Supreme Court Report

SCOTUS will consider war powers in case of ailing veteran claiming employment discrimination

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Le Roy Torres’ U.S. Supreme Court case began, in a sense, thousands of miles away from his home in Corpus Christi, Texas, on a military base in Iraq during the heart of the U.S.-Iraq war.

His relatively straightforward case alleging employment discrimination based on his military service has evolved into a significant question about “war powers” under the U.S. Constitution. The case asks whether Congress may subject non-consenting states to private lawsuits based on its powers under Article I “to raise and support armies” and to “provide and maintain a navy.”

It is “a question of exceptional importance,” Philip C. Bobbitt, the director of the Center for National Security at Columbia University School of Law, says about Torres v. Texas Department of Public Safety, which will be argued on March 29.

Torres, 49, joined the U.S. Army Reserve in 1989, when he was still in high school. His father had been in the military, and Torres wanted to serve his country and give himself job and educational opportunities.

He served 23 years, including seven on active duty. While on reserve status, he attended the Texas state police academy in 1998, becoming a trooper with the highway patrol. In 2007, he deployed to Joint Base Balad, north of Baghdad, as part of the U.S. war effort.

He faced occasional indirect gunfire, but the larger danger proved to be the “burn pits” near his base, where contractors incinerated various forms of trash, weapons, medicine, and human waste, exposing Torres and thousands of other service members to toxic fumes and smoke.

“I arrived the Sunday before Thanksgiving that year, and all I remember is stepping off a shuttle and there was this terrible stench,” Torres says. “It was all around us.”

Torres developed several lung ailments, and after about a year in Iraq, his deployment ended and he was honorably discharged from the Army with the rank of captain. He sought to return to work at the Texas Department of Public Safety, but he told his superiors he could no longer serve on patrol duty and would need a reasonable accommodation, such as a desk job.

What happened next is still in dispute. Torres says he was denied such an accommodation and instead offered a temporary position in his previous capacity as a trooper. He says he was told he would be fired if he did not report for duty. Torres resigned.

The state, in court papers, says it “accommodated Torres by transferring him to an administrative position,” and the parties disagree about what led Torres to quit.

A question of state sovereign immunity

Torres sued in state court under the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, a federal statute passed after the Persian Gulf War to strengthen federal reemployment protections for military service members that had begun during World War II. In 1998, Congress amended the law to expressly allow suits against state governments in state court, after the Supreme Court had ruled in a separate context that Congress did not have the power to subject state governments to suit in federal court.

Texas argued in Torres’ case that the state had sovereign immunity from such suits, despite the 1998 amendment to USERRA. A trial judge rejected the state’s argument, but the Texas Court of Appeals, a midlevel state appellate court, held that USERRA was unconstitutional to the extent it authorized suits against states because Congress lacks the power to abrogate sovereign immunity under its war powers. (The Texas Supreme Court denied review.)

In the Supreme Court, lawyers for Torres argue that states relinquished their sovereign immunity in the context of war powers when they ratified the Constitution.

“Permitting state employers to discriminate against soldiers for their military service will materially interfere with the ability of the United States to provide for the national defense,” Torres’ lawyers argue in a brief. “It will also harm thousands of veterans and service members, leaving them without a remedy when their state employers discriminate against them on the basis of their service.”

Brian J. Lawler, a San Diego attorney specializing in veterans’ rights and one of Torres’ lawyers, says the Persian Gulf War and the passage of USERRA made the concept of the “citizen-soldier part of the public awareness.”

“Congress recognized that these citizens should be protected when they are called to don the colors of the military,” he says. USERRA is generally working well to protect reservists’ reemployment rights, but more states are claiming sovereign immunity from suits seeking to enforce individual rights under the statute, he adds.

Two Supreme Court decisions lent momentum to that trend. In 1996, in Seminole Tribe of Florida v. Florida, the court held that state sovereign immunity barred Congress from relying on its Indian Commerce Clause power to authorize private damages suits against states in federal court. In 1999, the court held in Alden v. Maine that sovereign immunity principles barred Congress from subjecting states to private damages suits in state court under the Fair Labor Standards Act of 1938.

States began to successfully invoke sovereign immunity as a defense to USERRA suits in state courts even after the Supreme Court held in a 2006 case, Central Virginia Community College v. Katz, that states could not invoke sovereign immunity in certain federal bankruptcy proceedings.

Reaching back to the Revolutionary War

Briefs in Torres’ case are filled with references to the Constitutional Convention and the Federalist Papers as well as modern military manuals and medical articles about burn-pit exposure.

“In a new military context in which we not only don’t have a draft but don’t need a draft, we need highly trained technical people in the service,” says Bobbitt, who joined other scholars in an amicus brief supporting Torres. “We need a very sophisticated corps of men and women. And one major aspect of being able to recruit and retain the people we need is to say that if you leave your job for reserve duty, we can offer you protection when you go back to it.”

Torres also has the support of President Joe Biden’s administration, which argues that the Constitution’s framers included the war powers provisions “in response to the nearly catastrophic failure of the states to provide troops and military supplies during the Revolutionary War. The records of the Constitutional Convention and of the ratification make clear that the war powers were understood as exceptionally broad, exclusive to the federal government and critical to the nation’s preservation.”

Texas argues in a brief that Torres and his allies offer no compelling evidence that the states surrendered their sovereign immunity in the context of war powers.

“Because the power to wage war is both the final bulwark of freedom and its greatest threat, the Founding generation—after months of debate—granted Congress only limited, specific powers, some of which could be used to prosecute a war,” the state says in a brief. “Not one of those powers includes the ability to subject non-consenting states to civil lawsuits by service members.”

R. Trent McCotter, the director of the Separation of Powers Clinic at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, filed an amicus brief in support of Texas, arguing that the states entered the union “with their sovereignty intact subject only to narrow exceptions.”

Despite the significance of Congress’ war powers under the Constitution, he says, “The scope of the federal government’s interest doesn’t seem to be relevant to whether a private individual can sue a state,” he says.

Advocacy on burn pit issues

Torres has a diagnosis of constrictive bronchiolitis—a respiratory condition that causes narrowing of the airways and difficulty breathing—as well as toxic brain injury. He had to battle the federal Department of Veterans Affairs before it accepted his medical claim.

He and his wife, Rosie, started an advocacy group called Burn Pits 360, which includes an informal registry of veterans with health symptoms of the type experienced by Torres. She was in Washington recently to attend a congressional hearing in support of pending legislation that would improve benefits for veterans exposed to burn pits. They were heartened when President Biden mentioned burn pits in his State of the Union address on March 1.

Torres will be in Washington for oral arguments, even though he cannot enter the courtroom, which is still closed to the public. He plans to visit lawmakers and give more press interviews about his case and the burn pits issue.Torres knows that even if he wins before the Supreme Court, that would merely send his suit back to the trial court for further proceedings.

“I know that what is before the Supreme Court is just the sovereign immunity issue,” he says. “It goes back to the Founding Fathers and James Madison. It’s very deep. But I’m hopeful about where we stand right now.”

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