The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week the Supreme Court heard oral arguments in Torres v. Texas Department of Public Safety, a case on whether Congress can abrogate a state's sovereign immunity through legislation that is necessary and proper to its war powers. (Here, USERRA.) A major theme of that argument was that the military powers are especially and exclusively federal, which might or might not imply a special exception to sovereign immunity.
But according to a new post by Professor Robert Leider, the premise of that argument is false. Here's an excerpt of his argument:
At oral argument, some Justices and Torres's attorney, Andrew Tutt, contended that a "plan of the Convention" theory applies because of the exclusivity of federal war powers. During questioning, Justice Kavanaugh emphasized that the Constitution gave the war powers entirely to the federal government. For example, he asked Mr. Tutt, "[H]ow important is the text of Article I, Section 10, which explicitly divests the states of anything on the war powers?" Justice Barrett asked Texas's Solicitor General Judd Stone, "if the states gave up all of this [i.e., their war powers] . . . does it make sense to think, oh, but they retained sovereign immunity?" She called sovereign immunity "small potatoes when you think about everything else they relinquished in this area." And on rebuttal, Mr. Tutt argued that "[t]he purpose of sovereign immunity is to protect liberty and the local autonomy of the states . . . . But, in the area of war," he continued, "it is only by vesting the war powers exclusively in the federal government that liberty can [be] protected in the way that the Constitution intends."
This theory for abrogating sovereign immunity might have some plausibility if the Framers had actually vested all the war powers in the federal government. But they did not. Quite the contrary, the Framers feared giving any level of government an unchecked monopoly of force, so they divided the war powers between the federal government and the states.
The Constitution granted the federal government substantial power to form a professional military. Congress could "raise and support Armies" and "provide and maintain a Navy." The only limitation on Congress's power over the professional military was that it could not appropriate money for the army for more than two years. (This limitation was designed to facilitate periodic debate in Congress about the necessity and size of the standing army.) But Congress had much less power over the militia. Congress could make uniform rules for "organizing, arming, and disciplining, the Militia" and it could "govern such Part of them as may be employed in the Service of the United States." But Congress could not federalize the militia, except to "execute the Laws of the Union, suppress Insurrections[,] and repel Invasions." Usual control of the militia remained with the states. (I explain the federal-state division of military power in more depth in my article Federalism and the Military Power of the United States.) During oral argument, Justice Breyer commented on how many different clauses in Article I, Section 8 concern the war powers, wondering whether this showed federal exclusivity. But the Constitution has so many different provisions on the war powers because the Framers carefully divided the war powers between the federal government and the states, not because the Constitution gave plenary and unrestrained authority to the federal government (which the Framers could have accomplished in substantially fewer provisions).
Nor, as some Justices contended, did Article I, Section 10 of the Constitution completely divest states of their war powers. . . .