Amicus Curiae Brief — Le Roy Torres, Petitioner v. Texas Department of Public Safety

No. 20-603

IN THE

Supreme Court of the United States

LE ROY TORRES,

v.

Petitioner,

TEXAS DEPARTMENT OF

PUBLIC SAFETY,

Respondent.

On Petition for Writ of Certiorari to the Court of

Appeals for the Thirteenth Judicial District,

Corpus Christi, Texas

___________

BRIEF OF PROFESSOR JEFFREY M. HIRSCH AS

AMICUS CURIAE IN SUPPORT OF THE

PETITIONER

F. ANDREW HESSICK

160 Ridge Road

Chapel Hill, NC 27599

(919) 962-4332

DECEMBER 23, 2020

RICHARD A. SIMPSON*

COUNSEL OF RECORD

WILEY REIN LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7314

rsimpson@wiley.law

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES.......................................iii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 6

I. THE CONSTITUTION LIMITS THE STATES’

SOVEREIGN IMMUNITY FROM SUIT. ............. 6

A. The States have surrendered their

sovereignty through several constitutional

provisions..................................................... 7

B. Congress has the power to abrogate state

sovereign immunity through particular

legislative acts. .......................................... 12

II. STATE SOVEREIGN IMMUNITY DOES NOT

BAR ACTIONS BROUGHT UNDER FEDERAL

WAR POWERS LEGISLATION. ........................ 14

A. States have no sovereign immunity in

matters of war. .......................................... 15

ii

i. The structure and text of the

Constitution establish that the States

have no sovereign immunity in matters

of war. ................................................... 15

ii. History shows the States have no

sovereign immunity in matters of war.17

iii. Precedent and practice also show the

States have no sovereign immunity in

military matters…. .............................. 24

B. Even if the States retained sovereign

immunity in matters of war, Congress may

validly abrogate that immunity when it

enacts legislation pursuant to its war

powers. ....................................................... 26

CONCLUSION .......................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ...................................... passim

Allen v. Cooper,

140 S. Ct. 994 (2020) .................................... passim

Central Virginia Community College v.

Katz,

546 U.S. 356 (2006) ...................................... passim

Chisholm v. Georgia,

2 U.S. 419 (1793) .................................................. 24

Diaz-Gandia v. Dapena-Thompson,

90 F.3d 609 (1st Cir. 1996) .................................. 27

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) .................................. 12, 13, 14

Franchise Tax Board of California v.

Hyatt,

139 S. Ct. 1485 (2019) .................................. passim

Hans v. Louisiana,

134 U.S. 1 (1890) ............................................ 6, 7, 8

iv

North Dakota v. Minnesota,

263 U.S. 365 (1923) ........................................ 11, 14

Reopell v. Massachusetts,

936 F.2d 12 (1st. Cir. 1991) ................................. 26

Risner v. Ohio Department of

Rehabilitation & Correction,

577 F. Supp. 2d 953 (N.D. Ohio

2008) ..................................................................... 27

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) ........................................ 6, 7, 13

Tarble’s Case,

80 U.S. 397 (1871) .......................................... 24, 26

United States v. Curtiss-Wright Export

Corp.,

299 U.S. 304 (1936) ........................................ 19, 22

United States v. Texas,

143 U.S. 621 (1892) ........................................ 10, 14

Velasquez v. Frapwell,

160 F.3d 389 (7th Cir. 1998) ................................ 27

Constitutional Provisions

U.S. CONST. art. I, § 8 .......................... 8, 11, 15, 16, 27

U.S. CONST. art. I, § 10 .......................................... 8, 16

v

U.S. CONST. art. II, § 2 ........................................ 15, 27

U.S. CONST. art. III, § 2 ............................................. 10

U.S. CONST. amend. XIV, § 5 .................................... 13

Statutes

38 U.S.C. § 4311 .......................................................... 6

38 U.S.C. § 4323 .......................................................... 6

Other Authorities

ARTICLES OF CONFEDERATION.................................... 18

THE FEDERALIST NO. 3 (John Jay) ............................ 20

THE FEDERALIST NO. 6 (Alexander

Hamilton) ............................................................. 20

THE FEDERALIST NO. 23 (Alexander

Hamilton) ............................................................. 21

THE FEDERALIST NO. 32 (Alexander

Hamilton) ..................................................... 8, 9, 16

THE FEDERALIST NO. 41 (James

Madison) ............................................................... 21

THE FEDERALIST NO. 81 (Alexander

Hamilton) ............................................................... 9

vi

Jonathan Elliot, THE DEBATES IN THE

SEVERAL STATE CONVENTIONS OF THE

ADOPTION OF THE FEDERAL

CONSTITUTION (1827) ............................... 21, 22, 23

Jeffrey M. Hirsch, War Powers

Abrogation, 89 GEO. WASH. L. REV.

(forthcoming 2021) ............................. 19, 21, 22, 23

Charles Lofgren, War Powers, Treaties,

and the Constitution, in THE

FRAMING AND RATIFICATION OF THE

CONSTITUTION 242 (Leonard Levy &

Dennis Mahoney, eds., 1987) ............................... 18

JOSEPH STORY, COMMENTARIES ON THE

CONSTITUTION (1833) ............................................. 7

1

INTEREST OF THE AMICUS CURIAE1

Amicus curiae is a law professor and scholar at the

University of North Carolina School of Law who

teaches, researches, and writes about constitutional

law, including state sovereign immunity.

His

scholarship makes clear that sovereign immunity is

not a bar to private actions against States brought

under legislation enacted pursuant to Congress’s war

powers.

1

The parties were given timely notice of the filing of this brief

and have consented to its filing. No counsel for a party authored

this brief in whole or in part, and no counsel or party other than

amicus or his counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

This Court should grant review because the lower

court erred in concluding that sovereign immunity

bars private suits against States brought under the

Uniformed Services Employment and Reemployment

Rights Act of 1994 (USERRA). Congress validly

exercised its authority under the War Powers Clauses

to authorize private suits against the States under

USERRA.

Although nonconsenting States ordinarily enjoy

sovereign immunity against private suits, the States

surrendered that immunity in some areas by ratifying

the Constitution. See Franchise Tax Bd. of Cal. v.

Hyatt, 139 S. Ct. 1485, 1495 (2019). Whether a

constitutional provision strips the States of immunity

depends on “history, practice, precedent, and the

structure of the Constitution.” Alden v. Maine, 527

U.S. 706, 741 (1999).

These considerations establish that the War

Powers Clauses divest the States of sovereign

immunity in war-related matters. The Constitution

confers on the federal government a wide array of war

powers, ranging from authorizing Congress to declare

war and regulate the armies to making the President

Commander in Chief.

At the same time, the

Constitution explicitly restricts States from exercising

war powers. Although States may maintain militias,

the Constitution confers on the federal government

3

ultimate control over them.

Together, these

provisions establish that the federal government has

absolute power over the military.

History confirms that the States have no

sovereignty in matters related to war. After the

colonies declared independence, they ceded their

sovereignty over war-related matters to the federal

government in the Articles of Confederation, which

placed significant war powers in the hands of

Congress and explicitly excluded the States from

exercising the same. To the extent that the States

retained any residual sovereignty in matters of war

under the Articles, they surrendered it when they

ratified the Constitution. The history surrounding the

drafting and ratification of the Constitution

illustrates that the Framers recognized the unique

importance of subordinating state sovereignty in warrelated matters, despite establishing a government of

dual sovereigns in most areas. The Constitution was

thus drafted intentionally with an eye towards

effecting that subordination, as evidenced by its

ratified text and structure.

Consistent with this history and the text of the

Constitution,

this

Court’s

precedents

also

demonstrate that there is no role for the States in

matters of war.

4

Accordingly, States cannot assert sovereign

immunity in suits alleging violations of federal

statutes enacted pursuant to the war powers.

Even if the war powers did not strip the States of

sovereign immunity by their own force, Congress

would still have the authority under the War Powers

Clauses to abrogate state sovereign immunity by

statute.

This Court has long recognized that constitutional

provisions can empower Congress to abrogate state

sovereign immunity through legislative enactments.

In particular, this Court has held that Congress may

abrogate immunity under Section 5 of the Fourteenth

Amendment, explaining that the Amendment altered

the balance of power between the state and federal

governments by subordinating States to Congress.

The

Constitution’s

war-related

provisions

similarly empower Congress to abrogate state

sovereign immunity.

Those provisions confer

sweeping power on Congress to maintain armies and

make war. At the same time, the Constitution

significantly restricts the States’ authority in matters

of war, leaving them only with limited authority over

militias, and even subjecting that limited power to

federal control.

Together, these provisions alter the typical

arrangement of concurrent authority in the state and

federal governments. They plainly subordinate States

5

to the federal government in war-related matters.

Accordingly, even if the States retained some aspects

of sovereignty in matters related to war, Congress

validly abrogated that immunity through USERRA.

6

ARGUMENT

Exercising its war powers, Congress enacted

USERRA, which prohibits employers from taking

adverse employment actions against military

servicemembers because of their military service and

creates a cause of action against State employers that

violate its provisions. 38 U.S.C. §§ 4311, 4323(a)(3).2

The lower court erred in holding that sovereign

immunity bars these private suits against States.

This Court should grant review to correct the lower

court’s erroneous decision.

I. The Constitution limits the States’ sovereign

immunity from suit.

The dual sovereignty of the States and the federal

government is a fundamental feature of our

constitutional design: the Constitution “specifically

recognizes the States as sovereign entities.” Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.15 (1996).

Immunity from suit is an important aspect of the

States’ sovereignty. See Hans v. Louisiana, 134 U.S.

1, 16 (1890). Where it applies, that immunity bars

courts from hearing a private suit against a State

absent the State’s consent, Allen v. Cooper, 140 S. Ct.

2

Amicus adopts petitioner’s argument that USERRA was

implemented pursuant to Congress’s war powers. See Pet. for

Writ of Cert. at 6.

7

994, (2020), both in state and federal court. Alden v.

Maine, 527 U.S. 706, 713 (1999).

Sovereign immunity does not derive from the

Constitution. See Alden, 527 U.S. at 741. Instead, it

rests on the “inherent . . . nature of sovereignty not to

be amenable to the suit of an individual without [the

sovereign’s] consent.” Seminole Tribe, 517 U.S. at 54

(quoting THE FEDERALIST NO. 81 (Alexander

Hamilton)). Accordingly, although reflected in part in

the Eleventh Amendment, U.S. CONST. amend. XI, the

States’ immunity is not derived from or limited to the

text of that amendment. Hans, 134 U.S. at 15; Alden,

527 U.S. at 713.

This Court has long recognized, however, that

sovereign immunity does not preclude all suits

against a State. As Justice Story explained, a State’s

sovereignty may be limited by bounds which a State

“chooses to impose upon itself.” 1 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION 194 (1833). For

this reason, States may waive their immunity in

specific cases or as to entire categories of lawsuits. See

Hans, 134 U.S. at 17.

A. The States have surrendered their

sovereignty through several

constitutional provisions.

One way in which the States have relinquished

immunity is by agreeing in the Constitution to

“surrender” their sovereignty in some respects. See

8

Hans, 134 U.S. at 13 (quoting THE FEDERALIST NO. 81

(Alexander Hamilton)); Alden, 527 U.S. at 716–17

(same); THE FEDERALIST NO. 32 (Alexander

Hamilton).

Accordingly, States do not have

sovereignty where it has been “altered by the plan of

the

Convention

or

certain

constitutional

Amendments.” Alden, 527 U.S. at 713. “[H]istory,

practice, precedent, and the structure of the

Constitution” demonstrate where these wholesale

waivers occurred. Id. at 741.

The Founders understood that the States

surrendered their sovereignty in several areas under

the Constitution. For instance, Hamilton explained

that States would “alienate” their sovereignty “where

[the Constitution] granted in one instance an

authority to the Union, and in another prohibited the

States from exercising the like authority.” THE

FEDERALIST NO. 32 (Alexander Hamilton).

For an example, Hamilton pointed to the power to

impose taxes and duties on imports and exports. He

explained that, although States had general authority

to tax and impose duties, they relinquished that

power in the Constitution. He noted that Article I,

section 8 gives Congress the power to lay and collect

taxes, duties, and imposts. U.S. CONST. art. I, § 8. At

the same time, Article I, section 10 prohibits the

States from laying imposts or duties on imports or

exports. U.S. CONST. art. I, § 10. Together, these

provisions established that the States surrendered

9

their taxing power over imports or exports, leaving

exclusive power in the federal government. THE

FEDERALIST NO. 32 (Alexander Hamilton).

Although the focus of Federalist No. 32 was the

States’ ability to enact legislation, Hamilton expressly

extended his reasoning to sovereign immunity. THE

FEDERALIST NO. 81 (Alexander Hamilton) (“The

circumstances which are necessary to produce an

alienation of State sovereignty were discussed in

considering the article of taxation.”).

According to Hamilton, in addition to instances

expressly limiting state power, the Constitution

would strip States of sovereignty “where it granted an

authority to the Union, to which a similar authority in

the States would be absolutely and totally

contradictory and repugnant.” THE FEDERALIST NO.

32 (Alexander Hamilton) (emphasis in original). To

illustrate, Hamilton pointed to Congress’s power “to

establish a uniform rule of naturalization.” U.S.

CONST. art. I, § 8, cl. 4. He explained that power “must

necessarily be exclusive; because if each State had

power to prescribe a distinct rule, there could not be a

uniform rule.” THE FEDERALIST NO. 32 (Alexander

Hamilton). It was not the “mere possibility of

inconvenience in the exercise of powers, but an

immediate constitutional repugnancy that can by

implication alienate and extinguish a pre-existing

right of sovereignty.” Id.

10

Following this view that States do not retain

sovereign immunity when it would be contradictory

and repugnant to the Constitution, this Court has

held that the provision in Article III extending the

federal judicial power to suits in which “the United

States shall be a party,” U.S. CONST. art. III, § 2,

abrogates state sovereign immunity. See United

States v. Texas, 143 U.S. 621, 644–45 (1892); Hyatt,

139 S. Ct. at 1495. Although the provision does not

expressly authorize the United States to sue States,

this Court reasoned that the broad extension of

federal judicial power to all suits in which the United

States is a party meant that relinquishment of state

sovereign immunity was “inherent in the

constitutional plan.” Hyatt, 139 S. Ct. at 1495. This

Court stressed that permitting the United States to

bring suits against States was necessary to “the

permanence of the Union.” United States v. Texas,

143 U.S. at 644–45. Accordingly, by ratifying this

provision, the States agreed to be subject to lawsuits

brought against them by the United States in federal

court. See Hyatt, 139 S. Ct. at 1495.

Likewise, this Court has held that the provision of

Article III authorizing federal court jurisdiction over

disputes between States abrogates sovereign

immunity.

See id.

This Court reasoned that

recognizing federal jurisdiction over these matters

provided a “substitute for the diplomatic settlement of

controversies between sovereigns” that would have

otherwise been necessary, and protected each State

11

from “a possible resort to force.” North Dakota v.

Minnesota, 263 U.S. 365, 372–73 (1923).

The

agreement was “essential to the peace of the Union.”

Hyatt, 139 S. Ct. at 1495 (quoting Principality of

Monaco v. Mississippi, 292 U.S. 313, 328 (1934)).

This Court relied on a similar analysis to conclude

that the Bankruptcy Clause in Article I abrogates

state sovereign immunity. Cent. Va. Cmty. Coll. v.

Katz, 546 U.S. 356, at 362–69, 374–77 (2006). The

Court based its conclusion not only on the text of

Article I, which authorizes Congress to establish

“uniform” bankruptcy laws, U.S. CONST. art. I, § 8, cl.

4, but also on the history and practice leading to

adoption of that clause. As this Court explained, one

of the “intractable problems” facing the new union was

the practice of “one State’s imprisoning of debtors who

had been discharged (from prison and of their debts)

in and by another State.” Katz, 546 U.S. at 363. To

address that problem, the Bankruptcy Clause not only

authorized Congress to enact a bankruptcy code, but

also created a “limited subordination of state

sovereign immunity.” Id. That subordination was

necessary to “harmoniz[e]” bankruptcy law in the

United States. Id. at 362.

To be sure, this Court suggested that Katz is a

“good-for-one-clause-only

holding”

because

“bankruptcy [is] on a different plane.” Allen, 140 S.

Ct. at 1003. In context, however, that statement

signifies only that the unique considerations

12

indicating that the Bankruptcy Clause abrogates

state sovereign immunity do not extend to other

Article I powers. It does not preclude the possibility

that other Article I clauses raise different concerns

that separately abrogate state immunity.

This

Court’s precedents teach that whether other Article I

clauses strip States of immunity depends on whether

history, practice, and the constitutional design

establish that retaining state immunity in the areas

covered by those clauses would be contradictory and

repugnant to the constitutional design. See Alden,

527 U.S. at 741.

B. Congress has the power to abrogate state

sovereign immunity through particular

legislative acts.

In addition to concluding that some constitutional

provisions abrogate state sovereign immunity by their

own force, this Court has held that some

constitutional provisions empower Congress to

abrogate state sovereign immunity. See Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976).3 To do so, Congress

must enact “unequivocal statutory language”

3

This Court recognized the distinction between wholesale waiver

in the constitutional design and the delegation of power to

Congress to abrogate the States’ immunity in Allen, 140 S. Ct. at

1003.

13

abrogating the States’ immunity from suit. Allen, 140

S. Ct. at 1000.

For example, Congress can abrogate state

sovereign immunity through Section 5 of the

Fourteenth Amendment. U.S. CONST. amend. XIV,

§ 5; Fitzpatrick, 427 U.S. at 456. As this Court has

explained,

the

Fourteenth

Amendment

“fundamentally altered the balance of state and

federal power.” Allen, 140 S. Ct. at 1003. It did so by

imposing various prohibitions on the States and

authorizing Congress to enforce those prohibitions

through legislation passed under Section 5. By

granting Congress authority “to enforce . . . the

substantive

provisions

of

the

Fourteenth

Amendment,” Section 5 “necessarily limited” the

States’ sovereignty. Fitzpatrick, 427 U.S. at 456

(internal quotation marks omitted). Accordingly,

Congress has the power under Section 5 to abrogate

state sovereign immunity, so long as it does so

explicitly. Allen, 140 S. Ct. at 1000.

Of course, not every delegation of power to the

federal government implies an abrogation of the

States’ immunity from suit. Seminole Tribe, 517 U.S.

at 72. For example, the Commerce Clauses do not

strip States of immunity, nor do they authorize

Congress to abrogate state sovereign immunity. Id. at

66; Alden, 527 U.S. at 712. The same is true of the

Intellectual Property Clause. Allen, 140 S. Ct. at

1007.

14

Whether the Constitution strips a State of

immunity or authorizes Congress to abrogate

immunity, depends on “history, practice, precedent

and the structure of the Constitution.” See Alden, 527

U.S. at 741. Where States traditionally did not have

immunity in a particular area, or where maintaining

state immunity would threaten the stability of the

Union or undermine the ability of the federal

government to exercise its powers, this Court has

concluded that a State does not enjoy sovereign

immunity. See, e.g., United States v. Texas, 143 U.S.

at 644–45; North Dakota v. Minnesota, 263 U.S. at

372–73; Katz, 546 U.S. at 362; Fitzpatrick, 427 U.S. at

456.

II. State sovereign immunity does not bar

actions brought under federal war powers

legislation.

The Constitution’s structure demonstrates that

States do not have sovereignty in war-related matters.

History, practice and precedent confirm that

conclusion. Accordingly, state sovereignty does not

bar actions brought against States under USERRA.

Moreover, even if the States did not surrender

their sovereign immunity wholesale as to matters of

war by ratifying the Constitution, Congress may

abrogate that immunity when it relies on its war

powers to enact legislation providing for private suits

against a State. The Constitution confers on the

federal government plenary power in matters of war,

15

including the power to subject States to suit when

they interfere in that arena.

A. States have no sovereign immunity in

matters of war.

i. The structure and text of the

Constitution establish that the States

have no sovereign immunity in

matters of war.

Article I, section 8 empowers Congress to “declare

war, grant letters of marque and reprisal, and make

rules concerning captures on land and water”; “raise

and support armies”; “provide and maintain a Navy”;

“make rules for the government and regulation of the

land and naval forces”; “provide for calling forth the

militia to execute the laws of the union, suppress

insurrections and repel invasions”; and “provide for

organizing, arming, and disciplining, the militia, and

for governing such part of them as may be employed

in the service of the United States.” U.S. CONST. art.

I, § 8. Article II, section 2 makes the President the

“Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States,

when called into the actual Service of the United

States.” U.S. CONST. art. II, § 2.

At the same time that it grants sweeping war

powers to the federal government, the Constitution

explicitly prohibits the States’ authority in warrelated matters. States are permitted to appoint

16

officers and train militias, for instance, but only

“according to the discipline prescribed by Congress.”

U.S. CONST. art. I, § 8, cl. 16. Congress can also call

up the States’ militias “to execute the laws of the

union, suppress insurrections and repel invasions.”

Id. art. I, § 8, cl. 15. Further, Article I, section 10

expressly prohibits the States from exercising war

powers by forbidding them from granting letters of

marque or reprisal, keeping troops or ships during

peacetime, or engaging in war unless actually invaded

or invasion is imminent. Id. art. I, § 10, cls. 1, 3.

Article 1, section 8 thus grants Congress a

comprehensive, broad array of powers over military

matters, and Article II expands those powers further

to the Executive.

The States, meanwhile, are

explicitly restricted from acting independently in warrelated matters. See id. art. I, § 10, cls. 1, 3. Where

the States are permitted some power, it is subject to

the ultimate control and direction of the federal

government. See id. art. I, § 8, cls. 15–16.

These provisions granting Congress war powers

and restricting the States of those powers “alienate”

the States’ sovereignty in precisely the way identified

by Hamilton in Federalist No. 32: they grant authority

to the federal government and expressly prohibit the

States from exercising like authority.

THE

FEDERALIST NO. 32 (Alexander Hamilton).

They also demonstrate an instance where

permitting the States to exercise concurrent war

17

powers would be “contradictory and repugnant” to the

conferral of war powers on the federal government.

Id. Unlike with other constitutional powers, the

Constitution grants the federal government an array

of war powers across multiple clauses. The sheer

number of those clauses demonstrates both the

breadth of the power and the goal of consolidating that

power in the federal government. The multiple

clauses restricting state power over military matters

confirm the point. Those restrictions emphasize that

permitting States to make decisions relating to war

would interfere with the federal war powers. Thus, as

with Article III’s provisions abrogating state

immunity in suits by the United States or other

States, the abrogation of state sovereignty in matters

relating to war is “inherent in the constitutional plan.”

Hyatt, 139 S. Ct. at 1495 (quoting Monaco, 292 U.S. at

328). It is also “essential to the peace of the Union.”

Id. (quoting Monaco, 292 U.S. at 328). And as with

the Bankruptcy Clause, abrogation of the States’

sovereignty in matters of war was necessary to

“harmoniz[e]” military action across the States. Katz,

546 U.S. at 362.

ii. History shows the States have no

sovereign immunity in matters of war.

The States never had sovereign immunity in warrelated matters because they surrendered their

sovereign war powers under the Articles of

Confederation.

See, e.g., Charles Lofgren, War

18

Powers, Treaties, and the Constitution, in THE

FRAMING AND RATIFICATION OF THE CONSTITUTION 242,

242 (Leonard Levy & Dennis Mahoney, eds., 1987)

(observing that the Articles “granted Congress a nearmonopoly of overtly war-related and foreign relations

powers”).

Similar to the Constitution, the Articles vested

war powers directly in the national government. They

gave Congress the “sole and exclusive right and

power” to determine peace and war and conduct other

foreign affairs. ARTICLES OF CONFEDERATION art. 9.

They prevented the States from keeping vessels of war

or bodies of forces in peacetime. Id. art. 6. Although

the States were required to “keep up a well regulated

and disciplined militia,” id., that militia was largely

for the benefit of the nation as a whole. The States

were prohibited from engaging in war “without the

consent of the United States in Congress assembled,”

though States could protect themselves if invaded or

the danger of invasion was imminent. Id. This

arrangement, much like the structure of the

Constitution, shows that the States had no

sovereignty in war-related matters.

The balance of war powers between the national

and state governments under the Articles of

Confederation is striking. Before the Articles were

adopted, the newly independent States had their

greatest claims to sovereignty. See, e.g., Hyatt, 139 S.

Ct. at 1493 (“After independence, the States

19

considered themselves fully sovereign nations. . . .

with ‘full Power to levy War, conclude Peace, . . . and

to do all other Acts and Things which Independent

States may of right do.’” (quoting Declaration of

Independence ¶ 4)). But by ratifying the Articles, the

States agreed the national government would control

matters related to war, thereby relinquishing

whatever sovereignty they may have had in that area.

See United States v. Curtiss-Wright Export Corp., 299

U.S. 304, 316 (1936) (“[T]he powers of external

sovereignty passed from the Crown not to the colonies

severally, but to the colonies in their collective and

corporate capacity.”).

Even if the States retained any residual

sovereignty

over

war-related

matters,

they

relinquished that sovereignty by ratifying the

Constitution. As explained in the preceding part, the

text and structure of the Constitution establish that

the federal government has sole sovereignty over

military matters.

The Framers had many reasons to consolidate

control over the war powers in this way. As the

Framers recognized, leaving the States with any

authority over war-related matters would directly

interfere with the federal government’s war powers

and imperil the nation. See Jeffrey M. Hirsch, War

Powers Abrogation, 89 GEO. WASH. L. REV.

(forthcoming 2021) (manuscript at 48–53, 61–84)

(reviewing Constitutional Convention and State

20

Ratification debates), https://ssrn.com/abstract=3557

653.

For example, making war powers solely a federal

power prevented the States from warring against the

national government or other States and from

undermining the federal government’s relationships

with other countries. See, e.g., THE FEDERALIST NO. 3

(John Jay) (explaining causes of war that are more

easily avoided under “one national government than

[under] thirteen separate States or by three or four

distinct confederacies”); THE FEDERALIST NO. 6

(Alexander Hamilton) (stating that “dissensions

between the States” could lead to “a state of

disunion”).

Likewise, centralizing war powers

prevented the inefficient expenditure of United

States’ resources in wars that do not serve the nation’s

interests as a whole. Placing the war powers solely

with the national government reduced these risks.

See THE FEDERALIST NO. 3 (John Jay) (explaining that

States may be “excite[d] [into] war with [bordering]

nations; and nothing can so effectually obviate that

danger as a national government, whose wisdom and

prudence will not be diminished by the passions which

actuate the parties immediately interested”).

Conferring military powers solely on the federal

government also ensured that the United States

would operate as a single body in war instead of as an

alliance of confederates. The Framers repeatedly

stressed the critical importance of avoiding the

21

inefficiencies of a confederacy of States with different

interests to secure the safety of the nation. See, e.g.,

THE FEDERALIST NO. 23 (Alexander Hamilton) (“The

circumstances that endanger the safety of nations are

infinite, and for this reason no constitutional shackles

can wisely be imposed on the power to which the care

of it is committed . . . . [T]here can be no limitation of

that authority . . . in any matter essential to the

formation, direction, or support of the National

Forces.”); THE FEDERALIST NO. 41 (James Madison)

(“America united, with a handful of troops, or without

a single solider, exhibits a more forbidding posture to

foreign ambition than America disunited, with a

hundred thousand veterans ready for combat.”); 1

Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE

CONVENTIONS OF THE ADOPTION OF THE FEDERAL

CONSTITUTION 419 (1827) (Hamilton explaining the

weaknesses of foreign confederations); id. at 424

(Madison same); 2 id. at 214 (Robert Livingston

same); id. at 187–88 (Oliver Ellsworth same).

The Constitutional Convention proceedings

confirm that the Constitution divests the States of

sovereignty in matters of war. Most of the federal war

powers and explicit restrictions on States were

already included in early drafts of the Constitution.

See 1 id. at 226, 228, 229. Later drafts further

restricted state power in military matters. For

example, a provision was inserted that confirmed the

States’ authority to appoint officers and train the

militia, but also restricted that power by requiring it

22

to be exercised “according to the discipline prescribed

by Congress.” Id. at 254. The final version of the

Constitution thus added congressional control over

the state militias, further centralizing the federal

government’s war powers to the exclusion of the

States.

The debates of the Convention reinforce the

conclusion that the States would have little to no role

in war-related matters. Hamilton noted that the “sole

direction of all military operations” should be placed

in the hands of the federal government. Id. at 423. In

his view, it was the exclusive object of the federal

government to provide protection against foreign

invasion; maintain military bodies; and procure

alliances and treaties with foreign nations. 2 id. at

350. By contrast, Hamilton explained, the objects of

the state governments are “merely civil and domestic.”

Id.; cf. also Curtiss-Wright, 299 U.S. at 316 (noting

that the States possessed sovereign powers over

“internal affairs” but not “international powers”).

Others echoed this understanding. For example,

Robert Livingston explained that the States were illsuited to defend the nation and should not claim war

powers from the government. 2 Elliot, supra, at 386;

see also, e.g., 1 id. at 426 (Rufus King: “None of the

states, individually or collectively, but in Congress,

have the rights or peace or war.”); id. at 427 (James

Wilson: “The power of war, peace, alliances, and trade,

are declared to be vested in Congress.”).

23

Even opponents of the Constitution understood

that there was no role for the States in matters related

to war. In ratification debates, John Williams argued

that the power over the militia is “wrested from [the

States’] hands by [the] Constitution, and bestowed

upon the general government.” 2 id. at 338. Likewise,

Patrick Henry lamented that the Constitution places

the militia “into the hands of Congress” and argued

that the States were powerless to protect themselves

if Congress failed to discipline or arm the militia,

because that power is “exclusively given to Congress.”

3 id. at 48.

Thus, there was broad agreement that the

Constitution stripped States of all sovereignty with

respect to war and conferred all war power solely to

the federal government. See Hirsch, supra, at 116

(“[T]he history of the War Powers Clauses reveals that

one of the central goals of the plan of the Convention

was for the nation’s war powers to lie with a

centralized, federal government.”). This was done

intentionally to ensure a unitary source of authority

on all matters of war. Cf. Katz, 546 U.S. at 369

(relying on “general agreement” among the Founders

“on the importance of authorizing a uniform federal

response to the problems presented in cases

[addressing the effects of debtor’s discharges]” to hold

that the Bankruptcy Clause abrogates state

immunity).

24

iii. Precedent and practice also show the

States have no sovereign immunity in

military matters.

Although this Court has never considered whether

the States surrendered sovereign immunity related to

war powers in the plan of the Convention, many

opinions of this Court support the conclusion that

States have no sovereign immunity in matters related

to war. For example, in Chisholm v. Georgia, Chief

Justice Jay explained that “the power of declaring

war, making peace, raising and supporting armies for

public defence . . . are lodged in Congress; and are a

most essential abridgement of State sovereignty.” 2

U.S. 419, 468 (1793) (emphasis added).

Similarly, in Tarble’s Case, this Court held that

state courts lack the power to issue writs of habeas

corpus to discharge individuals held by the U.S.

military. 80 U.S. 397, 412 (1871). Noting the federal

government’s “plenary and exclusive” control over

matters of war, this Court proclaimed that allowing

state officials to interfere with this power would

“greatly impair[] the efficiency, if it did not utterly

destroy,” the military. Id. at 408.

More recently, this Court explained in Hyatt that

the Constitution “divests the States of the traditional

diplomatic and military tools that foreign sovereigns

possess,” including “the independent power . . . to

wage war.” 139 S. Ct. at 1497. The States accordingly

25

lack significant aspects of sovereignty that would

ordinarily belong to foreign nations. Id.

Along with the structure of the Constitution and

the history of its drafting and ratification, practice

and precedent thus support the view that the States

have no sovereign immunity in matters of war. The

States agreed to surrender that immunity in the plan

of the Convention, and so have no sovereign immunity

defense against private actions brought under

legislation enacted pursuant to Congress’s war

powers. See Hirsch, supra, at 84 (“[T]he plan of the

Convention leads to only one reasonable conclusion:

states do not have the power to assert immunity

against private rights of action created pursuant to

the federal government’s war powers.”). Even if the

federal statute contains no provision abrogating the

States’ immunity in this area, the war power

provisions themselves abrogate that immunity. Cf.

Allen, 140 S. Ct. at 1003 (noting that the Constitution

“itself” can abrogate).4

4

Justice Thomas’s concern in Katz that the Bankruptcy Clause

implicates only the States’ authority to enact legislation is not

present here. See Katz, 546 U.S. at 384 (Thomas, J., dissenting).

The war powers allow Congress to intrude upon state sovereignty

in ways that do not simply prevent the States from enacting

legislation. They prevent the States from interfering with the

federal government’s war powers even in the state judiciary. See

Tarble’s Case, 80 U.S. at 412. Moreover, the States are permitted

to keep militias only under the direct control of Congress.

26

B. Even if the States retained sovereign

immunity in matters of war, Congress

may validly abrogate that immunity

when it enacts legislation pursuant to its

war powers.

Even if the War Powers Clauses in Article I do not

by their own force strip the States of sovereign

immunity, those clauses empower Congress to

abrogate state sovereign immunity through

legislation. The provisions relating to war powers

confer broad authority on the federal government to

operate, regulate, and control the military. At the

same time, other provisions of the Constitution

significantly restrict the powers of the States,

preventing state interference with the federal

operation of the military.

Just like Section 5 of the Fourteenth Amendment,

these provisions together establish that the federal

government has the power to abrogate state sovereign

immunity when necessary to regulate and control the

military.5 The expanse of the federal war power is

Accordingly, the war powers implicate many attributes of

sovereignty, including immunity against suit.

5

Lower courts have disagreed whether the war powers provide a

basis to abrogate state sovereign immunity. Some have held that

the war powers do provide a basis for abrogation. See, e.g.,

Reopell v. Massachusetts, 936 F.2d 12, 16 (1st. Cir. 1991) (holding

that Congress may abrogate state sovereign immunity under its

war powers); Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609,

616 (1st Cir. 1996) (same). Others, including the Texas Court of

27

apparent from the numerous provisions in Article I

conferring war powers on Congress. It is also reflected

in Article II’s provisions establishing the President as

Commander in Chief with the power to call up state

militias. At the same time, as noted earlier, the

Constitution significantly restricts the State’s war

powers.

Moreover, even in those areas in which the

Constitution affords the States some small role in

military matters, it confers ultimate control on the

federal government. See, e.g., U.S. CONST. art. I, § 8,

cl. 16; id. art. II, § 2. Thus, the federal government’s

overarching control of all things related to war and the

military, not just Congress’s authority to regulate

war-related matters, establishes Congress’s authority

to abrogate state sovereign immunity pursuant to its

war powers.

In this way, the powers conferred under the warrelated provisions are significantly different from the

powers conferred by the Commerce Clauses or the

Appeals below, have rejected that conclusion, reasoning that

sovereign immunity “cannot be abrogated by Article I” to hold

that the war powers do not abrogate state sovereign immunity.

Pet’r’s App. 11a–12a; see also Risner v. Ohio Dep’t of Rehab. &

Corr., 577 F. Supp. 2d 953, 964 (N.D. Ohio 2008) (“Article I

cannot be used to circumvent the constitutional limitations

placed upon federal jurisdiction”); Velasquez v. Frapwell, 160

F.3d 389, 395 (7th Cir. 1998) (similar). This Court rejected that

reasoning by holding that the Bankruptcy Clause strips States of

sovereign immunity. See Katz, 546 U.S. at 359.

28

Intellectual Property Clause. The Commerce Clauses

and the Intellectual Property Clause simply authorize

Congress to enact legislation in those areas, and

Congress’s power in those areas is not exclusive. By

contrast, the war powers, together with the

limitations on States in Article I, section 10, confer

exclusive authority on Congress over matters relating

to war, and they empower the federal government to

regulate and take control of state militias when it

deems necessary. Thus, much like the Fourteenth

Amendment, which “fundamentally altered the

balance of state and federal power,” Allen, 140 S. Ct.

at 1003, the war power provisions significantly depart

from the typical arrangement of shared power in the

Constitution. Instead of dividing authority over warrelated matters between the States and federal

government, they allocate all power in that area to the

federal government.

In sum, contrary to the lower court’s decision,

Congress validly abrogated state sovereign immunity

by exercising its war powers to enact USERRA’s

provisions explicitly authorizing veterans to bring

private actions against States who discriminate

against those veterans.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

29

Respectfully submitted,

F. ANDREW HESSICK RICHARD A. SIMPSON*

160 RIDGE ROAD

COUNSEL OF RECORD

CHAPEL HILL, NC 27599 WILEY REIN LLP

(919) 962-4332

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7314

rsimpson@wiley.law

DECEMBER 23, 2020