Read on Twitter
This post has the longer version, but here's a shorter thread on an amicus brief that a group affiliated with UNC Law just filed with the Supreme Court supporting a petition for cert. by the Plaintiff in Torres v. Texas Department of Public Safety. /1
https://www.supremecourt.gov/DocketPDF/20/20-603/164648/20201223142439508_20-603_Amicus%20Brief.pdf https://twitter.com/WorkProfBlog/status/1342158430572695552
https://www.supremecourt.gov/DocketPDF/20/20-603/164648/20201223142439508_20-603_Amicus%20Brief.pdf https://twitter.com/WorkProfBlog/status/1342158430572695552
The question whether state employers have sovereign immunity in the face of congressional war powers legislation like USERRA, which prohibits employment discrimination based on military service and provides leave for active duty or training. /2
Given the huge number of active and reserve servicemembers, this is an important statute even in normal times. But it's especially so now in a year that saw the greatest mobilization of National Guard troops since Wold War II. /3 https://www.washingtonpost.com/national-security/2020/12/24/national-guard-response/
Le Roy Torres was a Texas State Trooper who was called into active duty in Iraq. While there, he continually breathed toxic ash that made him so ill that he was unable to perform his usual trooper duties when he came home. /4
According to Torres’ claim, his employer refussed to accommodate him, instead forcing him to resign. Torres sued under USERRA, but his employer has argued that courts can’t even hear the claim because of state sovereign immunity. /5 https://www.mcclatchydc.com/news/nation-world/national/national-security/article247506295.html
Texas courts, like several other states, have agreed with this defense. But as I’ve argued in my research, which this and an earlier amicus draws on, these courts are wrong. I actually first wrote on this topic when I was on the entry-level market. /6
https://ssrn.com/abstract=479102
https://ssrn.com/abstract=479102
I argued then that despite dicta saying that Article I can’t ever abrogate state immunity, the Court’s historical analysis leaves the door open for certain Article I abrogation. And if there are areas in which states lack immunity, no area has a stronger claim than war powers. /7
Indeed, subsequent to that article, the Court held in Katz that states lacked immunity when it comes to Article I’s Bankruptcy Clause. Which leads one to ask if the Bankruptcy Clause allows suits against states, then surely war powers does too. /8
I revisited this issue post-Katz in "War Powers Abrogation," forthcoming in the @GWLawReview, in which I thoroughly examined the history of the War Powers Clauses through the Confederation, the Constitutional Convention, and Ratification periods. /9
https://ssrn.com/abstract=3557653
https://ssrn.com/abstract=3557653
The article provides the details, but the story is crystal clear: the only reasonable reading of the “plan of the Convention” is that the Founders and states adopted the Constitution fully knowing and intending states NOT to have any sovereignty when it comes to war powers. /10
Instead, the Constitution was to ensure that the federal government was in charge of the nation’s security, free from state interference. No one during that period, even opponents, thought that states could interfere with the federal government’s war powers actions. /11
So far, state courts have failed to even address this history. Our hope is that the Supreme Court will take up the issue to correct that error. So stay tuned. /11
Finally, I want to thank my research assistant @Kemperpatton, the staff at @GWLawReview, and the several people who helped write the amicus: @regrossm, @AndyHessick, and Elizabeth Fisher & Rick Simpson from Wiley. /12
Also Torres’ counsel, including Brian Lawler (Pilot Law) and Andrew Tutt (Arnold and Porter). And, last but not least, thanks to Le Roy Torres, his wife, and the other veterans who are trying to simply get their day in court to exercise their rights under USERRA. /13
