Torres v. Texas Dep’t of Public Safety

CONSTITUTIONAL FRAMERS’ ORIGINAL INTENT TO SURRENDER IMMUNITY

Petitioner Torres argues that Texas cannot assert immunity in war powers suits because states implicitly surrendered this immunity upon entering the constitutional compact, thus signaling their consent to such suits. Brief for Petitioner at 21. Torres posits that the Constitution’s Framers concentrated wartime decision-making authority within the federal government because the less-centralized framework of the Articles of Confederation impeded the nation’s ability to wage war effectively. Id. at 21. Torres highlights Section 8 in Article I (“Art. I-8”) of the Constitution, which grants Congress broad powers related to the regulation of military forces. Id. at 22. However, Torres contends that Art. I-8 denies states an expansive role to regulate militias. Id. Torres further points to Article I, Section 10, which divests states of certain war-related powers. Id. Torres concludes that these clauses collectively suggest war-making powers are distinguishable from other constitutional provisions because they inherently require states to forfeit sovereignty to federal authorities in this sphere. Id. at 23–25. Indeed, Torres concludes that if states could exercise authority over war-making, the country could not exist, thus disfavoring a state-based recognition of sovereign immunity. Id. at 26.

Torres argues that reversal is necessary to avoid upending the centuries-long practice of allowing private-party war powers suits against states. Brief for Petitioner at 28–30. Torres maintains that the Framers wanted Congress to retain unimpeded war powers in times of both war and peace because these powers are vital to the country’s success. Id. at 26–27. Torres asserts that the Framers’ original intent requires courts to permit private-party suits against states on foreign relations issues. Id. at 27. Torres claims evidence of this intent is found in the Framers’ discussions surrounding the Treaty of Paris, which allowed British creditors to collect on war debts arising from the American Revolution. Id. at 27–28. Torres notes that many states passed similar laws granting states the power to expropriate insolvent British creditors, an issue which necessarily implicated lawsuits against states. Id. at 28. Torres argues this history generated a longstanding presumption, which persists to the present, that Article III allows private-party war powers suits against states. Id. at 28–30.

Respondent DPS counters that principles of federalism foreclose Torres’s textual arguments because congressional powers forcing states to consent to private-party suits breach the Constitution’s fundamental structure, thus favoring state sovereign immunity. Brief for Respondent at 30–31. Accordingly, DPS maintains that states should not be strong-armed by private parties into their own courtroom. Id. DPS acknowledges that the Constitution divests the states of certain war powers. Id. at 32. But DPS also claims this limited divestiture does not allow Congress to then expose states to private-party suits via the tangential relationship between those suits and congressional war powers. Id. Finally, DPS asserts that USERRA’s usurpation of state sovereignty does violence to a plain reading of the Constitution, which exempts the federal government from similar private-party suits while simultaneously authorizing relief from states’ treasuries. Id. at 31–32.

DPS contests the idea that states implicitly surrendered their immunity by asserting that the Framers’ careful deliberation of each clause of Article I suggests that states only ceded specific and textually defined powers to the federal government. Brief for Respondent at 13. DPS looks to the war-making clauses’ ratification debates to support this argument. Id. DPS claims that the Army Clause debates focused on the federal government’s ability to raise an army during peacetime, not whether states relinquished immunity from private-party suits. Id. at 14–15. Similarly, DPS asserts that the Navy Clause debates never discussed whether states should waive immunity to suits arising under that Clause. Id. at 15–16. DPS further notes that the Militia Clauses demonstrate a balanced power distribution between the state and federal governments. Id. at 16–18. Finally, DPS points to the meticulous drafting around Congress’s power to “declare war.” Id. at 18–19. DPS argues that, taken together, this history is incompatible with the idea that states implicitly surrendered immunity from war powers suits. Id. at 18–19.

CONGRESSIONAL HISTORICAL WAR-MAKING EXERCISES AS GUIDANCE

Torres argues that history furnishes instances in which the invocation of war powers caused vast encroachments on state sovereignty, thus confirming that states did not retain immunity in suits arising under the war powers. Brief for Petitioner at 31. Torres emphasizes that the war powers are special because they abridge other constitutional protections, such as the freedom of speech. Id. at 31–32. Torres exemplifies the breadth of this ability with Congress’s establishment of an entire provisional state court system in Louisiana in the aftermath of the Civil War. Id. Torres further argues that states presumptively waived immunity by continuously failing to assert immunity in cases where Congress invoked war powers to toll state statutes of limitations. Id. at 32–34. Moreover, Torres notes that states never claimed immunity from habeas corpus petitions brought by federal officers, despite the fact these petitions came from an explicit war measure conferred by Congress and against the states. Id. at 34–36. Torres finally notes that Congress rejected expansive immunity in favor of narrower language, targeted towards limiting Article III’s reach, when Congress drafted the Eleventh Amendment, therefore signaling the allowance of private-party suits in state courts. Id. at 18.

DPS asserts that neither early congressional practice nor Torres’s historical examples indicate that states consented to private-party suits from servicemembers. Brief for Respondent at 25. As support, DPS notes the contrast between Congress's near-immediate passage of laws to harmonize federal and state military forces versus the more-than-century-long gap between the Founding and Congress’s passage of servicemember discrimination protections, suggesting that the Framers did not contemplate the latter. Id. at 25–26. DPS disputes Torres’s emphasis on federal power over Reconstruction-era Louisiana. Id. at 26–27. DPS asserts that comparing peacetime authorization of private-party suits to a military-occupied state “is like comparing apples to ammunition.” Id. DPS further maintains that a state’s refusal to assert immunity in one case does not surrender that immunity in all future cases. Id. at 27–28. DPS adds that the Court has previously flagged constitutional doubt regarding federal tolling of state statutes of limitations. Id. at 28. Specifically in the Eleventh Amendment context, DPS claims that since treaty-based suits against states were unheard of by the Framers, the Constitution cannot possibly contemplate states’ rights in such suits. Id. at 21. Finally, DPS claims that Torres’s habeas argument is irrelevant because habeas cases are historically understood not to implicate questions of sovereign immunity by their very nature. Id. at 28–30.

ABROGATION OF SOVEREIGN IMMUNITY

Torres maintains that because this case does not implicate the principle of abrogation, the Court should hence analyze the controversy using precedents about states ceding sovereign immunity. Brief for Petitioner at 37–39. Torres compares his case to Cent. Va. Cmty. Coll. v. Katz (“Katz”), which established states’ ceding of sovereign immunity in bankruptcy proceedings. Id. at 37–38. As with bankruptcy, Torres emphasizes that nationwide uniformity is a main principle behind the war powers. Id. Quoting Katz, Torres assures that the Constitution limits states’ cession of immunity because suits against states are “ancillary to and in furtherance of” the war powers. Id. at 38. Torres also compares his case to PennEast Pipeline Co., LLC v. New Jersey (“PennEast”), which established states’ ceding of sovereign immunity in eminent domain proceedings. Id. at 38–39. Torres argues that, like state assertion over eminent domain, the war powers would be similarly hamstrung if states could interfere with them. Id. Finally, Torres argues that even if the Court evaluates his controversy under the unfavorable precedent from Seminole Tribe of Fla. v. Florida (“Seminole Tribe”), it should still reverse because Seminole Tribe did not adequately contemplate the unique nature of the war powers, and is thus inapplicable in this context. Id. at 40.

DPS counters that a correct reading of Seminole Tribe carves no special exceptions for the war powers and that even if the war powers avoid Seminole Tribe’s analysis, Katz and PennEast also support affirming the judgment, thus supporting its position. Brief for Respondent at 33, 36. DPS argues that the key connection between Katz and PennEast is the judicial control over property, therefore suggesting that the characteristics of the war powers are not the correct traits to warrant states’ ceding of sovereign immunity. Id. at 36. DPS insists that for both bankruptcy and eminent domain questions, the Constitution contemplated judicially-managed claim resolution. Id. at 38, 40. DPS further notes that bankruptcy and eminent domain actions are primarily limited to the property that supports jurisdiction, and that both actions adjudicate rights justiciable on the international stage. Id. at 37–38, 39–40. DPS thus concludes that since the war powers do not implicate sovereign immunity in these ways, Katz and PennEast are irrelevant to this case, further supporting recognition of state-based immunity. Id. at 41.