Thursday, May 26, 2022

Supreme Court examines war powers in reservationist’s discrimination case

At issue was Congress’s power to encourage Americans to volunteer for the military by protecting their rights to return to their jobs after completing their service. The Uniformed Services Employment and Reemployment Rights Act (USERRA), passed in the wake of the Persian Gulf War, makes it illegal for employers to discriminate on the basis of military service.

But Le Roy Torres was a Texas state trooper. And courts in Texas, as others have across the country, said Congress cannot constitutionally authorize lawsuits against states, which are generally exempt from litigation monetary damages because of sovereign immunity seeking.

The court has to decide whether that general protection was one the states gave up, as the federal government’s war powers trump concerns over federalism.

“The Constitution gave Congress the power to raise and support armies, and the reason for that grant was to ensure the survival of the nation,” said Washington lawyer Andrew T. Tutt, representing Torres. “The Constitution provided Congress with the tools necessary to fulfill its preeminent national defense function, and the ability to authorize lawsuits, including suits against the states themselves, are among those vital tools.”

Some justices said Tutt was no doubt right about the first part, but they were not so sure about the second.

“There’s no dispute that the states could not engage in diplomacy or exercise any kind of war-making authority,” said Justice Amy Coney Barrett. “The question is whether they relinquished their protection from private discrimination suits, which is a quite different thing.”

Justice Samuel A. Alito Jr. and Neil M. Gorsuch also wondered just how far the power to raise armies and conduct wars extended.

“The broader you create a war power — and you’re extending it very broadly here — the greater the impact is for federalism,” Gorsuch told Justice Department lawyer Christopher G. Michel, who was defending the law.

Michel agreed but said Congress’s intent in passing the job protections was to entice and encourage reservists and National Guard members, upon whom the military relies heavily.

“I think that with respect to raising and supporting armies, the power of national survival, the federalism principles really do apply differently,” Michel said, adding that “it would matter a great deal in the real world if it was harder for the United States to recruit guardsmen and reserveists for the military.”

Texas Solicitor General Judd E. Stone II said no one was disputing Congress’s interest.

“Sovereign immunity never limits the ends that Congress may pursue, only the means that Congress may use in achieving them,” Stone said. “Neither precedent nor history show that the states authorized Congress to use the means of subjecting states to private damages actions by delegating the ends of raising an army to Congress.”

Justice Stephen G. Breyer brought up the musical “Hamilton” as a way of illustrating that the founders “were terribly upset at the way the states were behaving in respect to the Continental Army and thought that was causing the United States to basically lose almost , he said.

In the play, “George the Third says: They’ll be back. Wait and see. They’ll come crawling back to me,” Breyer said. “And that was in the framers’ mind, though not the music.”

Justice Sonia Sotomayor thought of another war. “Really the Vietnam War is what made this statute necessary because it is the first time that we see a state potentially taking action that’s going to directly affect the military’s power,” she said.

Justice Brett M. Kavanaugh worried about the future and restricting Congress too much. He noted that Barrett had mentioned the uncertainly regarding the Russian invasion of Ukraine. “We have to be thinking about the next 50 years,” Kavanaugh said. “We don’t know what’s going to be happening over the next 50 years. We don’t know what’s going to be happening over the next 50 days in terms of national security and personnel.”

In the debate over constitutional issues, there was little discussion of Torres.

He was a Texas state trooper when he was called for service in Iraq in 2007. Torres suffered lung damage from burn pits during his service, his petition to the Supreme Court said: “These huge open-air pits smoldered 24 hours a day on many military bases, spouting thick, black smoke as they burned everything from trash, to ammunition, to medicine, to human waste.”

Upon his return, he could no longer perform the duties of a trooper and asked for an accommodation. He and the Texas Department of Public Safety disagree over whether that was offered.

But Torres resigned and later sued for $5 million under the federal law. In the meantime, he and his wife, Rosie Lopez-Torres, have started the organization Burn Pits 360 to advocate for service members injured from toxic exposure.

If Torres “had been a member of the local sheriff’s department or a US marshal or worked for any other employer, he would have been able to sue to vindicate his rights,” his lawyer Tutt told the court. “But because he worked for Texas, he had no cause of action. The war powers … do not count that result. It’s not right.”

The case is Torres v. Texas Department of Public Safety,

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