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Texas faces uphill Supreme Court battle in veteran’s wrongful termination case

In a dispute stemming from a soldier’s exposure to toxic burn pits, the high court pondered how state sovereignty in wrongful termination lawsuits might interfere with the government’s ability to raise an army.

WASHINGTON (CN) — The Supreme Court justices were skeptical that states could avoid lawsuits from veterans during oral arguments on Tuesday, questioning Texas’ claims of sovereign immunity to dodge an injured soldier's wrongful termination case. 

“It would be bizarre not to allow suits in the war powers area where the national interest is at its apex,” Justice Brett Kavanaugh said. 

Justice Elena Kagan expressed similar confusion. 

“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,” the Obama appointee asked. 

The case involves the non-infamous burn pits used by the U.S. military in Iraq and Afghanistan. On many military bases, huge open-air pits were used to burn everything from trash to ammunition, to medicine and human waste. Burning for 24 hours a day while emitting black smoke, the burn pits exposed thousands of American soldiers to toxic fumes while on deployment. Le Roy Torres is one of these soldiers. 

Torres suffered lung damage from the toxic fumes coming off burn pits used while he was deployed in Iraq as a second lieutenant in 2007. The Army Reserve honorably discharged Torres a year after his deployment and he returned to Texas. 

Intending to go back to his job at the Texas Department of Public Safety, Torres told his employer he could no longer work as a state trooper because of injuries he received while deployed. He asked to be given a different position in the department but it refused and instead offered him a temporary position in his previous role as a state trooper. Torres was told he would be fired if he did not report to duty. 

Torres resigned and has since co-founded a nonprofit organization, Burn Pits 360, to advocate for servicemembers injured by the toxic burn pits. 

He filed a suit against the Department of Public Safety in 2017 seeking relief under the Uniformed Services Employment and Reemployment Rights Act. Congress enacted USERRA in 1994 to protect veterans from discrimination by states acting as employers for a worker’s previous military service. 

The DPS moved to dismiss the suit for lack of jurisdiction, claiming Texas had sovereign immunity from the suit despite USERRA allowing individuals to sue the state in court. A trial court denied the agency's motion but a divided court of appeals reversed. 

Now sitting on the U.S. Supreme Court's docket, the case asks the justices whether Congress has the power to authorize suits against nonconsenting states pursuant to its war powers. 

Torres claims states should have been able to recognize that they were giving up some of their sovereign authority just by reading the Constitution. 

“The states could not have read the Constitution, seen the federal structure it created, and believed they would retain sovereign authority to interfere with the federal government's preeminent national defense function,” said Andrew Tutt, an attorney with Arnold & Porter representing Torres.

The federal government echoed that argument as it participated as amicus curiae supporting Torres. 

“The Constitution was adopted, in large part, to stop states from undermining federal efforts to raise a military,” said Justice Department attorney Christopher Michel. “This court has never imposed a state sovereignty-based limitation on the federal powers to raise and support armies or provide and maintain a navy.” 

Texas argues that Congress can use the war powers to raise an army but state sovereign immunity dictates how it can do that. 

“Sovereign immunity never limits the ends of what Congress may pursue, only the means that Congress may use in achieving them,” Texas Solicitor General Judd Stone II said. “Neither precedent nor history shows that the states authorized Congress to use the means of subjecting states to private damages actions by delegating the ends of raising an army to Congress.” 

The DOJ warned that military personnel might face discrimination if states could not be sued in these cases. 

“There could be serious problems of discrimination against the military,” Michel said. “Happily, I don't think we face that problem on a systematic basis today the way that we did during the Vietnam War, but of course, that could change, and a constitutional ruling by this court would take this tool off the table forever.” 

While the government could bring a case directly against Texas if the court were to say individuals could not bring such suits against states, some justices worried about the onslaught of cases this would force the government to pursue. 

“You say … the government [can] bring a lawsuit,” Justice Stephen Breyer said. “Against how many people were there in Vietnam in the armies...They’d be suing till the next 1,000 years.” 

Some of the justices also expressed concern over how the allowance of such discrimination might negatively affect the military’s ability to recruit. 

“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,” Kavanaugh said. “So I think it's important to recognize that a significant component of the power to wage war successfully is having personnel who are willing to sign up and they're not going to be willing to sign up.” 

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