Monday, October 16, 2017
As I mentioned recently, the Supreme Court had requested the Solicitor General's view on whether the abrogation of state sovereign immunity under USERRA was valid. The SG's office just submitted its brief, recommending the denial of cert. There are reasonable grounds to argue against cert., most notably the lack of a circuit split, but the SG's brief was, to put in bluntly, lazy. It didn't make any meaningful attempt to address the constitutional or historical reasons why abrogation under the war power should be treated especially carefully; indeed, it went so far as to suggest that the war powers are equivalent to other Article I powers when it come to the balance of federal and state power, which I find disturbing ("But the central problem with petitioner’s argument [that Congress' war powers is exclusive and important] is that all Article I powers could be described as exclusive and important to at least some degree.").
Again, if you're curious about this issue, I've got an older article that delves into it the question in detail. Needless to say, I conclude that the war powers is very much not like other Article I powers when it comes to federal authority supplanting state authority.