Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?

53 Pages Posted: 21 Dec 2003 Last revised: 26 May 2008

See all articles by Jeffrey M. Hirsch

Jeffrey M. Hirsch

University of North Carolina School of Law


The need to attract and keep soldiers has never been greater, yet that necessity is threatened by the Supreme Court's burgeoning state sovereign immunity jurisprudence. Congress has sought to promote military service in the Uniformed Services Employment and Reemployment Act (USERRA), which protects soldiers from adverse employment actions based on their military status. Although USERRA is clearly intended to apply to state employers, the Court's dicta that Congress cannot abrogate state sovereign immunity under Article I of the Constitution appear to emasculate that aim. This article, however, argues that the Court's recent holdings show that USERRA's abrogation, enacted pursuant to Congress's war powers, is an exception to the general prohibition against abrogation under Article I. The validity of war powers abrogation is supported by the historical importance of a unified national defense - well recognized during the plan of the constitutional convention and by the Court itself - which reveals that the states did not expect to possess immunity where the federal government exercises its war powers. This issue is important, for, as this article details, few suitable alternatives exist for military personnel who are deprived of their USERRA rights by state employers. Indeed, unless war abrogation is upheld, or Congress acts to secure conditional waivers of state immunity, military employees in only a few states will have the level of protection deemed necessary by Congress.

Keywords: Federalism, Sovereign Immunity, Employment, War Powers

JEL Classification: J70, J78, K00, K10, K30, K31

Suggested Citation

Hirsch, Jeffrey M., Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?. Seton Hall Law Review, Vol. 34, Spring 2004, 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
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