Military Federalism and State Sovereign Immunity

Torres (Texas Department of Public Safety) was heard by the Supreme Court last week. It concerns whether Congress has the power to revoke a sovereign state’s immunity via legislation appropriate and necessary for its war powers. (Here, USERRA.) The argument centered on the fact that military power is especially federal and solely federal. This could or may not be interpreted as a waiver of sovereign immunity.

According to Professor Robert Leider’s new blog post, this argument has a false premise. Below is an extract of Robert Leider’s argument.

Andrew Tutt (attorney for Torres) and some Justices argued during oral argument that there is a plan of the Convention theory because the federal war powers are the only ones applicable.  Justice Kavanaugh stated that only the federal government was granted war power by the Constitution.  He asked Mr. Tutt “Are you sure?”[H]What is most important about Article I, Section 10? It explicitly deprives the States of any war power.  Justice Barrett asked Texas’s General Judd Stone if “the states would give up all this?” [i.e., their war powers] . . . It makes no sense to assume that they have retained sovereign immunity.  Her assertion of sovereign immunity was “small potatoes” when you take into account all they had given up in the area.  In rebuttal, Tutt claimed that sovereign immunity was “small potatoes” when you consider all the other things they have given up in this area.[t]It is intended to preserve liberty and protect the autonomy of individual states. . . .  He said that in the “area of war”, liberty could only be achieved by entrusting war power solely to the federal government. [be]”Protected in the manner that the Constitution intended.”

The theory that sovereign immunity can be abrogated might hold some merit if all war powers were actually transferred to the federal government by the Framers.  They didn’t.  The Framers did not intend to give any level of government unchecked power of force. Therefore, they split the war powers among the federal government as well as the states.

Constitution grants the federal government considerable power to establish a professional military.  Congress had the power to “raise, support Armies” as well as “provide and sustain a Navy”.  Congress could only appropriate funds for the army for a period of two years, but that was the limit to its power over the military professionals.  This limitation was intended to allow Congress to debate the size and necessity of the army.  The militia was subject to much lower powers than Congress.  Congress had the power to make “uniform rules” for organizing, arming and disciplining the Militia and could also “govern”.[]Such Part of them that may be employed at the Service of the United States.”  Congress cannot federalize the militia except for the following:[,]Repel Invasion  States retained the control of militias as they were.  In my article, I explain more about the federal-state division in military power. The Military Power and Federalism of the United States.)  Justice Breyer addressed the question of federal exclusivity during oral argument by commenting upon how many sections in Article I Section 8 relate to war powers. The Constitution contains so many provisions about war powers that it is difficult to understand. This is not due to the fact that the Constitution gives the federal government unlimited authority, but because of the careful division between them.

Neither, however, was Article I, Section 10 completely deprive states of war power, as some Justices argued. . . .

The entire post can be read here. You can also read the entire post at Professor Leider’s blog, Standing His Ground. It is a legal blog about self-defense and gun control.