Judges of the Supreme Court of Spar in the military burning pit case

Nine Supreme Court justices pose for a group photo 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 Judge Neil Gorsuch and Deputy Attorney General Amy Coney Barrett.

The Supreme Court has the opportunity to allow members of the military to bring separate lawsuits against states for discrimination on the basis of military service. The judges argued in oral arguments Wednesday in the case of a Reserve Army who said he was forced to give up his job as a state trooper due to lung damage from a “burning hole” near his military base in Iraq. Stylized like Torres sues Texas Department of Public SafetyThe case raises legal questions about whether Texas is immune to Torres’ lawsuit based on the state’s sovereign immunity.

The SCOTUS legal challenge basic complaint was filed by Le Roy Torres, a state trooper with the Texas Department of Public Safety (TDPS). Torres was deployed to Iraq as a reservist in 2007, and while abroad he was exposed to toxic waste. The following year, after Torres is honorably discharged, he is expected to continue his work with TDPS. Torres, however, had contracted bronchiolitis, a respiratory condition that prevented him from continuing to work as a state trooper.

Torres resigned after TDPS denied his request for reappointment in the division. He co-founded the nonprofit Burn Pits 360 with his wife Rosie Lopez-Torres; advocacy group for service members injured from toxic burns.

Torres sued TDPS in state court for violating the Uniform Employment and Service Redeployment Rights Act (USERRA), a 1994 federal law that prohibits employment discrimination on the basis of military service. TDPS dismissed the lawsuit arguing that it had sovereign immunity from Torres’ case. The trial court sided with Torres, but the state appeals court reversed and ruled in favor of 0f TDPS. The case is now before SCOTUS because the Supreme Court of Texas has refused to appeal.

Central to the judges’ task was to decide on a state-to-federal question about who had the power to allow Torres to sue Texas: Congress, by its war powers, or just Texas if it agreed. idea.

Torres’ lawyer Andrew Tutt Questioning the judges is one of the most important issues for the health of the U.S. military, and especially the guarantees for reservists. He explained that under the Constitution, war power is the “only” conferment of power to Congress, which is 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 after military service.

Tutt told the judges:

Instead of creating 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 react immediately. immediate response to unpredictable global threats. To persuade soldiers to join that force, and to ensure that soldiers in this force would be willing to risk substantial injury without hesitation, Congress promised these soldiers that they would not be discriminated against on the basis of military service or injury while serving.

However, conservative judges expressed great doubt that USERRA could legally force private lawsuits against individual states based solely on the war power of Congress.

Justice Neil Gorsuch move the discussion to constitutional interpretation, making the point that there is no long history of Congress using its war powers to allow separate lawsuits like Torres against states that disagree . Gorsuch questioned how to handle Congress allowing civil lawsuits against the states until 1974.

“Not exactly the most contemporary proof of the original meaning of the Constitution and the plan of the convention, is it?” Gorsuch sarcastically.

Justice Samuel Alito pressed Tutt to the limits of his argument, suggesting that using war power to bypass sovereign immunity could produce unpredictable results. Alito reasoned that the interstate highways were originally built as a measure of national defense.

“Does that mean Congress allows individuals to sue states for not maintaining highways properly or not patrolling them properly?” he asks.

Justice Clarence Thomas participated in the hearing remotely after he was recently discharged from the hospital and after a match with what was described as an infection. He also took the argument against Tutt’s sovereign immunity to the extreme. Justice Thomas remarked that Tutt placed “a lot of weight” on the war power of Congress. Similar arguments might mean for other constitutional provisions, Thomas, asking “Why couldn’t Congress do the same under another provision like the minting clause?”

Justice Sonia Sotomayor joined to offer an alternative focus relevant to current events. Sotomayor refers to the militia clause of the Constitution, which gives the sole power to “discipline” the military to the federal government, without any concurrent powers vested in the states.

Sotomayor observes: “I consider retaliation for service as a form of employed discipline. “I think your argument is that it is, in essence, a power that demands the relinquishment of a state’s immunity because it grants absolute control in a way that other powers do not.”

The Biden administration also joined in the case of relatives, supporting Torres as well as the right of Congress to authorize lawsuits against the USERRA states. Justice Elena Kagan questioning the Assistant General Counsel Christopher Michel (representing the Ministry of Justice), asked Michel to settle a difference.

“There’s a bit of a contradiction between the importance you’re talking about for the federal war powers and, on the one hand, the actual work of the federal government in prosecuting these cases,” Kagan said.

Michel explained that when the government discovers a USERRA violation, it often contacts the states involved and resolves the dispute without litigation by letting the states know about their USERRA responsibilities. In the process of collaborating with Justice Brett Kavanaugh, Michel warned of the case’s potential importance before the judges. Congress aims to combat discrimination against military members with USERRA, Michel said, continuing:

There can be serious problems of discrimination against the military. Happily, I don’t think we have to deal with that systematically today the way we did during the Vietnam War, but of course, that is subject to change and rulings accordingly. This court’s constitution could take that instrument off the table forever.

Michel went on to explain that there is one more reason for courts to do what they can to protect service members from employment discrimination by state entities: when those who are engaged in the service public service, state employees represent a disproportionate number of military reservists.

Justice Stephen Breyer gave some history as he questioned the Texas Attorney General Stone Judd II. Breyer discussed the history of Japan’s invasion of the Philippines, and the possibility that the federal government sometimes controlled state property. He also points out that in Federalist 32, Alexander Hamilton there have been thoughts on sovereign immunity that are likely to support Torres’ position in this case.

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

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Justice Amy Coney Barrett suggests that during its founding, states may have voluntarily renounced some of their sovereign immunity. She asked Stone, “Is it reasonable to think that [the states] retain sovereign immunity? ”

“That seems like little potatoes when you think about everything else they give up in the field,” continued Justice Barrett.

Next, Barrett put forward a well-timed hypothesis, recalling that in the post-Vietnam era, many employers discriminated against service members when they returned home. Bringing the hypothesis to 2022, Barrett asked, “imagine that we get into Ukraine and countries say we shouldn’t, and so they use discrimination against veterans return home to express disagreement with our participation?”

Justice Breyer ended his exchange by speaking at length about a case he called “a fairly important stake in 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] was extremely upset by the way countries were behaving with continental armies and thought that it was causing the United States to lose fundamentally. ” To summarize what was on the framers’ minds, Breyer quoted Of King George III lyrics Hamilton“They’ll come back, wait and see, they’ll come back to me.”

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

Finally, Breyer concluded by quoting Federalist 32, in which simultaneous power in the states and the federal government would be “contradictory and reprehensible”. “Well,” justice commented, “it’s Hamilton and you’ve heard the evidence that it’s the case.”

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

Is there a trick we should know? [email protected] Judges of the Supreme Court of Spar in the military burning pit case

James Brien

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