly be sworn in. The two remaining cases on the docket will be handed down. Those cases provide the Justices with an opportunity to further tear the fabric of American law, perhaps by eliminating Chevron deference to administrative agencies, perhaps by reviving the non-delegation doctrine, or perhaps by so inflating the major questions doctrine as to effectively kneecap the administrative state without formally acknowledging as much. Should something along those lines emerge from One First Street, I may write a second blog post today.

Meanwhile, I want to take a few moments to celebrate a rare victory for sanity and decency yesterday in Torres v. Texas Dep't of Public Safety. By 5-4, the Court (Breyer, joined by Roberts, Sotomayor, Kagan, and Kavanaugh) upheld the application of the Uniformed Services Employment and Reemployment Rights Act (USERRA) to a state agency. The Court did not cite the amicus brief on behalf of Professors Philip Bobbitt, Jeff Powell, and me, but its reasoning proceeded along lines similar to those we urged. That's good because claims under USERRA are obviously just. I'll say a few more words about the case as well as state sovereign immunity more broadly.

The Constitution contains no express provision granting state governments sovereign immunity. The Eleventh Amendment, by its terms, is a jurisdictional provision, but an 1890 case--Hans v. Louisiana--read the case as giving effect to an unwritten principle of sovereign immunity that goes very far beyond the Eleventh Amendment's text. SCOTUS cases during the Rehnquist and Roberts Court then expanded state sovereign immunity even further. The body of sovereign immunity doctrine and its exceptions is extraordinarily complicated, but for present purposes we can focus on one aspect of it: those circumstances in which Congress may authorize private parties to sue states for retrospective damages, notwithstanding the sovereign immunity the states enjoy against such actions absent federal legislation.

Two lines of cases are relevant. In one, the Court has said that Congress, when acting to enforce the Fourteenth Amendment, may "abrogate" state sovereign immunity. However, those cases, and especially the Seminole Tribe ruling, also say that when Congress acts pursuant to its Article I power to regulate interstate commerce, it may not validly abrogate state sovereign immunity.

While Congress may not abrogate state sovereign immunity under Article I, there are some powers of Congress that are not subject to state sovereign immunity defenses because, the Court has said, in consenting to the Constitution, the states necessarily consented to federal supremacy with respect to those powers, including abrogation of state sovereign immunity. Which powers? Two pre-Torres cases identified federal power to make bankruptcy laws and the federal eminent domain power.

Is there really a difference between abrogation and original consent to federal laws that take priority over any attempted assertion of state sovereign immunity? Are bankruptcy and eminent domain really different from other congressional powers? I don't know. This whole area of law is made up and crazy, with rules that aim at preserving states' "dignity" and a key exception that is based on what the Court frankly acknowledges is a legal fiction. But no one in Torres was proposing to abandon state sovereign immunity or substantially alter existing doctrine.

Given that doctrine, the decision in Torres was a no-brainer, as Justice Kagan explained in a short concurrence. Congressional power to raise armies and navies for the national defense is a quintessential responsibility of national government. If the states consented to anything when they ratified the Constitution (or, as in the case of Texas, joined the Union), it was to federal supremacy regarding national defense. So unless the Court is prepared to overrule Katz (the bankruptcy case) and PennEast (the eminent domain case), Torres had to win. And he did.

How do we explain the dissent? Justice Thomas writes for himself and Justices Alito, Gorsuch, and Barrett. They do not say they would overrule Katz or PennEast but distinguish those cases on the ground that they involved suits in federal court, not state court. That, my friends, is some serious ass-backwards bullshit, given that until the Rehnquist/Roberts Court sovereign immunity decisions, nobody even thought that there was any constitutionally recognized state sovereign immunity in state court, because the Eleventh Amendment refers specifically to "[t]he judicial power of the United States," a term of art for federal courts. It's one thing to say, as the Court mistakenly said in Alden v. Maine, that state sovereign immunity applies in state court as well as federal courts; it takes major chutzpah to say, as the Torres dissenters say, that state sovereign immunity is super-strong--so strong as to be immune to states' consent to its congressional override by ratifying the Constitution--in state but not federal court.

The Torres dissenters offer other distinctions as well--especially a tendentious reading of history (natch). But the bottom line question with which one is left is this: Why? Why do the dissenters want to uphold state sovereign immunity in a case like this?

USERRA is a federal statute that says that when members of the armed forces of the United States--typically reservists called to active duty--are risking their lives to defend the rest of us, they shouldn't lose their jobs as a consequence. Is the "dignity" of the states that underwrites so much of the state sovereign immunity doctrine really so important that it prevails over dignified treatment of members of the armed forces? In what sense is that a "conservative" viewpoint?

Perhaps we can understand the financial considerations that led the state of Texas to assert a sovereign immunity defense, even though it meant incredibly shabby treatment of Mr. Torres, who, as a consequence of exposure to toxic burn pits while on active duty in Iraq, was left with restrictive bronchitis, which precluded him from resuming his old duties as a state trooper. Torres sought reassignment to a reasonably comparable position in which his service-related injuries would not interfere with his ability to do the job, but in violation of USERRA, the state refused. Had Torres been employed by a private security firm, USERRA would have given him a right to sue for compensation. But Texas asserted state sovereign immunity because it could.

As I said, however, we can sort of understand the financial pressure that led the state itself to assert state sovereign immunity. The Torres dissenters lack any such excuse. Luckily for justice in this one case, they were just barely outnumbered.