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High Court backs Texas state trooper disabled by military service

The Lone Star State faces a lawsuit after it refused to accommodate an Army reservist whose exposure to toxic burn pits in Iraq caused permanent lung damage. 

WASHINGTON (CN) — Ruling for an injured veteran who says Texas trampled his rights, the Supreme Court reminded the state on Wednesday that ratifying the U.S. Constitution came with a cost. 

“Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military,” Justice Stephen Breyer wrote for the 5-4 majority. “States thus gave up their immunity from congressionally authorized suits pursuant to the ‘plan of the Convention,’ as part of ‘the structure of the original Constitution itself.’” 

The case stems from huge open-air pits that the United States built in Iraq and Afghanistan to burn everything from trash and ammunition to medicine and human waste. These trenches — which became known as burn pits — would burn for 24 hours a day, exposing American soldiers to black smoke containing toxic fumes. Le Roy Torres is one of these soldiers. 

After being exposed to burn pits during his deployment in Iraq in the Army Reserve, Torres developed lung damage and was honorably discharged. Torres planned on going back to his job at the Texas Department of Public Safety, only to find that he could no longer perform the duties of a state trooper because of injuries from his service. Texas refused to give Torres another position and told him he would be fired if he did not report to duty as a state trooper. 

Instead of returning to the department under their terms, Torres resigned and started a nonprofit, Burn Pits 360, to advocate for servicemembers injured by toxic burn pits. 

He sued the department meanwhile under the Uniformed Services Employment and Reemployment Rights Act, a law created by Congress in 1994 to protect veterans from discrimination by states acting as employers. Texas claimed it had sovereign immunity, ultimately persuading a state appeals court to dismiss Torres' suit for lack of jurisdiction.

The justices heard oral arguments in March to decide if Congress has the power to authorize suits against nonconsenting states pursuant to its war powers. Today, they ruled it does. 

Joined by the chief justices and by Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh, Breyer said the Vietnam War caused Congress to extend employment protections for veterans. 

“Amidst political opposition to the war, ‘some State and local jurisdictions ha[d] demonstrated a reluctance, and even an unwillingness, to reemploy’ returning servicemembers,” the Clinton appointee wrote. “So Congress authorized private damages suits against States to ensure that ‘veterans who [had] previously held jobs as school teachers, policemen, firemen, and other State, county, and city employees’ would not be denied their old jobs as reprisal for their service. The statute at issue, USERRA, embodies these protections today.” 

Sovereign immunity prevents courts from hearing suits brought against nonconsenting states but states can still be subjected to suits in certain circumstances. Citing Alexander Hamilton, Breyer said there are three circumstances where states waived their sovereign immunity: where the Constitution gives exclusive authority to the federal government, where it prohibited states from exercising an authority given to the union, and where the state's authority would be contradictory to authority granted to the federal government. 

Just last year in PennEast Pipeline Co. v. New Jersey, the court found that Congress could authorize private suits against states and created a test to determine if a state has waived its authority. 

“Congress’ power to build and maintain the Armed Forces fits PennEast’s test,” Breyer wrote. “The Constitution’s text, its history, and this Court’s precedents show that ‘when the States entered the federal system, they renounced their right’ to interfere with national policy in this area.”

Breyer said the argument put forward by Texas would authorize states to thwart military readiness. 

“We need not stray from the statute at hand to see the danger of this approach,” Breyer wrote. “If a State — or even 25 States — decided to protest a war by refusing to employ returning servicemembers, Congress, on Texas’ telling, would be powerless to authorize private reinstatement suits against those States. The potentially debilitating effect on national security would not matter.” 

Justice Clarence Thomas — joined by Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett — dissented. 

Thomas claimed that the court previously ruled that it would have been difficult to adopt a Constitution that strips states of immunity from suits in their own courts. 

“As the Court there already explained, constitutional text, history, and precedent all show that when the States ratified the Constitution, they did not implicitly consent to private damages actions filed in their own courts — whether authorized by Congress’ war powers or any other Article I power,” Thomas wrote. “Because the Court today holds otherwise, I respectfully dissent.” 

Thomas claims the court’s interpretation of USERRA creates a constitutional problem and that the court already answered the question presented in a previous case. 

“I would adhere to Alden and reaffirm that the States did not surrender the immunity applicable in their own courts when they delegated the enumerated powers — including the war powers — to Congress in Article I,” Thomas wrote. 

Texas Solicitor General Judd Stone II did not respond to a request for comment on the ruling, nor did Andrew Tutt, an attorney for Torres with the firm Arnold & Porter. 

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