The Supreme Court seemed sympathetic during oral arguments on March 29 to a former Texas state trooper who claims his former employer violated a federal anti-discrimination law for veterans by refusing to accommodate him after he was injured in the Iraq War while serving as a U.S. Army reservist.
The lower court held the cause of action created by USERRA was unconstitutional because Congress lacks the power to authorize lawsuits against nonconsenting states under its war powers. Supreme Court justices expressed skepticism of the lower court’s reasoning.
Congress passed USERRA in 1994, which requires state and private employers to restore former employees returning from military service to the same position. A newly disabled employee must be given a position of “similar status and pay.”
The thinking behind USERRA was that leaving former service members without a legal remedy for employment discrimination could interfere with the federal government’s ability to provide a strong national defense. In other words, a soldier may be reluctant to serve knowing his job may not be waiting for him when he returns.
Petitioner Le Roy Torres sued his former employer in Texas state court in 2017, seeking more than $5 million.
Torres was honorably discharged a year after deployment and asked the department for a job in a different position because his injuries prevented him from performing all of his previous duties as a state trooper. The department offered him a temporary position in his previous capacity, and said he would be fired if he didn’t report for duty.
During oral arguments before the Supreme Court, the attorneys and justices discussed at length the founding of the United States, the war powers of Congress, the authority of states, and what came out of the Constitutional Convention of 1787.
Justice Stephen Breyer said this “has the potential of being a pretty important case for the structure of the United States of America.”
Torres’s attorney, Andrew Tutt, quoted Alexander Hamilton verbatim from Federalist 23:
Hamilton wrote: “There can be no limitation of that authority, which is to provide for the defense and protection of the community, in any matter essential to its efficacy; that is, in any matter essential to the formation, direction or support of the national forces.”
Tutt said: “The purpose of sovereign immunity is to protect liberty and the local autonomy of the states, their democratic accountability. But in the area of war, it is only by vesting the war powers exclusively in the federal government that liberty can be protected in the way the Constitution intends. The Constitution did not intend to protect an abstract sovereign immunity of the states when it would cost the liberty of individual citizens.”
When Torres came home, “he brought a piece of the war with him. And if he had been a member of the local sheriff’s department or a U.S. marshal or worked for any other employer, he would have been able to sue to vindicate his rights. But because he worked for Texas, he had no cause of action. ... We’re asking this court to make it right.”
U.S. Department of Justice lawyer Christopher Michel said the Constitution “was adopted in large part to stop states from undermining federal efforts to raise a military.”
“This court has never imposed a state-sovereignty-based limitation on the federal powers to raise and support armies or provide and maintain a navy. In this distinctive area, we are one nation with one sovereign, and USERRA’s cause of action can be fully enforced against all employers.”
Justice Neil Gorsuch said Michel was making broad claims.
“Here we’re being asked to adopt a view of implicit penumbras emanating ... from the war powers that the president and the Congress have.”
Justice Brett Kavanaugh said states can be sued for civil rights violations and property claims even if they object.
“It would be bizarre not to allow suits in the war powers area, where the national interest is at its apex as compared to those other areas,” he said.
Texas Solicitor General Judd E. Stone II said the states may have given up their war powers in 1787, but they “have retained their prerogative not to be sued.”
Chief Justice John Roberts and Justice Amy Coney Barrett pushed back.
“Well, then that challenges Congress’s judgment ... that the law that is at issue here was essential ... to the ability to raise armies,” Roberts said.
Barrett said, “If the states gave up all of this with respect to war powers and such a crucial aspect of the convention, does it make sense to think ... they retained sovereign immunity?”
