COMMENT: TORRES V. TEXAS: STATE SOVEREIGN IMMUNITY FALLS TO CONGRESS'S WAR POWERS BUT STATES CAN STILL MUSTER A USERRA DEFENSE.

• Author: Chambliss, Tara

1. INTRODUCTION

   Last term, the Supreme Court in Torres v. Texas Department of Public Safety dealt a significant blow to States' sovereign immunity. (1) The Court considered whether the Uniformed Services Employment and Reemployment Rights Act ("USERRA") (2) gave Petitioner LeRoy Torres, a private citizen, the ability to sue the State of Texas for damages for allegedly discriminating against Torres on the basis of his military service. (3) The holding that States waive their sovereign immunity when Congress acts according to its Article I war powers equips service members to pierce their own State's defenses and vindicate statutorily created private rights in the States' own courts. (4) This comment will give a brief overview of the Court's sovereign immunity jurisprudence and address the background of USERRA. Next, it will introduce how PennEast Pipeline v. New Jersey (5) marked a pivot in the Court's sovereign immunity jurisprudence which resulted in Torres's complete departure from the Court's reasoning prior to PennEast. Finally, this comment will advocate for the application of a version of the congruence and proportionality test that applies when Congress enacts legislation implicating sovereign immunity under the authority of the Fourteenth Amendment.

2. A BRIEF OVERVIEW OF STATE SOVEREIGN IMMUNITY

   A review of the Supreme Court's sovereign immunity jurisprudence necessarily begins with Chisholm v. Georgia. (6) There, the Court based its jurisdiction to hear a claim by a citizen of South Carolina against the State of Georgia upon the text of Article III, Section Two of the Constitution which provides that the judicial power of the United States extends to controversies "between a State and citizens of another State." (7) Justice Iredell in his lone dissent argued that, at the time of the drafting and ratification, the States had universally retained the English doctrine that a sovereign could not be sued without its consent. (8) Based upon the States' outrage following Chisholm, it is clear that he correctly reasoned that the States had not intended to consent to suits by private parties for money damages. (9) In response Congress passed, and the States quickly ratified, the Eleventh Amendment which provided that "the Judicial power of the of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (10)

   Nearly a century later, the Court had occasion to construe the Eleventh Amendment. (11) Despite the fact that the text of the amendment only explicitly refers to suits initiated in federal court by citizens of another State or of a foreign state, Hans v. Louisiana held that the Eleventh Amendment also bars a suit brought by a citizen against his own state to enforce a federal right. (12) Hans, relying on Iredell's dissent and the writings of Alexander Hamilton and James Madison in Federalist Nos. 81 and 82, said that the suability of a state without its consent was unheard of at the time of the framing and the immunity was so widely endorsed that it was "hardly necessary to be formally asserted." (13) The conclusion that "the Framers never thought it possible that a citizen could bring suit against a State without its consent" is a theme that has continued to resonate in the Court's sovereign immunity jurisprudence. (14)

   Nearly one hundred years after Hans, the Court explained that not only did the contemporaneous writings of the founders and framers support the doctrine of state sovereign immunity, "[t]he text and history of the Eleventh Amendment also suggest that Congress acted not to change but to restore the original constitutional design." (15) Reaffirming Hans, the Court declared in Alden v. Maine that "state sovereign immunity 'neither derives from nor is limited by the terms of the Eleventh Amendment.'" (16) According to Alden, sovereign immunity is a "fundamental aspect of the sovereignty which States enjoyed before the ratification of the Constitution" that can only be altered by a showing that States consented to suit "in the plan of the Convention." (17)

   This historically grounded concept of sovereign immunity was briefly disrupted in a series of cases which began in 1964 with Parden v. Terminal Railway of Alabama State Docks Department. (18) There, the suit sought to enforce upon the state-owned railroad the liability requirements of the Federal Employers' Liability Act ("FELA") which made railroads engaging in interstate commerce suable in federal district court. (19) The Court explained that "a State may not be sued by an individual without its consent." (20) But it proceeded to announce that "the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce." (21) Parden therefore relied on the theory of constructive consent--by voluntarily operating in a field which Congress regulated, it "necessarily consented to such suit as was authorized" by Congress. Since States empowered Congress through the Commerce Clause to regulate railroads, the Court reasoned that application of FELA to a State railroad is not hindered by state sovereign immunity. (22)

   This concept of "constructive consent" (23) was relatively short-lived. (24) First, two decades after Parden, the Court in Welch v. Texas Department of Public Highways held that even where Congress has the authority to abrogate state sovereign immunity, any statute that purports to do so must expressly and unequivocally announce its intent to override the Eleventh Amendment. (25) No longer will the Court presume that Congress intended to include States in its enforcement mechanisms; rather, Congress must include in any legislation which would render the States subject to private suit "unmistakable statutory language [stating] its intention to allow States to be sued." (26) Once again, the historical writings of the Framers informed the justices as they wrestled with "the delicate problem of enforcing judgments against the States." (27) And, although a plurality of the Court would two years later in Pennsylvania v. Union Gas hold that Congress could by express abrogation subject States to private suits when legislating under the authority of the Commerce Clause, (28) Welch signaled a retreat from the theory of congressional abrogation which was endorsed in Parden--a retreat which would be completed by College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board. (29)

   Florida Prepaid relied on the then-recent landmark case Seminole Tribe of Florida v. Florida to complete the demise of Parden. (30) Though Seminole Tribe found that Congress expressly declared in the contested legislation its intention to abrogate state sovereign immunity under its Indian Commerce Clause authority, the Court said the express language cleared only one hurdle. (31) The second question it had to address was whether the legislation was "passed pursuant to a constitutional provision granting Congress the power to abrogate." (32) Answering the question in the negative, Seminole Tribe overruled Union Gas, "reconfirm[ing] that the background principle of state sovereign immunity" commands that "[e]ven when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." (33)

   Seminole Tribe was decided while a group of state employees was pursuing claims in federal district court against the State of Maine under the Fair Labor Standards Act ("FLSA"). (34) As a result of the Seminole Tribe holding, the case was dismissed. (35) Because the FLSA contained provisions that purported to allow employees to bring their claims in state courts, the claimants reacted to the dismissal by filing the same suit in the Maine state court. (36) Alden rejected the notion that Congress was unrestrained by the Eleventh Amendment, which textually limits only the power of the federal courts, to abrogate the States' sovereign immunity in the States' courts since the Eleventh Amendment only restrained the jurisdiction of the federal courts. (37) Rather, sovereign immunity is a "separate and distinct structural principle... [which] inheres in the system of federalism established by the Constitution" and can only be overcome by the consent or '"compelling evidence' that the States were required to surrender this power to Congress pursuant to the constitutional design." (38) Alden therefore held that based on the "history, practice, precedent, and the structure of the Constitution... States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation." (39)

   It is important to note that during this time spanning Parden to Alden, the Court was consistent in its recognition that "the Eleventh Amendment, and the principle of state sovereignty which it embodies,... are necessarily limited by the enforcement provisions of [Section Five] of the Fourteenth Amendment." (40) Though the power to abrogate under the Fourteenth Amendment has not been questioned by the Court, the scope of the power has. According to City of Boerne v. Flores, Congress's power to abrogate the State's sovereign immunity under the authority of the Fourteenth Amendment is remedial only. (41) Therefore, Congress is limited to legislation appropriate to enforce existing constitutional rights guaranteed by Fourteenth Amendment and may not define for itself new constitutional rights or make "substantive changes to governing law." (42)

   It is against this backdrop that USERRA was passed in 1994.

3. THE HISTORY OF USERRA

   USERRA has its roots in the Selective Training and Service Act of 1940 ("1940 Act"). (43) The first legislative effort to create employment rights for veterans, the 1940 Act...