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Torres v. Texas Department of Public Safety

In Torres v. Texas Department of Public Safety, the Supreme Court is considering whether the states, by ratifying the Constitution, gave Congress the power to authorize suits against states using its constitutional war powers.

Case Summary

Petitioner Le Roy Torres was employed as a state trooper for the Texas Department of Public Safety (DPS) while enlisted as a U.S. army reservist. In 2007, while deployed to Iraq on active duty, Torres suffered lung damage after being exposed to toxic fumes emanating from the now infamous “burn pits” that U.S. forces used to get rid of waste on military bases. In 2008, Torres was honorably discharged from the army and notified the DPS that his lung damage would prevent him from performing his duties as a state trooper and requested that they put him in a different position. DPS denied the accommodation request and stipulated that his employment would be terminated if he did not report to duty as a state trooper. Torres subsequently sued DPS in state court, arguing that the agency violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a federal statute that protects the employment rights of servicemembers and veterans, by not offering him reemployment in a position that accommodated his disability. DPS moved to dismiss the case, arguing that Texas is immune from lawsuits brought under USERRA. The trial court denied that motion, and a Texas appeals court reversed the trial court’s order. After the Texas Supreme Court denied review, Torres asked the United States Supreme Court to hear the case, and it agreed. On February 7, 2022, CAC filed an amicus brief in support of Torres, explaining that the Constitution’s text, history, and structure make clear that state sovereign immunity poses no bar to suits authorized by Congress’s war powers. Because Congress passed USERRA as an exercise of its war powers, states have no immunity from suits, like the one here, brought to redress violations of USERRA.

Our brief makes three main points.

First, our brief explains that when the states decided to ratify the Constitution, they consented to waive their immunity for certain types of suits. This concept of acquiescence to suit under the plan of the Constitutional Convention, or “plan waiver,” has repeatedly been affirmed by the Supreme Court. As our brief explains, when the Framers met at the Constitutional Convention in 1787, they sought to create a cohesive national sovereign in response to the failings of the Articles of Confederation. The war powers were the Framers’ primary response to these shortcomings and granted the federal government sweeping and exclusive authority over the nation’s military affairs. By ratifying the Constitution, states accepted the enhanced protection and fortitude that comes with a strong federal military and, in exchange, gave up the vast majority of their sovereign interests in matters of war—including their immunity from suit.

Second, our brief explains that the states’ consent to suit under the war powers is further demonstrated by historical evidence that they consented to suits brought under treaties. Under the Articles of Confederation, the federal government had no way to ensure that states would comply with the national government’s significant contractual and treaty obligations to foreign nations. In response, the Framers made certain that the nation’s judiciary could compel the observance of treaties and that the states could be sued for violating those treaties. The power to declare war and the power to avoid or end war through treaty are complementary, both grounded in the Framers’ desire to build a strong nation and avoid military entanglements with more established countries in the vulnerable post-Revolutionary War era. Thus, the states’ consent to suits relating to treaties strongly implies their consent to suits under Congress’s war powers.

Finally, our brief argues that the court below failed to consider relevant post-ratification evidence that supports the conclusion that states surrendered their immunity from suits under the war powers. In the 1830s and 1840s, Congress exercised its war powers to extend habeas jurisdiction to certain state prisoners. Virtually no immunity-related objections were raised to these laws, although they would have plainly made state officials amenable to suit. This demonstrates that lawmakers after ratification understood that states were not immune from suits authorized by Congress’s war powers.

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