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On June 29, the Supreme Court provided its clearest exposition of congressional war powers in decades in Torres v. Texas Dep’t of Public Safety. The Court held that Congress may authorize private suits under its war powers against nonconsenting states, despite a doctrine called state sovereign immunity, which usually bars such suits. This decision reasoned that, in ratifying the Constitution, states “agreed their sovereignty would yield to the national power to raise and support the Armed Forces.”
As I’ve detailed previously on Lawfare, Torres centered on the issue of state sovereign immunity, examining whether Congress may authorize private citizens to sue nonconsenting state governments under the War Powers Clause. Army Reservist and Texas state trooper Le Roy Torres was called to active duty in 2007. During his service in Iraq, he was exposed to toxic burn pits, leading to constructive bronchitis. Unable to work at his old job, Torres requested an accommodation and was refused. He then sued the Texas Department of Public Safety under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA, a statute enacted under Congress’s powers to raise and support a military, allows injured veterans to sue their employers for employment discrimination. Lower Texas courts dismissed his suit on the basis that citizens cannot sue states, leading Torres to then petition to the Supreme Court to hear his case.
In general, neither federal nor state courts may hear private citizens’ lawsuits against states, but there are some exceptions. First, states could consent to be sued. Second, Congress could override state sovereign immunity by statute authorizing suit under its powers to enforce the 14th Amendment—though it may not use its various Article I legislative powers, such as the Commerce Clause, to abrogate in this manner. Third, states may be sued where there is a “structural waiver”—that is, where the constitutional structure suggests that states consented to waive their sovereign immunity in the “plan of the Convention” when they ratified the Constitution. Two Supreme Court decisions in the past few decades have held that the structural waiver exception applied for Congress’s legislative powers: Central Va. Community College v. Katz (2006), which authorized suits under Congress’s bankruptcy power, and PennEast Pipeline Co. v. New Jersey (2021), which authorized suits under eminent domain powers.
In Torres, the question was whether the Court would extend this structural waiver theory to war powers—specifically, Congress’s Article I legislative powers to “raise and support Armies” and “provide and maintain a Navy.”
Historically, conservative justices have been the champions of state sovereign immunity, while liberal justices have been more skeptical. It was therefore notable that Chief Justice John Roberts and Justice Brett Kavanaugh joined with the three liberal justices in the majority. Justice Stephen Breyer wrote the five-justice majority opinion (the last of his majority opinions ever released), while Justice Clarence Thomas wrote the dissent for himself and Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.
The Majority Opinion
The Court’s opinion had two primary components. First, the Court clarified its state sovereign immunity jurisprudence, setting out a test for when structural waiver applies. Second, in explaining why war powers meets the structural waiver test, the Court elaborated on the scope of congressional war powers for the first time in decades.
Structural Waiver as an Exception to State Sovereign Immunity
Despite repeated statements that Congress cannot abrogate state sovereign immunity outside of 14th Amendment enforcement, the Supreme Court has, in recent decades, recognized two cases in which the structural waiver exception applied for Congress’s legislative powers. In Central Va. Community College v. Katz (2006), Congress recognized that states consented to suits that Congress authorized under its bankruptcy power, and in PennEast Pipeline Co. v. New Jersey (2021), the Court held that states similarly consented to suits authorized under Congress’s eminent domain powers.
The Court presented PennEast as a watershed, breaking with the previous narrow application of structural waiver to bankruptcy powers only in Katz and establishing a definitive test for when structural waiver is applicable. According to the Torres opinion, PennEast defined the test for structural waiver as “whether the federal power at issue is ‘complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.’” By ratification, the states implicitly agreed to yield their sovereign immunity when the federal government exercised these powers. They agreed never to frustrate congressional attempts to exercise those federal powers, including by asserting state sovereign immunity. State consent, thus, can never be a condition precedent to the federal government exercising those powers.
Breyer cited Hamilton’s statement in Federalist #32 that structural waiver occurred whenever:
the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.
Breyer’s opinion suggested that the “complete in itself” test effectively allows any of these three circumstances to indicate that states consented to structural waiver. Torres thus clarified that the “complete in itself” test will likely govern state sovereign immunity issues in the future.
Further clarifying the structural waiver test, the Court declared that it was not limited to suits involving property, given language in PennEast suggested that bankruptcy and eminent domain were linked by the fact that each involved suits concerning property. Torres, however, insisted that the “complete in itself” test—not the property requirement—is the key.
Congressional War Powers
Having established the state sovereign immunity test, the Court applied it to congressional war powers. In determining whether a federal power is “complete in itself,” the Court analyzed text, history, and precedent. The majority laid out a maximalist vision of congressional war powers, at least as it relates to states’ powers.
The Court stated that the Constitution’s text “strongly suggests a complete delegation of authority to the Federal Government to provide for the common defense.” In “many broad, interrelated provisions,” the Constitution grants a series of eight legislative war powers to Congress, makes the president as commander-in-chief of the U.S. military, and charges the federal government, not the states, with protecting each state against invasion. On the flip side, the Court wrote, the Constitution:
“divests the States of like power. States may not “engage in War, unless actually invaded,” “enter into any Treaty,” or “keep Troops, or Ships of War in time of Peace.” Art. I, §10, cls. 1, 3. States retain a role in “the Appointment of the Officers” to and the “training [of] the Militia,” but that delegation is strictly cabined. Art. I, §8, cl. 16. States must do so “according to the discipline prescribed by Congress.” Ibid.”
According to the Court’s opinion, this federal grant and state divestment suggests the Constitution barred states from “frustrating national objectives” regarding common defense.
The Court explained how Founding-era history further supports this maximalist view of congressional war powers. Per the Court, the Framers called the Constitutional Convention in large part because of the failure of the Articles of Confederation to provide mechanisms for maintaining an adequate military. The Constitution replaced the Articles’ quota and requisition system that had required the sovereign states’ acquiescence, instead empowering Congress to directly raise and support a military. Over states-rights Anti-Federalist objections, “[t]he States ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy.” In other words, states agreed to not thwart federal military policy.
The Court also discussed how statements and holdings over centuries of Supreme Court precedent supported the view that “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.” The Court has barred states from retrieving a deserted soldier through state habeas corpus and approved federal statutes tolling state court statutes of limitations in state courts for suits against soldiers, prevented states from interfering with the draft, overridden state estate law for dead veterans, and eliminated the need for governors’ consent to send that state’s National Guard troops to active military service even in peacetime.
As the Court explained, quoting a well-known speech by former Chief Justice Charles Evans Hughes, “the power to wage war is the power to wage war successfully.” The states, thus, agreed to sacrifice their sovereignty over common defense matters to ensure Congress could successfully wage war on their behalf. This history proved to the Court that state attempts to thwart the federal government’s ability to raise and support a military would be “CONTRADICTORY and REPUGNANT” to the Constitution.
The Court concluded with a practical argument: Permitting states to claim sovereign immunity in USERRA actions would permit states to protest nationally declared wars by barring returning service members from employment. Because “the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense,” the Constitution does not permit this “potentially debilitating effect on national security.”
Thomas wrote the dissent, which rejected the Court’s holding on several grounds. First, the dissent disagreed with the majority’s reading of USERRA’s text, contending that it was ambiguous whether Congress even intended USERRA to authorize suits against nonconsenting states. Absent a clear statement of intent to permit suits despite state sovereign immunity, the Court should require a clearer statement before it permitted suits against states, the dissent argued.
Second, the dissent took issue with the majority’s eliding the difference between state sovereign immunity in federal and state court. The dissent stressed that Katz and PennEast involved federal courts, so Torres was the first time the Court ever permitted suits under Article I-authorized statutes in state court. The dissent argued that sovereign immunity precedent and Founding-era history reveals that, at the very least, the states never consented to be sued by individuals in their own courts.
The dissent also disagreed with the majority’s war powers analysis. The dissent insisted that the Constitution’s express divestment of state war powers should be irrelevant. Moreover, the dissent argued that “[s]tates have significant residual police powers that overlap with Congress’ power over the military.” The Court has upheld state legislation regarding enlistment and even permitted states to use their police powers in a manner that burdens federal military powers. After all, states pass any number of laws that might incidentally impinge on federal military readiness.
Ultimately, the dissent was concerned with the implications of the majority’s broad view of structural waiver. If structural waiver applies to any congressional power that is both given to Congress and denied to the states, structural waiver might be extended more broadly. The dissent feared the Court’s ruling would logically require concluding that “the States would have consented in the plan of the Convention to surrender their immunity against the exercise of any Article I power.” For the dissent, the “complete in itself” test not only misreads the Court’s state sovereign immunity jurisprudence but also threatens to undermine state sovereign immunity in other contexts.
While the Court’s insistence on the “complete in itself” test is certainly clarifying, Torres raises some questions about the future of the Court’s state sovereign immunity jurisprudence.
For example, the Court has long recognized that the Commerce Clause grants Congress the power to regulate interstate commerce, and, under the Dormant Commerce Clause, states are forbidden from doing so. To what extent would Congress’s powers under the Commerce Clause meet the “complete in itself” test? What would that mean for the basic holding in Seminole Tribe, which held that Congress cannot abrogate state sovereign immunity under its Commerce Clause power to permit individual suits against states? The dissent worried that the Court is trending in that direction.
The majority distinguished the Commerce Clause by noting that the goods traveling interstate are first regulated by a state sovereign, and thus the federal government’s commerce power is not “complete in itself.” Moreover, Breyer asserted that, given the centrality of the common defense in the Constitution, state interference with congressional war powers would be uniquely repugnant to the constitutional order, in a way that interference with other congressional powers would not be. Whether the Court will continue to expand the exceptions to state sovereign immunity is an open question.
Then again, conservatives Roberts and Kavanaugh, in particular, have been deferential on national security issues historically, but less so on state sovereign immunity generally—suggesting that war powers may be unique.
This leads to the other major implication from Torres. The Supreme Court rarely hears cases concerning war powers at all—let alone those belonging to Congress rather than to the president. Torres was notable in part because the last major Supreme Court statement on congressional powers over the military vis-a-vis the states was in Perpich v. Dep’t of Defense in 1990, when the Court held that Congress could authorize National Guard members to be ordered to active federal duty outside of the country, without state governors’ consent. In Torres, the current Court embraced a maximalist vision of the federal government’s powers over the military and insisted that Congress had sweeping plenary power that states could not frustrate.
While the Court may have drifted rightward on many issues in recent years—limiting federal government power and stressing states rights federalism—Torres is an indication that the Court remains committed to a vision of plenary federal government power over the military and resistant to state interference.