Citizens may sue their states under USERRA

The blockbuster cases that the Supreme Court recently handed down on abortion, guns, and religion left this particular case in the dust. The Court holds that the states may be sued for discriminating against military servicemen and veterans. 

The case is Torres v. Texas Dept. of Public Safety, decided on June 29. When the Constitution was enacted in 1787, the Eleventh Amendment said that states cannot be sued by their own citizens. There are exceptions to that rule, such as when a state consents to suit, or Congress enacts laws that pierces that immunity. The statute here, Uniformed Services Employment and Reemployment Rights Act (USERRA) gives returning veterans the right to reclaim their prior jobs with their state employers and generally allows servicemembers to sue their private employers who discriminate against them. 

Plaintiff, upon returning home as a state trooper after enduring hazardous conditions in the Army Reserves, was denied an accommodation to a different position. He sued Texas under USERRA. Texas moved to dismiss the case, claiming plaintiff cannot sue the state over this under the Eleventh Amendment. 

This issue is not as easy as you think. Eleventh Amendment jurisprudence is complex: citizens cannot invoke portions of the Americans with Disabilities Act against the states. But the Family and Medical Leave Act can predicate a lawsuit against the states. 

Writing for the 5-4 majority, Justice Breyer says the Eleventh Amendment's sovereign immunity allows suits against the states "if they agreed their sovereignty would yield as part of the 'plan of the Convention,' that is, if 'the structure of the original Constitution itself 'reflects a waiver of States' sovereign immunity." This concept is new to me, but this appears to be settled Supreme Court law.

Under this principle, Torres may sue Texas under "Congress' power to build and maintain the Armed Forces." The states delegated to the federal government all responsibilities for maintaining a national army, and states may not engage in war. "We . . . hold that as part of the plan of the Convention, the States waived their immunity under Congress' Article I power 'to raise and support Armies' and 'provide and maintain an Navy.'" T