Amicus Brief to the Texas Supreme Court in Torres v. Texas Department of Public Safety

23 Pages Posted: 30 Jul 2019

See all articles by Jeffrey M. Hirsch

Jeffrey M. Hirsch

University of North Carolina School of Law

Date Written: July 26, 2019


This amicus brief urges the Texas Supreme Court to grant cert and hold that a state employee can sue his employer under USERRA. At issue is the ability of Congress to use its war powers to abrogate state sovereign immunity.

This brief argues that the Court of Appeals in this case erred in holding that Congress can never abrogate state immunity pursuant to its Article I powers. Although at one point in time such an argument held water, current precedent makes clear that Article I may provide Congress the power to abrogate state sovereign immunity. The only question is when.

The U.S. Supreme Court’s decisions in Alden v. Maine and Central Virginia Community College v. Katz establish an abrogation analysis that focuses on the “history, practice, precedent, and structure of the Constitution.” In other words if, under the plan of the Constitutional Convention, states did not believe that they possessed immunity against specific federal powers, then Congress can enact laws pursuant to that power to allow private rights of action against states. The text and history of the Constitution shows that states lack immunity against private suits brought under federal war powers legislation.

One of the central aims of the Constitution was to centralize war powers under the newly empowered federal government. The text of the Constitution, in addition to the ratification debates, aptly demonstrate that the Founders never intended to permit a state to unilaterally defy federal war powers actions. To the contrary, even prior to the Constitution, states were never understood to possess war powers capabilities. Accordingly, the state employer’s claim that a non-existent immunity allows it to punish a military veteran in violation of federal law not only defies the U.S. Supreme Court’s state sovereign immunity jurisprudence, but also strikes at the heart of the Constitution’s goal of establishing a unified national defense.

Keywords: war powers, abrogation, state sovereign immunity, constitution

Suggested Citation

Hirsch, Jeffrey M., Amicus Brief to the Texas Supreme Court in Torres v. Texas Department of Public Safety (July 26, 2019). UNC Legal Studies Research Paper, Available at SSRN: or

Jeffrey M. Hirsch (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7675 (Phone)

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