Supreme Court, in case on veteran hurt by burn pits, debates war powers
By Adam Liptak
A Supreme Court argument earlier this week about an Army reservist injured by burn pits in Iraq turned into a seminar on the scope of Congress’ war powers, federalism, the Vietnam War and Russia’s invasion of Ukraine.
“This has the potential of being a pretty important case for the structure of the United States of America,” Justice Stephen Breyer said as the argument progressed.
Justice Brett Kavanaugh said the court’s decision could have immediate significance for military readiness. “We don’t know what’s going to be happening over the next 50 days in terms of national security and personnel,” he said.
The case concerned Le Roy Torres, a former Texas state trooper who served in the Army Reserve for almost two decades and deployed to Iraq in 2007. He said he sustained lung damage and other injuries from the burn pits the military used to dispose of garbage, equipment and human waste by dousing those materials in jet fuel and setting them on fire, resulting in thick, black toxic smoke.
When Torres returned to Texas, he said his medical condition did not allow him to resume his duties as a state trooper, and he asked the state for a different job. It refused, and Torres sued under a federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994, which protects veterans from job discrimination and requires employers to make reasonable accommodations for their disabilities.
The question for the justices was whether Congress was entitled to override states’ sovereign immunity, which generally protects them from lawsuits seeking money.
Similar laws protecting returning service members have been in place since World War II, but at first they did not apply to veterans employed by states. In 1974, in reaction to potential discrimination against Vietnam veterans, Congress said that states could also be sued.
Justice Sonia Sotomayor said that history was crucial.
“Really the Vietnam War is what made this statute necessary because it is the first time that we see a state potentially taking action that’s going to directly affect the military’s power,” she said.
Andrew T. Tutt, a lawyer for Torres, said allowing suits against states was necessary to ensure that people would volunteer to serve in the military.
“To convince soldiers to join that force and to ensure that soldiers in it would be willing to risk significant injury without hesitation,” he said, “Congress promised these soldiers that they would not be discriminated against on the basis of their military service or service-connected injuries.”
The federal government argued in support of Torres and in defense of the 1994 law. Christopher Michel, a Justice Department lawyer, said the court should account for the federal government’s need “to have a supply of forces to defend the nation.”
“With respect to raising and supporting armies, the power of national survival,” he said, “the federalism principles really do apply differently.”
Justice Amy Coney Barrett said it was not hard to imagine a contemporary conflict between states and the federal government like the one over the Vietnam War.
“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,” she said.
The Supreme Court has imposed strict limits on Congress’ ability to override states’ sovereign immunity. In a pair of decisions from the 1990s, the court said that the 11th Amendment banned lawsuits against states for money in federal courts even when Congress had authorized them.
In 1996, for instance, in Seminole Tribe v. Florida, the court struck down a federal law authorizing Indian tribes to sue states over disputes concerning casinos.
The court has taken various approaches to the question, striking down laws allowing suits against states for patent and copyright infringement but ruling that bankruptcy presented unique issues and that the federal government could delegate its power of eminent domain to private parties even when state property was at issue.
Justice Elena Kagan said Congress’ power to wage war was at least as important as the other areas in which states could be sued.
“In what world could it be a sensible result to say states can be sued on the basis of the eminent domain clause but not on the basis of war powers?” she asked.
Kavanaugh acknowledged that the court’s precedents pointed “in some different directions.” But he said that “it would be bizarre not to allow suits in the war powers area, where the national interest is at its apex as compared to those other areas.”
But Justice Neil Gorsuch sounded doubtful, noting that Congress first relied on its war powers to allow such suits in 1974. That was, he said, “not exactly the most contemporaneous evidence of the original meaning of the Constitution.”
Judd E. Stone II, Texas’ solicitor general, said the 1994 law took the wrong approach to addressing an important issue.
“There is no evidence,” he said, “that the founding generations saw the power to expose states to private lawsuits as inextricably intertwined with warfare or that the states intended to be sued without their consent by giving Congress the power to raise an army.”
Justice Clarence Thomas, who was released from the hospital Friday after a week of treatment for what the Supreme Court called flulike symptoms, was not on the bench but participated in the argument remotely.