Torres v. Texas Dep’t of Public Safety

LII note: the oral arguments in Torres v. Texas Dep’t of Public Safety are now available from Oyez. The U.S. Supreme Court has now decided Torres v. Texas Dep’t of Public Safety .


Does Congress have the power to grant suits against nonconsenting states under its constitutional war powers?

Oral argument: 
March 29, 2022

This case asks the Supreme Court to consider whether an act of Congress which allows veterans to sue states in their state court violates Article I of the Constitution. Leroy Torres, a veteran who served in Iraq, filed an employment discrimination case in Texas state court against his former state employer after it failed to provide relief for military injuries. The Texas courts found that Torres could not draw the state into a lawsuit using Texas courts. Torres argues that the text, history, and precedent of the Constitution’s war powers require Texas to participate in the suit. The state employer counters that if a private party were to subject Texas to its own judicial system, it would violate principles of sovereign immunity. This case has important implications for injured veterans’ ability to obtain relief from unlawful discrimination and can potentially radically reshape the balance of power between federal and state courts in deciding war powers questions.

Questions as Framed for the Court by the Parties 

Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.


Leroy Torres joined the United States Army Reserve (“Reserve”) in 1989. Petitioner’s Appendix at 2a (opinion of Texas Court of Appeals). In 1998, the Texas Department of Public Safety (“DPS”) hired him as a state trooper. Id. In 2007, the Reserve deployed Torres to Iraq, where he suffered lung damage after being exposed to fumes from “burn pits” used to dispose of waste on military installations. Id. at 74a (complaint of Leroy Torres); Brief for Petitioner Leroy Torres at 15; Brief for Respondent Texas Department of Public Safety at 5–6. In 2008, after receiving an honorable discharge from the Reserve, Torres asked DPS to re-employ him. Petitioner’s Appendix at 2a. Torres requested that DPS assign him to a new post to accommodate his lung injury. Id. DPS offered to rehire Torres but did not grant his request for a different assignment. Id. Instead of accepting DPS’s offer to resume work as a state trooper, Torres resigned. Id.

In 2017, Torres sued DPS in Texas state court under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), a federal statute that prohibits employment discrimination on the basis of a person’s military service. Id. at 2a. USERRA authorizes actions in state courts against the states in their capacity as employers. Id. at 5a. Torres alleged that DPS violated USERRA by declining to grant his request for a new assignment. Id. at 77a (complaint of Leroy Torres). Torres sought damages for lost wages and benefits. Id. at 78a. DPS objected to jurisdiction by pleading sovereign immunity. Id. at 3a (opinion of Texas Court of Appeals). After the trial court rejected DPS’s objection to jurisdiction, the Department appealed to the Texas Court of Appeals. Id. The Court of Appeals found in favor of DPS, id. at 19a–20a, concluding that, under the Supreme Court’s decisions in Seminole Tribe of Florida v. Florida and Alden v. Maine, USERRA’s purported abrogation of state sovereign immunity was invalid, id. at 15a. The Supreme Court of Texas declined review on June 5, 2020, id. at 33a (order list of Supreme Court of Texas).

Torres appealed the Texas Supreme Court decision, and on December 15, 2021, the United States Supreme Court granted Torres’ petition for certiorari. Brief for Petitioner Leroy Torres at 1.



Petitioner Torres argues that Texas cannot assert immunity in war powers suits because states implicitly surrendered this immunity upon entering the constitutional compact, thus signaling their consent to such suits. Brief for Petitioner at 21. Torres posits that the Constitution’s Framers concentrated wartime decision-making authority within the federal government because the less-centralized framework of the Articles of Confederation impeded the nation’s ability to wage war effectively. Id. at 21. Torres highlights Section 8 in Article I (“Art. I-8”) of the Constitution, which grants Congress broad powers related to the regulation of military forces. Id. at 22. However, Torres contends that Art. I-8 denies states an expansive role to regulate militias. Id. Torres further points to Article I, Section 10, which divests states of certain war-related powers. Id. Torres concludes that these clauses collectively suggest war-making powers are distinguishable from other constitutional provisions because they inherently require states to forfeit sovereignty to federal authorities in this sphere. Id. at 23–25. Indeed, Torres concludes that if states could exercise authority over war-making, the country could not exist, thus disfavoring a state-based recognition of sovereign immunity. Id. at 26.

Torres argues that reversal is necessary to avoid upending the centuries-long practice of allowing private-party war powers suits against states. Brief for Petitioner at 28–30. Torres maintains that the Framers wanted Congress to retain unimpeded war powers in times of both war and peace because these powers are vital to the country’s success. Id. at 26–27. Torres asserts that the Framers’ original intent requires courts to permit private-party suits against states on foreign relations issues. Id. at 27. Torres claims evidence of this intent is found in the Framers’ discussions surrounding the Treaty of Paris, which allowed British creditors to collect on war debts arising from the American Revolution. Id. at 27–28. Torres notes that many states passed similar laws granting states the power to expropriate insolvent British creditors, an issue which necessarily implicated lawsuits against states. Id. at 28. Torres argues this history generated a longstanding presumption, which persists to the present, that Article III allows private-party war powers suits against states. Id. at 28–30.

Respondent DPS counters that principles of federalism foreclose Torres’s textual arguments because congressional powers forcing states to consent to private-party suits breach the Constitution’s fundamental structure, thus favoring state sovereign immunity. Brief for Respondent at 30–31. Accordingly, DPS maintains that states should not be strong-armed by private parties into their own courtroom. Id. DPS acknowledges that the Constitution divests the states of certain war powers. Id. at 32. But DPS also claims this limited divestiture does not allow Congress to then expose states to private-party suits via the tangential relationship between those suits and congressional war powers. Id. Finally, DPS asserts that USERRA’s usurpation of state sovereignty does violence to a plain reading of the Constitution, which exempts the federal government from similar private-party suits while simultaneously authorizing relief from states’ treasuries. Id. at 31–32.

DPS contests the idea that states implicitly surrendered their immunity by asserting that the Framers’ careful deliberation of each clause of Article I suggests that states only ceded specific and textually defined powers to the federal government. Brief for Respondent at 13. DPS looks to the war-making clauses’ ratification debates to support this argument. Id. DPS claims that the Army Clause debates focused on the federal government’s ability to raise an army during peacetime, not whether states relinquished immunity from private-party suits. Id. at 14–15. Similarly, DPS asserts that the Navy Clause debates never discussed whether states should waive immunity to suits arising under that Clause. Id. at 15–16. DPS further notes that the Militia Clauses demonstrate a balanced power distribution between the state and federal governments. Id. at 16–18. Finally, DPS points to the meticulous drafting around Congress’s power to “declare war.” Id. at 18–19. DPS argues that, taken together, this history is incompatible with the idea that states implicitly surrendered immunity from war powers suits. Id. at 18–19.


Torres argues that history furnishes instances in which the invocation of war powers caused vast encroachments on state sovereignty, thus confirming that states did not retain immunity in suits arising under the war powers. Brief for Petitioner at 31. Torres emphasizes that the war powers are special because they abridge other constitutional protections, such as the freedom of speech. Id. at 31–32. Torres exemplifies the breadth of this ability with Congress’s establishment of an entire provisional state court system in Louisiana in the aftermath of the Civil War. Id. Torres further argues that states presumptively waived immunity by continuously failing to assert immunity in cases where Congress invoked war powers to toll state statutes of limitations. Id. at 32–34. Moreover, Torres notes that states never claimed immunity from habeas corpus petitions brought by federal officers, despite the fact these petitions came from an explicit war measure conferred by Congress and against the states. Id. at 34–36. Torres finally notes that Congress rejected expansive immunity in favor of narrower language, targeted towards limiting Article III’s reach, when Congress drafted the Eleventh Amendment, therefore signaling the allowance of private-party suits in state courts. Id. at 18.

DPS asserts that neither early congressional practice nor Torres’s historical examples indicate that states consented to private-party suits from servicemembers. Brief for Respondent at 25. As support, DPS notes the contrast between Congress's near-immediate passage of laws to harmonize federal and state military forces versus the more-than-century-long gap between the Founding and Congress’s passage of servicemember discrimination protections, suggesting that the Framers did not contemplate the latter. Id. at 25–26. DPS disputes Torres’s emphasis on federal power over Reconstruction-era Louisiana. Id. at 26–27. DPS asserts that comparing peacetime authorization of private-party suits to a military-occupied state “is like comparing apples to ammunition.” Id. DPS further maintains that a state’s refusal to assert immunity in one case does not surrender that immunity in all future cases. Id. at 27–28. DPS adds that the Court has previously flagged constitutional doubt regarding federal tolling of state statutes of limitations. Id. at 28. Specifically in the Eleventh Amendment context, DPS claims that since treaty-based suits against states were unheard of by the Framers, the Constitution cannot possibly contemplate states’ rights in such suits. Id. at 21. Finally, DPS claims that Torres’s habeas argument is irrelevant because habeas cases are historically understood not to implicate questions of sovereign immunity by their very nature. Id. at 28–30.


Torres maintains that because this case does not implicate the principle of abrogation, the Court should hence analyze the controversy using precedents about states ceding sovereign immunity. Brief for Petitioner at 37–39. Torres compares his case to Cent. Va. Cmty. Coll. v. Katz (“Katz”), which established states’ ceding of sovereign immunity in bankruptcy proceedings. Id. at 37–38. As with bankruptcy, Torres emphasizes that nationwide uniformity is a main principle behind the war powers. Id. Quoting Katz, Torres assures that the Constitution limits states’ cession of immunity because suits against states are “ancillary to and in furtherance of” the war powers. Id. at 38. Torres also compares his case to PennEast Pipeline Co., LLC v. New Jersey (“PennEast”), which established states’ ceding of sovereign immunity in eminent domain proceedings. Id. at 38–39. Torres argues that, like state assertion over eminent domain, the war powers would be similarly hamstrung if states could interfere with them. Id. Finally, Torres argues that even if the Court evaluates his controversy under the unfavorable precedent from Seminole Tribe of Fla. v. Florida (“Seminole Tribe”), it should still reverse because Seminole Tribe did not adequately contemplate the unique nature of the war powers, and is thus inapplicable in this context. Id. at 40.

DPS counters that a correct reading of Seminole Tribe carves no special exceptions for the war powers and that even if the war powers avoid Seminole Tribe’s analysis, Katz and PennEast also support affirming the judgment, thus supporting its position. Brief for Respondent at 33, 36. DPS argues that the key connection between Katz and PennEast is the judicial control over property, therefore suggesting that the characteristics of the war powers are not the correct traits to warrant states’ ceding of sovereign immunity. Id. at 36. DPS insists that for both bankruptcy and eminent domain questions, the Constitution contemplated judicially-managed claim resolution. Id. at 38, 40. DPS further notes that bankruptcy and eminent domain actions are primarily limited to the property that supports jurisdiction, and that both actions adjudicate rights justiciable on the international stage. Id. at 37–38, 39–40. DPS thus concludes that since the war powers do not implicate sovereign immunity in these ways, Katz and PennEast are irrelevant to this case, further supporting recognition of state-based immunity. Id. at 41.



The Reserve Organization of America (“ROA”), in support of Torres, argues that by protecting states from liability from employment discrimination suits brought by service members, the Court thereby impairs the military’s ability to recruit and retain essential military personnel. Brief of Amicus Curiae Reserve Organization of America, in Support of Petitioner at 14–18. The ROA observes that about one half of all members of the United States Armed Services are reservists ,and that nearly one million reservists have actively served since September 11, 2001. Id. at 14–15. The ROA argues that the country’s combat readiness will suffer as the result of fewer people then choosing to join or remain in the military’s reserve forces should states remain immune from suits by reservists in state courts. Id. at 21.

The Separation of Powers Clinic at Antonin Scalia Law School (“Scalia Clinic”), in support of DPS, counters that, because the United States has ample alternative means of ensuring obedience to USERRA, recognizing state immunity will not deprive service members of legal protection, and by implication, will not affect readiness. Brief of Amicus Curiae Separation of Powers Clinic at Antonin Scalia Law School, in Support of Respondent at 24–25. The Scalia Clinic notes that suits by the federal government, rather than by service members themselves, are more likely to deter states from employment discrimination. Id. at 24. In addition, the Scalia Clinic contends that even if courts barred suits against the states under USERRA-based sovereign immunity claims, service members would still remain able to bring actions under Ex parte Young. Id. at 25. The Scalia Clinic adds that Young allows litigants to enjoin a state officer from unlawful conduct, to recover damages for past unlawful action under 42 U.S.C. § 1983, and to seek other remedies available under state law. Id. The Scalia Clinic concludes that the adverse effects of recognizing state sovereign immunity would not be severe since state sovereign immunity does not extend to municipalities and cities. Id. at 25.


The National Veterans Legal Services Program (“NVLSP”), in support of Torres, argues that striking down USERRA’s provision for private actions against the states frustrates Congress’s attempt to satisfy the country’s moral debt to discriminated-against veterans. Brief of Amici Curiae National Veterans Legal Services Program et al., in Support of Petitioner at 18–19. NVLSP argues that aggrieved service members so seldomly invoke USERRA’s provision that it is functionally “useless.” Id. Accordingly, NVLSP argues that the private right of action made available under USERRA is essential to enforce the law’s anti-discrimination provisions. Id. NVLSP therefore insists that to hold the states immune to suits by service members under USERRA would produce “an unconscionable result” by depriving veterans of a remedy for discrimination. Id. at 31.

The Scalia Clinic, in support of DPS, argues that USERRA’s anti-discrimination provisions remain effective even without a formal private right of action. Brief of Amicus Curiae Separation of Powers Clinic at Antonin Scalia Law School, in Support of Respondent at 24–25. The Scalia clinic again contends lawsuits brought by the United States on behalf of discriminated-against service members can be a more effective USERRA-enforcement vehicle than suits brought by individual service members and underscores that service members can find adequate relief through private suits under 42 U.S.C. § 1983 and the doctrine of Ex parte Young. Id. Thus, the Scalia Clinic concludes that alternative legal remedies affirm the anti-discrimination intent of USERRA’s statute, thus preserving the private right of action for individual plaintiffs. Id.


Written by:

Bruno Babij

Jack Delano

Edited by:

Paul Ingrassia


The authors would like to thank Professor Michael C. Dorf for his insights into this case.

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