The NCSL Blog


By the State and Local Legal Center

In Torres v. Texas Department of Public Safety the U.S. Supreme Court held 5-4 that Congress’s war powers allow it to subject non-consenting states to money damages lawsuits under the Uniformed Services Employment and Reemployment Rights Act (USERRA). 

US Supreme CourtWhile deployed in Iraq, Le Roy Torres was exposed to toxic burn pits which caused him to have health problems and no longer be able to work in his old job as a state trooper. He asked his former employer, the Texas Department of Public Safety (Texas), to reemploy him in a different role, but it refused to do so.

Torres sued Texas claiming it violated USERRA’s mandate that state employers re-hire returning servicemembers, use “reasonable efforts” to accommodate a service-related disability, or find an “equivalent” position if a disability prevents the veteran from holding his or her prior position. Invoking sovereign immunity, Texas claimed it can’t be sued under USERRA.

In an opinion written by Justice Stephen Breyer, the court held that Texas waived its sovereign immunity.

Congress enacted USERRA as part of its U.S. Constitution Article I authority “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” Sovereign immunity prevents courts from hearing a suit brought by any person against a nonconsenting state. But there are many exceptions to sovereign immunity, including “structural waivers.” As relevant to this case, Justice Breyer stated that per Alden v. Maine (1999) states may be sued if they agreed their sovereignty would yield as part of the “plan of the Convention,” that is, if “the structure of the original Constitution itself” reflects a waiver of states’ sovereign immunity.

In PennEast Pipeline Co. v. New Jersey (2021) the Court articulated 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.’”

According to Breyer, the Constitution’s text, history, and Supreme Court precedent demonstrate that “when the states entered the federal system, they renounced their right to interfere with national policy” in the area of war.

Regarding text, the court noted that “across several Articles,” the Constitution “strongly suggests a complete delegation of authority to the federal government to provide for the common defense.” “The constitution also 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.’”

History, the court reasoned, “teaches the same lesson.” “The founders recognized, first and foremost, ‘that the confederation produced no security agai[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by the[ir] own authority,’ because congress lacked the power to marshal and maintain a fighting force ‘fit for defence.’”

Finally, an “unbroken line of precedents” supports the conclusion “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.”

Justices Clarence Thomas, joined by Justices Samuel Alito, Neal Gorsuch and Amy Coney Barrett dissented: “Today, by adopting contrived interpretations of Alden and the recent decision in PennEast, the court holds that at least two (and perhaps more) Article I ‘war powers’ do, in fact, include ‘the power to subject nonconsenting states to private suits for damages in state courts,’ . . .  and that Congress has exercised that power by enacting [USERRA]. Alden should have squarely foreclosed that holding.”


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.