Of Veterans, Constitutional Text, and Sovereign Immunity Run Amuck

 By Eric Segall

Disclaimer: There are serious threats facing our country and last week's events obviously should be on everyone's mind. But life does go on and this post was written before the attack on our government. There will be posts this week on that subject, but the topic of this one is extremely important, so I hope people will understand why we are posting it today. The pending cert petition discussed below needs to be granted by the Court.


The United States Constitution expressly grants Congress the authority in Article I, Section 8 to "raise and support" the armed services. Pursuant to this enumerated power, Congress enacted the Uniformed Services Employment and  Reemployment Act ("USERRA") which, among other things, prohibits employers, including the states, from discriminating against veterans because of their military service. 

Although this statute is easily within Congress' authority under its power to raise and support the military, and although Article VI unambiguously makes federal law supreme, "anything in the Constitution or laws of any State to the contrary notwithstanding," a Texas appellate court ruled that the law was unconstitutional because of state sovereign immunity, and the Texas Supreme Court refused to hear the case. This decision is not only grossly unfair to veterans across the land, but is completely inconsistent with the Constitution's text and history. The blame, however, lies not with the Texas courts but with the United States Supreme Court.  

The facts of this case are heartbreaking. Le Roy Torres enlisted in the U.S. Army Reserve in 1989. For the next eighteen years, he served as an Army reservist while working as a state trooper for the State of Texas. In November 2007, he was deployed to Iraq. While there, like thousands of other American soldiers, he suffered serious lung damage after being exposed to toxic fumes emanating from “burn pits.” 

After he was honorably discharged, he returned to Texas and informed his employer that, due to his injuries in Iraq, he could no longer perform his duties as a state trooper, and he asked to be reassigned. Texas refused, and eventually Torres was fired. When he sought to assert his rights under the USERRA, the Texas state courts dismissed his claims arguing, based on the Supreme Court decision in Alden v. Maine, that Congress lacked power under Article I to hold states liable for damages in their own courts. His petition for certiorari is now pending (disclaimer: Mike has joined an amicus brief supporting the petition).

To fully understand this case, we have to grasp the broad outlines of the Court's state sovereign immunity jurisprudence. The Eleventh Amendment provides the following:

"The Judicial Power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any Foreign State."

Readers of this blog know that I constantly assert that text does not matter to the Justices. What they have done to this Amendment is a classic example. Although the text refers to suits against a state by citizens of "another" state, the Court has held that it applies to suits against a state by citizens of the same state. Additionally, even though the Amendment expressly treats suits in law and equity in exactly the same way, the Court has said it only bars claims for damages, not prospective injunctive relief. These glaring inconsistencies have been embraced by all the conservative justices, including the self-avowed "textualists" Thomas and Scalia. 

The Court has also held, incredibly, that although Congress cannot take away state sovereign immunity under the commerce clause, it can abrogate said immunity under its bankruptcy power (which is also in Article I). More on that nonsense later.

In any event, the Eleventh Amendment by its own terms does not apply in state court, where Mr. Torres filed suit, and there is not a word in the Constitution about state sovereign immunity in state courts. There is also no question Congress may provide for the litigation of federal claims in state courts. The Court has held unambiguously held that state courts of general jurisdiction must hear federal claims.

All of which leads us to the disaster that is Alden v. Maine. In that opinion, which involved employees of the state of Maine suing that that state in state court under the Fair Labor Standards Act, five conservative Justices held that Congress lacked authority under Article I to hold states liable for money damages in state courts even though they conceded the Eleventh Amendment does not apply in state courts and even though there is no text providing for such immunity. The Justices failed to point to any specific history instead relying on broad federalism concerns and the "anomaly" that would be created if Congress could authorize suits for money damages against the states in state courts but not in federal courts. Of course, as Justice Souter pointed out in a scholarly dissent, that alleged "anomaly" was one of the Court's own creation because of its complete misreading of the Eleventh Amendment and Congress' powers under the commerce clause.

Mr. Torres' lawsuit has huge implications for Congress' powers to raise and support our military. If the Court decides to hear the case, it is very unlikely it would rule against Mr. Torres, who faithfully served his country in Iraq. But what to do about Alden? The Court, as Mike's amicus brief argues, could rely on its decision holding that Congress can abrogate state sovereign immunity under its bankruptcy power, and extend that opinion to the Court's power to raise and support the military, on the basis that the states when ratifying both provisions surrendered their immunity to the national government. Such an opinion would still leave Congress' inability to abrogate state sovereign immunity under the commerce clause intact, something the Justices clearly do not want to change. Of course, when the states ratified the Constitution, they surrendered their immunity when Congress acted under any enumerated power despite what the Court has wrongly held.

Although such an opinion would strengthen Congress' military powers, correctly, and would protect our troops from being punished for their service, a just outcome, it would continue the mockery that is the Court's sovereign immunity jurisprudence. The reality is that, as Justices Brennan, Souter and Stevens argued repeatedly throughout their careers, that when it comes to federal laws, the states shouldn't have sovereign immunity because, quite simply, they are not the sovereign. 

The Eleventh Amendment was ratified after the Court held that Georgia could be held liable under state law in federal court under diversity jurisdiction. The text of the Eleventh Amendment reveals it was meant to overturn that decision. It makes sense that states would have sovereign immunity under state law where, you know, states are the sovereign. But when the states ratified the Supremacy Clause, they agreed to be bound by federal law, which is what the USERRA is. As Justice Souter said in his Alden dissent:

The State of Maine is not sovereign with respect to the national objective of the FLSA. It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided... and is not contested here... Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution...which requires state courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action.

If Mr. Torres is going to prevail, it will most likely be because the Court will make an unprincipled exception to its incoherent, anti-textual, anti-historical sovereign immunity rules. But the reality is that the the state of Texas is not the sovereign when it comes to the USERRA, or any other federal law, and any suggestion that it is simply furthers confirms that the Court's sovereign immunity jurisprudence has run amuck; a jurisprudence that may well result in our veterans having no recourse when state governments punish them for their most important service to our country.