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Justices Spar in Military Burn Pit Case, Ask Questions About Ukraine, the Vietnam War, and Even Quote Hamilton Lyrics

The nine Supreme Court justices pose for a group picture in 2021

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

The Supreme Court has a chance to allow members of the military to bring private lawsuits against states for discrimination on the basis of military service. The justices sparred during oral arguments Wednesday in the case of an Army reservist who says he was forced to resign from his job as a state trooper due to lung damage sustained from “burn pits” near his military base in Iraq. Stylized as Torres v. Texas Department of Public Safety, the case raises the legal question of whether Texas is immune from Torres’s lawsuit based on state sovereign immunity.

The lawsuit underlying SCOTUS legal challenge was filed by Le Roy Torres, a state trooper with the Texas Department of Public Safety (TDPS). Torres was deployed to Iraq as an Army reservist in 2007, and while overseas, he was exposed to toxic waste. The following year, after Torres was honorably discharged, he expected to resume his work with TDPS. Torres, however, had developed constrictive bronchiolitis, a debilitating respiratory condition that rendered him unable to continue working as a state trooper.

Torres resigned after TDPS denied his request for reassignment within the department. He has since co-founded the nonprofit organization Burn Pits 360 with his wife Rosie Lopez-Torres; the group advocates for service members injured by toxic burn pits.

Torres sued TDPS in state court for violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) — a 1994 federal law that prohibits employment discrimination on the basis of military service. TDPS moved to dismiss the case arguing that it has sovereign immunity from Torres’s lawsuit. The trial court sided with Torres, but the state appellate court reversed and ruled in favor 0f TDPS. The case is now before SCOTUS as the Supreme Court of Texas refused to take up the appeal.

At the heart of the the justices’s task is to decide a state-versus-federal question of who holds the power to allow Torres to sue Texas: Congress, pursuant to its war power, or only Texas itself if it consents.

Torres’s attorney Andrew Tutt framed the issue for the justices as one of the utmost importance to the health of the American military and guarantees put to reservists in particular. He explained that under the Constitution, war powers are “unique” grant of authority to Congress that are key to national security. He then argued that the modern military relies heavily on reservists who must be secure in the knowledge that their jobs will be safe following their military service.

Tutt said to the justices:

Rather than create a massive peacetime standing army, the United States instead created a reserve component – trained soldiers who would keep their civilian jobs, but would be ready to respond at a moment’s notice to undpredictable global threats. To convince soldiers to join that force and to ensure that soldiers in it would be willing to risk significant injury without hesitation, Congress promised these soldiers that they would not be discriminated against on the basis of their military service or service-connected injuries.

The conservative justices, however, appeared highly skeptical that USERRA could legally force private lawsuits on individual states solely based on Congress’s war power.

Justice Neil Gorsuch brought the discussion to constitutional interpretation, raising the point that there is no lengthy history of Congress using its war power to authorize private lawsuits like Torres’s against non-consenting states. Gorsuch asked, how to handle the fact that Congress authorized civil lawsuits against states was not until 1974.

“Not exactly the most contemporaneous evidence of the original meaning of the Constitution and the plan of the convention, is it counsel?” Gorsuch quipped.

Justice Samuel Alito pressed Tutt on the limits of his argument, suggesting that using the war power to overcome sovereign immunity might create untenable results. Alito reasoned that interstate highways were initially constructed as a national defense measure.

“Would that mean that Congress  authorize individuals  to sue states for failing to maintain highways properly or failing to patrol them properly?” he asked.

Justice Clarence Thomas participated in the hearing remotely following his recent release from the hospital and after a bout with what was described as an infection. He also pushed Tutt’s argument against sovereign immunity to the extreme. Justice Thomas remarked that Tutt put “a lot of weight” on Congress’s war power. Analogizing what that argument might mean for other constitutional clauses, Thomas, asked “Why couldn’t Congress do the same thing under another provision like the coinage clause?”

Justice Sonia Sotomayor stepped in to offer an alternative focus relevant to the facts at hand. Sotomayor referred to the Constitution’s militia clause, which grants sole power to “discipline” the military to the federal government, without any concurrent power left to the states.

“I assume that retaliation for service is a form of discipline to be employed,” Sotomayor commented. “I assume that your argument is that it is by its nature a power that requires a waiver of a state’s immunity because it’s giving over absolute control in a way that the others are not.”

The Biden administration also participated in the case as an amicus, supporting Torres as well as Congress’s right to authorize lawsuits against states under USERRA. Justice Elena Kagan questioned Assistant to the Solicitor General Christopher Michel (representing the Department of Justice), asking Michel to resolve a discrepancy.

“There is a little bit of dissonance between the importance you that you’re saying this has to the federal war powers and on the other hand the actual practice of the federal government in prosecuting these suits,” Kagan said.

Michel explained that when the government has found USERRA violations, it often contacts the states involved and resolves the disputes without litigation by letting states know about their USERRA responsibilities. During colloquy with Justice Brett Kavanaugh, Michel warned of the potential importance of the case before the justices. Congress aimed to combat discrimination against military members with USERRA, Michel said, continuing:

There could be serious problems of discrimination against the military. Happily, I don’t think we face that problem on a systematic basis today the way that we did during the Vietnam War, but of course, that could change and a Constitutional ruling by this court could take that tool off the table forever.

Michel went on to explain that there is an additional reason for the court to do what it can to protect service members from employment discrimination by state entities: as people drawn to public service, state employees represent a disproportional number of military reservists.

Justice Stephen Breyer offered some history as he questioned Texas Solicitor General Judd Stone II. Breyer discussed the history of Japanese invasion of the Philippines, and the potential for the federal government to sometimes commandeer state property. He also pointed out that in Federalist 32, Alexander Hamilton had thoughts on sovereign immunity with potential to support Torres’s position in this case.

When Justice Thomas questioned Stone, he replied as if directly to Breyer: “Perhaps I’m not as enamored of Hamilton as some are.”

RELATED: Justice Clarence Thomas Blames Judges for Politicization of the Courts, Slams the ‘Craziness’ of His Confirmation Hearings, and Jokes That He Definitely ‘Didn’t Go Watch Hamilton

Justice Amy Coney Barrett suggested that during the founding era, states may have voluntarily given up some of their sovereign immunity. She asked Stone, “Does it makes sense to think that [the states] retained sovereign immunity?”

“That seems sort of like small potatoes when you think about everything else they relinquished in this area, ” Justice Barrett continued.

Barrett next posed a timely hypothetical, recalling that post-Vietnam, many employers discriminated against service members when they returned home. Bringing the hypothetical to 2022, Barrett asked, “let’s imagine that we get involved in Ukraine and states say that we shouldn’t be, and so they use discrimination against veterans returning home to express their disapproval of our engagement?”

Justice Breyer concluded his colloquy by speaking at length about a case he called “pretty important stakes for the structure of the United States of America.” First, Breyer told Stone that as a reader of history “you know perfectly well 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 basically to lose.” To summarize what was in the minds of the framers, Breyer quoted King George III’s lyrics from the musical Hamilton, “They’ll be back, wait and see, they’ll come crawling back to me.”

The justice then commented in a far more serious tone, “I lived through Vietnam, I saw what was going on. I hope we never have it again.” He continued, offering a hypothetical in which states, in protest of a war effort use the threat of employment discrimination against veterans to limit the size of the military.

Lastly, Breyer concluded by quoting Federalist 32, in which concurrent authority in the states and the federal government would be “contradictory and repugnant.” “Well,” commented the justice, “that’s Hamilton and you’ve heard the evidence that that’s what this case is.”

[Image via Erin Schaff/Pool/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos