War Powers Abrogation

74 Pages Posted: 20 Apr 2020 Last revised: 28 Jun 2021

See all articles by Jeffrey M. Hirsch

Jeffrey M. Hirsch

University of North Carolina School of Law

Date Written: March 20, 2020


The United States’ peacetime security is based entirely on its all-volunteer armed forces. These volunteers, split equally between full- and part-time servicemembers, risk not only their health and safety but also their economic stability, as they are frequently called away from home for training or active duty. These duties also interfere with the demands of employers, creditors, and government agencies—which can result in job losses and financial hardships, among other costs. As a result, the federal government has long used its constitutional war powers to enact legislation that protect servicemembers from many of these hardships. These statutes provide employment leave and anti-discrimination protection, tax relief, and special procedural rights that lessen the burden of military service to ensure that the United States has a sufficient number of well-trained soldiers.

Despite these statutes’ importance to national security, their applicability to state entities is in doubt. Using the Supreme Court’s fluctuating state sovereign immunity jurisprudence, many state employers have invoked sovereign immunity to bar servicemembers’ private claims for monetary relief. More often than not, courts have sided with the states and dismissed servicemembers’ federal claims for want of jurisdiction. However, these decisions are based on erroneous interpretations of the Court’s state sovereign immunity jurisprudence. Under current law, the federal government’s ability to subject states to individual suits is analyzed from a historical perspective, one that asks whether the states, in ratifying the Constitution, believed that they retained immunity in a given area. Based on misinterpretations of Court doctrine and a refusal to apply the required historical analysis, many courts have held that states are immune from claims filed under federal war powers legislation.

This Article provides the first comprehensive historical analysis of the constitutional balance of war powers between the federal and state governments. This analysis unequivocally shows that the plan of the Constitution was to provide the federal government with virtually all war powers. Moreover, the Constitution requires that the very limited war powers left to the states must be entirely under the control of the federal government. As a result of this history, the federal government has constitutional authority to subject states to suit via “war powers abrogation.”

Keywords: state sovereign immunity, eleventh amendment, federalism, federal courts, war powers, military, USERRA, employment

JEL Classification: K31,K40,

Suggested Citation

Hirsch, Jeffrey M., War Powers Abrogation (March 20, 2020). George Washington Law Review, Vol. 89, 2020, UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3557653

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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