The Volokh Conspiracy
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Justice Breyer's Final(?) Majority Opinion Is A Win For Federal Power
Justice Breyer consistently resisted conservative efforts to constrain federal power, so his opinion in Torres is a fitting swan song.
Today the Supreme Court decided Torres v. Texas Department of Public Safety, in which a 5-4 Court concluded that state sovereign immunity does not prevent Congress from authorizing suits against states pursuant to its power to raise and support armies. Justice Stephen Breyer wrote for the majority, in what may have been his last majority opinion as a Supreme Court Justice. He was joined by the Chief Justice and Justices Sotomayor, Kagan, and Kavanaugh. Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett.
Torres was a definite win for federal power, which would seem fitting for Justice Breyer's last opinion. Other than joining parts of the Chief Justice's opinion in NFIB v. Sebelius, Justice Breyer has been a fairly consistent vote against limitations on federal power, including (as relevant here) claims that the federal government may not subject state governments without their consent to suit due to sovereign immunity.
In Torres, Breyer drew upon las term's decision in PennEast to conclude that the federal government may subject nonconsenting suits to state when exercising powers that are exclusively held by the federal government, such as those powers related to national defense. Here is how he summarized his own opinion:
The Constitution vests in Congress the power "[t]o raise and support Armies" and "[t]o provide and maintain a Navy." Art. I, §8, cls. 1, 12–13. Pursuant to that authority, Congress enacted a federal law that gives returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them. See Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U. S. C. §4301 et seq. This case asks whether States may invoke sovereign immunity as a legal defense to block such suits. In our view, they cannot. Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military. 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.'" PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, ___ (2021) (slip op., at 14) (quoting Alden v. Maine, 527 U. S. 706, 728 (1999)).
He further explained why the Chief Justice's PennEast decision allowed for suit here.
Last Term, in PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, we considered whether Congress could, pursuant to its eminent domain power, authorize private parties to sue States to enforce federally approved condemnations necessary to build interstate pipelines. We held that "when the States entered the federal system, they renounced their right to the 'highest dominion in the[ir] lands,'" meaning they agreed their "eminent domain power would yield to that of the Federal Government." . . . Congress could therefore authorize private actions against States.
PennEast defined the test for structural waiver as whether the federal power at issue is "complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention." . . . Where that is so, the States implicitly agreed that their sovereignty "would yield to that of the Federal Government 'so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.'". . . By committing not to "thwart" or frustrate federal policy, the States accepted upon ratification that their "consent," including to suit, could "never be a condition precedent to" Congress' chosen exercise of its authority. . . . The States simply "have no immunity left to waive or abrogate." . . .
Congress' power to build and maintain the Armed Forces fits PennEast's test. 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.
While there are distinct parallels between the issues in this case and those in PennEast, the Court's lineup is slightly different. Justice Kagan, who had dissented in PennEast, joined the majority this time. She explained her vote in a short concurring opinion explaining that she believes Torres was controlled by PennEast. Torres was still a 5-4 decision, however, because one of the justices who had been in the majority there, Justice Alito, was now in dissent. Unlike Justice Kagan, Justice Alito did not explain his switch.
