Wednesday, June 29, 2022

Court Says States Structurally Waived Sovereign Immunity for Common Defense

The Supreme Court ruled today that States "structurally" waived their sovereign immunity from suits for money damages in cases under Congress's war powers, and that Congress can therefore authorize such suits against States, even in State courts.

The ruling means that a servicemember who returned with constrictive bronchitis can sue his State employer in State court for failing to accommodate his condition.

More broadly, it means that the Court has now recognized States' "structural" waiver of immunity in cases under the Bankruptcy Clause, under Congress's power of eminent domain, and (now) under Congress's war powers. ("Structural" waiver means that the States waived their sovereign immunity when they signed on to the Constitution in the first place, as part of the original Constitutional design. Congress can also abrogate State sovereign immunity by enacting legislation under its enforcement power under the Fourteenth Amendment; but that's a different thing.)

This is significant, because it gives structural waiver more teeth, and says that any categorical understanding of Alden v. Maine that Congress cannot authorize private-damage suits against States under its Article I powers is wrong. (Alden says that Congress can't abrogate State sovereign immunity using its Article I powers. Today's ruling says that Congress may, however, rely on structural waiver to authorize private-damage suits.)

The case, Torres v. Texas Department of Public Safety, tested the federal Uniformed Services Employment and Reemployment Rights Act of 1994, in particular, whether the Act validly authorized a servicemember's money-damages lawsuit against a State for failure to re-employ or accommodate the returned servicemember in their State job. Congress enacted the Act under its Article I powers "[t]o raise and support Armies" and "[t]o provide and maintain a Navy."

The Court said yes, it did. Justice Breyer wrote for the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh. The Court held that the text, history, and precedent of Congress's war powers all said that the States structurally waived their sovereign immunity when they joined the Union, and that Congress could (and did) therefore validly authorize suits against States for money damages for violations of the Act.

Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett. He argued that the Court was wrong on each point (text, history, precedent), and that Alden v. Maine "should have squarely foreclosed [the Court's] holding."

https://lawprofessors.typepad.com/conlaw/2022/06/court-says-states-structurally-waived-sovereign-immunity-for-common-defense.html

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