Sovereign Immunity and Military Federalism

by Robert Leider

Are the federal war powers so absolute and exclusive that they include the power to subject state governments to nonconsensual suits for monetary damages?  That was the issue last Tuesday when the Supreme Court heard oral arguments in Torres v. Texas Department of Public Safety.

Le Roy Torres was a Texas State Trooper who also served in the U.S. Army Reserve.  While deployed to Iraq, he allegedly suffered lung damage from trash “burn pits” that made it impossible for him to resume service as a state trooper.  Torres asked to be reassigned to a less physically demanding position, but the Texas Department of Public Safety refused, leading Torres to resign as a trooper.  He sued Texas for monetary damages under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which grants service members reemployment rights for their civilian jobs following their stints in military service.

Texas defended the lawsuit by claiming that it was immune from suit.  As a background common-law rule, state governments (like other sovereigns) are generally immune from lawsuits seeking monetary damages without their consent.  Under various regulatory regimes, Congress sometimes tries to subject states to such suits.  But in Seminole Tribe v. Florida (1996), the Supreme Court held that Congress could not abrogate a state’s sovereign immunity using Congress’s enumerated powers in Article I of the Constitution.

A state’s sovereign immunity is not absolute.  Among the various exceptions, the Court has found that in some cases the states “implicitly consented at the founding” to be sued.  This category of exceptions is known as the “plan of the Convention” theory, and it includes lawsuits by the federal government against states, lawsuits between states, and private suits (using authority delegated from the federal government) seeking to condemn state-owned property.  In the years since Seminole Tribe, the Court has also recognized a plan of the Convention exception under Congress’s Article I bankruptcy power.

Torres involves whether to expand that plan of the Convention exception to Congress’s Article I war powers.  Torres claims that the constitutional provisions governing war, considered in toto, demonstrate that the states consented to lawsuits that Congress authorizes pursuant to its war powers.  The U.S. government agrees that states lack immunity, but on the narrower theory that Congress’s action is proper under its constitutional authority to raise and support armies and provide for a navy.

At oral argument, some Justices and Torres’s attorney, Andrew Tutt, contended that a “plan of the Convention” theory applies because of the exclusivity of federal war powers.  During questioning, Justice Kavanaugh emphasized that the Constitution gave the war powers entirely to the federal government.  For example, he asked Mr. Tutt, “[H]ow important is the text of Article I, Section 10, which explicitly divests the states of anything on the war powers?”  Justice Barrett asked Texas’s Solicitor General Judd Stone, “if the states gave up all of this [i.e., their war powers] . . . does it make sense to think, oh, but they retained sovereign immunity?”  She called sovereign immunity “small potatoes when you think about everything else they relinquished in this area.”  And on rebuttal, Mr. Tutt argued that “[t]he purpose of sovereign immunity is to protect liberty and the local autonomy of the states . . . .  But, in the area of war,” he continued, “it is only by vesting the war powers exclusively in the federal government that liberty can [be] protected in the way that the Constitution intends.”

This theory for abrogating sovereign immunity might have some plausibility if the Framers had actually vested all the war powers in the federal government.  But they did not.  Quite the contrary, the Framers feared giving any level of government an unchecked monopoly of force, so they divided the war powers between the federal government and the states.

The Constitution granted the federal government substantial power to form a professional military.  Congress could “raise and support Armies” and “provide and maintain a Navy.”  The only limitation on Congress’s power over the professional military was that it could not appropriate money for the army for more than two years.  (This limitation was designed to facilitate periodic debate in Congress about the necessity and size of the standing army.)  But Congress had much less power over the militia.  Congress could make uniform rules for “organizing, arming, and disciplining, the Militia” and it could “govern[] such Part of them as may be employed in the Service of the United States.”  But Congress could not federalize the militia, except to “execute the Laws of the Union, suppress Insurrections[,] and repel Invasions.”  Usual control of the militia remained with the states.  (I explain the federal-state division of military power in more depth in my article Federalism and the Military Power of the United States.)  During oral argument, Justice Breyer commented on how many different clauses in Article I, Section 8 concern the war powers, wondering whether this showed federal exclusivity.  But the Constitution has so many different provisions on the war powers because the Framers carefully divided the war powers between the federal government and the states, not because the Constitution gave plenary and unrestrained authority to the federal government (which the Framers could have accomplished in substantially fewer provisions).

Nor, as some Justices contended, did Article I, Section 10 of the Constitution completely divest states of their war powers.  Article I, Section 10 permits states to make defensive war without Congress’s consent.  States may even initiate defensive war if necessary to prevent an imminent invasion.  And once war breaks out, Article I, Section 10 does not prohibit states from raising professional armies and navies; congressional consent is not required.

So, what does Article I, Section 10 limit?  That section divests states of their power to make offensive war.  We do not think much about the distinction between offensive and defensive war today; modern international law has supposedly outlawed most offensive war.  But at the Framing, offensive wars were wars undertaken to enforce a country’s rights or to punish another country—the kinds of war that primarily implement foreign policy rather than self-defense.  Article I, Section 10, much of which restricts the states’ ability to engage in independent foreign policy, prohibits states from undertaking offensive wars on their own authority.  Relatedly, Article I, Section 10 prohibits states, without congressional consent, from having professional armies and navies in peacetime.  This prevents states from using standing, professional military forces to project power outside their borders.  But again, this is not an absolute bar; states may have professional forces in peacetime if Congress consents. And nothing in Article I, Section 10 deprives states of their usual control over the (nonprofessional) militia.

Complicating the constitutional analysis even more is the fact that Mr. Torres is a member of the U.S. Army Reserve.  The Constitution contemplates two kinds of land forces:  armies and militia.  As I have argued in a recent paper, the critical dividing line between them had to do with professionalism.  The “armies” were the regular forces—professional, full-time soldiers.  The “militia,” in contrast, comprised nonprofessional citizen-soldiers—people who were “civilians primarily, soldiers on occasion.”  And the problem here is that the U.S. Army Reserve is actually a species of organized militia.  As Mr. Tutt correctly explained at oral argument, in the early 1900s, “[r]ather than create a massive peacetime standing army, the United States instead created a reserve component, trained soldiers who would keep their civilian jobs.”  Under a proper original understanding of the Constitution, control of the Army Reserve should be split between the federal and state governments pursuant to the Militia Clauses.  In other words, Torres belonged to the kind of military force (a nonprofessional militia) that the Constitution contemplates would be the subject of concurrent federal-state jurisdiction.  In fact, during the Constitutional Convention, the Framers debated whether the federal government should have the power to organize an exclusively federal militia and rejected the idea.  So ironically, Torres’s “plan of the Convention” argument posits exclusive federal control of a military force (a federal select militia) that was explicitly rejected by the plan of the Convention.

Now, perhaps this is not the end of Torres’s claim.  The “plan of the Convention” cases constitute only one category of exceptions to a state’s usual sovereign immunity.  Congress may also validly abrogate state sovereign immunity using its authority under Section 5 of the Fourteenth Amendment.  The Fourteenth Amendment does not specifically address the federal-state balance of military power.  But Akhil Amar and David Yassky have sophisticated arguments that the Fourteenth Amendment, by making national citizenship paramount, fundamentally enlarged the scope of federal military power, especially when understood against the backdrop of the Civil War and Reconstruction.  I disagree with these claims.  (You can see my reasons why on pp. 1048–1049 of this article.)  For now, though, I will just say that if the Court agrees with Amar and Yassky, then it should be relying on Congress’s Fourteenth Amendment powers—not the original plan of the Convention theory—to justify USERRA’s abrogation of state sovereign immunity.

Finally, for those who follow the Second Amendment, Torres should be of some interest because it, yet again, illustrates the methodological hypocrisy of judges asserting the collective-right view of the Second Amendment.  These judges claim that the Second Amendment was a response to Anti-Federalist concerns about excessive nationalization of the military in Article I, Section 8 of the original Constitution—particularly Congress’s (supposed) exclusive power to organize and arm the militia.  According to these judges, the Second Amendment preserved the autonomy of the states against the federal government by guaranteeing the states’ power to organize and arm their own military forces.  During the Torres argument, the Heller and McDonald dissenters should have been asserting that the Second Amendment repudiated the idea of exclusive federal war powers.  But they didn’t.  To the contrary, Justice Sotomayor suggested that the congressional power to organize, arm, and discipline the militia was “purely a federal right”—apparently forgetting that she joined Justice Stevens’s dissent in McDonald, which argued for the opposite position.  In gun-control cases, collective-right judges may assert that the Second Amendment gave back some of the war powers that the states had ceded in the original Constitution.  But in military law cases, it becomes clear that these judges do not actually believe that.  (J. Norman Heath has an excellent article on this.)  Whatever one’s theory of the Second Amendment’s scope, that theory should be consistent across both gun-law and military-law domains.