SCOTUS debates 'survival' of US in dispute over military reservists' job protections

The case could hurt recruitment of volunteer service members, the Pentagon says.

March 29, 2022, 4:12 PM

The Biden administration on Tuesday warned the U.S. Supreme Court that "survival of the nation is at stake" in a dispute with the state of Texas over a federal law meant to protect military service members from job discrimination after completing a tour of duty.

The case involves a former Texas state trooper and Army reservist, Le Roy Torres, who was deployed in 2007 to Iraq, where he suffered lung damage from exposure to burn pits. Upon return to civilian life, Torres was effectively forced out of his old job after the troopers refused to accommodate his medical condition.

The government says the Uniformed Services Employment and Reemployment Rights Act, enacted by Congress in 1994, gives military reservists and National Guard members the ability to sue employers who deny them the right to return to work after serving the country.

The Pentagon says the mechanism is critical for recruitment of an all-volunteer force that is increasingly reliant on National Guard members and reservists.

PHOTO: Soldiers lining up for the annual New York City Veterans Day Parade.
Bo Zaunders/Getty Images

"These are people who work for civilian employers at the same time they have jobs. They've never been more important to the military than they are right now," said Assistant Solicitor General Christopher Michel.

"One of the first questions that people like that will ask when they're considering whether to join the military is, 'well, do I get to keep my job?" Michel told the justices. "It really does matter in the real world for the Army to be able to tell them, 'yes, your employer does have to do that.'"

Texas argues it is protected from employment discrimination claims by service members in state courts because of state sovereign immunity under the Constitution. The claim is rooted in the meaning of Congress' constitutional war powers, which the state argues do not extend to lawsuits.

"No one disputes the importance of war powers or that USERRA [the law] advances constitutional ends," said Texas Solicitor General Judd Stone. But "neither precedent nor history show that the states authorized Congress to use the means of subjecting states to private damages actions by delegating the ends of raising an army to Congress."

PHOTO: People visit the Supreme Court building in Washington, D.C. March 15, 2022.
People visit the Supreme Court building in Washington, D.C. March 15, 2022.
Emily Elconin/Reuters, FILE

The gravity of the case did not appear lost on the justices on the bench, a majority of whom appeared inclined to side with Torres and the government. But their views were not always clear and did not break along traditional ideological lines.

"This has the potential of being a pretty important case for the structure of the United States of America," declared Justice Stephen Breyer, the only member of the high court to have served on active duty.

"We have to be thinking about the next 50 years," said Justice Brett Kavanaugh. "It's important to recognize the ability to wage war successfully is getting people to sign up."

Chief Justice John Roberts suggested the federal government had broad leeway in managing and protecting its military force, noting the very existence of the Constitution followed the failure of the Articles of Confederation to do the job.

"The strongest argument is the very reason the [Constitutional] convention was called," Roberts said.

Justice Neil Gorsuch appeared to be the most skeptical of Torres and the administration's argument, disputing the necessity of state discrimination suits for building and maintaining an army.

PHOTO: Supreme Court Justice attends a formal investiture ceremony for a local judge at the Washington county courthouse, March 11, 2022, in Hagerstown, Md.
Supreme Court Justice attends a formal investiture ceremony for a local judge at the Washington county courthouse, March 11, 2022, in Hagerstown, Md.
Andrew Lichtenstein/Corbis via Getty Images

"If it's essential to the war powers... that an individual be able to sue the state, in this case for forms of discrimination, why wouldn't it be equally essential to allow veterans to sue for making sure our highway are in good order so that we can deal with invasions on the West Coast? I mean, that was the whole point of the interstate highway system," Gorsuch hypothesized.

"What's the limit?" he said later.

The trial court in the case sided with Torres and the government, but a federal appeals court reversed it.

The administration repeatedly warned Tuesday that rejecting Torres' claim could discourage public employees nationwide -- who now disproportionately make up members of the Guard and Reserves -- from enlisting in the military in the first place.

A decision in the case is expected by the end of June.

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