The Supreme Court sounded ready Tuesday to back the power of Congress to recruit and retain armed forces, in an oral argument that touched on the current conflict in Ukraine as an example of the unpredictable need to defend the nation.
The case centers on a federal law, the Uniformed Services Employment and Reemployment Rights Act, or USERRA, that gives employment protections for military service members who return from duty. The law includes the right to be promptly reemployed upon return from service and to be free from discrimination based on military service.
State courts in Texas, Virginia, Florida, Tennessee, Georgia, Delaware and Alabama have ruled that Congress doesn’t have the power to give service members the right to file civil lawsuits to enforce those protections against a state, unless that state has given its permission to be sued.
While questions from the justices explored the history of the Constitution and whether states consented to such lawsuits upon its adoption, some justices kept front and center the lessons from the Vietnam War and the potential for another international conflict.
Justice Brett M. Kavanaugh used his questions to defend Congress’ broad and sweeping powers to raise and support military forces, known as the War Powers, and brought up the importance of recruitment and retention. Members of Congress filed a brief in the case with those concerns.
Assistant Solicitor General Christopher G. Michel, defending the law, told Kavanaugh that the United States has a military of 2 million people, and 800,000 of those are National Guard members and reservists. The brochure that the Army gives its recruits lists the USERRA protections as part of the incentive package to join, Michel said, and it matters to be able to tell recruits that they get to keep their job and their employer has to let them take leave for training exercises or deployment.
“And it would matter a great deal in the real world if it was harder for the United States to recruit Guardsmen and Reservists for the military,” Michel said. “The national security needs are unpredictable, and the government doesn’t know when it’s going to need to deploy troops overseas, and being able to have a supply of forces to defend the nation is one of the most existential jobs of the federal government in the first place.”
Justice Amy Coney Barrett called that a “strong argument,” in part because of how states that disagree with United States foreign policy could behave. “Let’s say 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,” Barrett said.
Michel told the justices a similar situation first prompted Congress to enact employment protections for veterans in 1974, when states were resisting reemployment of Vietnam War veterans to express what the foreign policy of the United States should be and how the country should wage war.
“Now, happily, I don’t think we face that problem on a systematic basis today the way that we did during the Vietnam War,” Michel said. “But of course that could change, and a constitutional ruling by this court would take this tool off the table forever.”
Texas Solicitor General Judd E. Stone II told the justices that Congress has several tools other than giving service members the right to file lawsuits against states. The United States could sue on behalf of service members, Stone said, or could through spending measures induce states to waive their immunity to these lawsuits.
Kavanaugh responded: “You’re telling Congress how to wage war successfully, but Congress and the president make that judgment about how to wage war successfully.”
And Kavanaugh also said it was important to recognize that a significant component of the power to wage war successfully is having personnel who are willing to sign up.
“We have to be thinking about the next 50 years,” Kavanaugh said. “We don’t know what’s going to be happening over the next few years, we don’t know what’s going to happen over the next 50 days, in terms of national security and personnel.”
Justice Stephen G. Breyer also questioned Stone’s suggestion that the federal government could bring these cases with unknown conflicts in the future. “How many people were there in Vietnam in the Army?” Breyer said. “They’d be suing until the next 1,000 years.”
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch raised concerns that a broad reading of the War Powers could infringe on state’s rights or allow Congress to authorize private lawsuits against states on other issues.
The Supreme Court is expected to issue a decision by the end of the term at the end of June. The case focuses on Le Roy Torres, a state trooper for the Texas Department of Public Safety who returned from active duty with the U.S. Army Reserve in Iraq with lung damage from toxic burn pits.
Torres says his constrictive bronchiolitis prevented him from performing his duties as a state trooper, so he asked to be reassigned to a different position — but the department declined his request. He resigned and then filed a lawsuit against Texas.
A Texas state appeals court ruled against him, making it the latest state to rule against the federal law based on the long-standing doctrine of state sovereign immunity. Torres and his wife, Rosie, later started a nonprofit organization called Burn Pits 360 to advocate for service members and families affected by the toxic burn pits.
USERRA, passed in 1994, establishes broad protections, including the right to take military leave from civilian jobs, to be promptly reemployed upon return from service and to be free from discrimination based on military service, the Torres petition states.
It also requires employers to make reasonable efforts to accommodate those who incur disabilities during their military service and to rehire them in the position they would have held but for their military service, or in an equal position of seniority, status and pay.
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