Torres v. Texas Department of Public Safety

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 2
Pages 580–628
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 29, 2022
REBECCA A. WOMELDORF
reporter of decisions
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580 OCTOBER
TERM, 2021
Syllabus
TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY
certiorari
to the court of appeals of texas,
thirteenth district
No. 20–603. Argued March 29, 2022—Decided June 29, 2022
Article I of the Constitution grants Congress the power “[t]o raise and
support Armies” and “[t]o provide and maintain a Navy.” § 8, cls. 1,
12–13. Pursuant to that authority, Congress enacted the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA),
which gives returning servicemembers the right to reclaim their prior
jobs with state employers and authorizes suit if those employers refuse
to accommodate veterans' service-related disabilities. See 38 U. S. C.
§ 4301 et seq. Petitioner Le Roy Torres enlisted in the Army Reserves
in 1989. In 2007, he was called to active duty and deployed to Iraq.
While serving, Torres was exposed to toxic burn pits, a method of gar-
bage disposal that sets open fre to all manner of trash, human waste,
and military equipment. Torres received an honorable discharge. But
he returned home with constrictive bronchitis, a respiratory condition
that narrowed his airways and made breathing diffcult. These ail-
ments, Torres says, left him unable to work his old job as a state trooper.
Torres asked his former employer, respondent Texas Department of
Public Safety (Texas), to accommodate his condition by reemploying him
in a different role. Texas refused. So Torres sued Texas in state court
to enforce his rights under USERRA. § 4313(a)(3). Texas tried to dis-
miss the suit by invoking sovereign immunity. The trial court denied
the State's motion. An intermediate appellate court reversed, reason-
ing that, under this Court's case law, Congress could not authorize pri-
vate suits against nonconsenting States pursuant to its Article I powers
except under the Bankruptcy Clause, citing Central Va. Community
College v. Katz, 546 U. S. 356. The Supreme Court of Texas denied
discretionary review. After the decision below, this Court issued Penn-
East Pipeline Co. v. New Jersey, 594 U. S. –––. PennEast held that the
States waived their sovereign immunity as to the federal eminent do-
main power pursuant to the “plan of the Convention.” The Court then
granted Torres' petition for certiorari to determine whether, in light
of that intervening ruling, USERRA's damages remedy against state
employers is constitutional.
Held: By ratifying the Constitution, the States agreed their sovereignty
would yield to the national power to raise and support the Armed
Forces. Congress may exercise this power to authorize private dam-
ages suits against nonconsenting States, as in USERRA. Pp. 587–599.

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581
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(a) While courts generally may not hear private suits against noncon-
senti
ng States, see Blatchford v. Native Village of Noatak, 501 U. S.
775, 779, the States remain subject to suit in certain circumstances.
States may consent to suit, see Sossamon v. Texas, 563 U. S. 277, 284;
Congress may abrogate States' immunity under the Fourteenth Amend-
ment, see Fitzpatrick v. Bitzer, 427 U. S. 445, 456; and, as relevant here,
States may be sued if they agreed their sovereignty would yield to the
exercise of a particular federal power as part of the “plan of the Conven-
tion,” PennEast, 594 U. S., at ––– —that is, if “the structure of the origi-
nal Constitution itself ” refects a waiver of States' immunity, Alden v.
Maine, 527 U. S. 706, 728.
Consistent with these principles, the Court long ago found structural
waiver as to suits between States, see South Dakota v. North Carolina,
192 U. S. 286, and suits by the United States against a State, see United
States v. Texas, 143 U. S. 621. A century later, in Central Va. Commu-
nity College v. Katz, 546 U. S. 356, the Court recognized another struc-
tural waiver, holding that Congress may authorize private suits against
States under the Bankruptcy Clause. For several years, both before
and after Katz, the Court declined to acknowledge additional waivers of
sovereign immunity under Congress' Article I powers or to fnd Article
I authority to abrogate immunity. See, e. g., Seminole Tribe of Fla. v.
Florida, 517 U. S. 44; Florida Prepaid Postsecondary Ed. Expense Bd.
v. College Savings Bank, 527 U. S. 627. Last Term, in PennEast, the
Court considered whether Congress could, pursuant to its eminent do-
main power, authorize private suits against States to enforce federally
approved condemnations necessary to build interstate pipelines. Penn-
East held that Congress could authorize such suits because, upon enter-
ing the federal system, the States implicitly agreed their “eminent do-
main power would yield to that of the Federal Government.” 594 U. S.,
at –––. PennEast defned the test for structural waiver as whether the
federal power is “complete in itself, and the States consented to the
exercise of that power—in its entirety—in the plan of the Convention.”
Id., at –––. Pp. 587–589.
(b) Congress' power to build and maintain the Armed Forces fts Penn-
East's test, as the Constitution's text, its history, and this Court's prece-
dents show. To begin, the Constitution's text strongly suggests a com-
plete delegation of authority to the Federal Government to provide for
the common defense. Article I spells out Congress' many related pow-
ers across multiple provisions, § 8, cls. 1, 11–16; Article II makes the
President the “Commander in Chief,” § 2, cl. 1; and Article IV charges
the Federal Government with “protect[ing]” States “against Invasion,”
§ 4. The Constitution also divests the States of like authority, see Art.
I, § 10, cls. 1, 3, assigning them only a limited role in “the Appointment
of the Offcers” to and the “training [of] the Militia,” “according to the

582 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Syllabus
discipline prescribed by Congress,” § 8, cl. 16. History teaches the
same
lesson. “[T]he want of power in Congress to raise an army” under
the Articles of Confederation had left the National Government “de-
penden[t] upon the States” to supply military forces via a system of
quotas and requisition that had nearly cost the fedging Nation victory
in the Revolutionary War. Selective Draft Law Cases, 245 U. S. 366,
381. The Constitution, by design, worked “an entire change in the frst
principles of the system,” giving Congress direct power over the “for-
mation, direction or support of the NATIONAL FORCES.” The Fed-
eralist No. 23, p. 148 (A. Hamilton). By ratifying that document, the
States well knew that their sovereignty would give way to national
policy to build and maintain the Armed Forces. Consistent with this
structural understanding, Congress has long legislated regarding mili-
tary forces at the expense of state sovereignty. See, e. g., 1 Stat. 182.
This Court's precedents likewise show that ordinary background princi-
ples of state sovereignty are displaced in this uniquely federal area.
See, e. g., Tarble's Case, 13 Wall. 397, 398 (the “National government['s]
. . . power `to raise and support armies' ” cannot be “question[ed by]
any State authority”); United States v. Oregon, 366 U. S. 643, 648–649
(authority “normally left to the States” is displaced by Congress' “con-
stitutional powers to raise armies and navies”).
Under PennEast's test, Congress' power to build and maintain a na-
tional military is “complete in itself ”: Upon entering the Union, the
States agreed that their sovereignty would “yield . . . so far as is neces-
sary” to federal policy for the Armed Forces. 594 U. S., at –––. Be-
cause the States committed not to “thwart” this federal power, “[t]he
consent of a State,” including to suit, “can never be a condition prece-
dent” to Congress' chosen exercise. Id., at –––. Pp. 590–594.
(c) No contention to the contrary persuades the Court otherwise.
The categorical claim that Congress may not exercise its Article I pow-
ers to abrogate state sovereign immunity ignores the fact that “congres-
sional abrogation is not the only means of subjecting States to suit. . . .
States can also be sued if they have consented to suit in the plan of
the Convention.” PennEast, 594 U. S., at –––. Nor is USERRA's text
insuffciently clear to displace potential immunity under Texas law.
USERRA expressly “supersedes any State law . . . that reduces, limits,
or eliminates in any manner any right or beneft provided by this chap-
ter, including the establishment of additional prerequisites to the exer-
cise of any such right or the receipt of any such beneft.” § 4302(b).
Neither Seminole Tribe nor Alden compels a different result. Con-
gress' commerce powers, at issue in Seminole Tribe, are distinguishable
from its war powers under PennEast's “complete in itself ” inquiry.
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583
Syllabus
And in Alden, the Court expressly embraced “ `the postulate that States
.
. . shall be immune from suits, without their consent, save where there
has been “a surrender of this immunity in the plan of the conven-
tion.” ' ” 527 U. S., at 730 (emphasis added). That “save where” pro-
viso recognizes exceptions for structural waivers, supplying the basis
for the Court's decisions in PennEast and Katz, as well as the decision
today. Finally, the idea that PennEast and Katz involved in rem ac-
tions and the fact that USERRA suits lack a certain founding-era pedi-
gree do not make a difference under PennEast's basic reasoning.
The Court therefore holds that, in joining together to form a Union,
the States agreed to sacrifce their sovereign immunity for the good of
the common defense. Pp. 595–599.
583 S. W. 3d 221, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Sotomayor, Kagan, and Kavanaugh, JJ., joined. Kagan, J., fled a
concurring opinion, post, p. 599. Thomas, J., fled a dissenting opinion, in
which Alito, Gorsuch, and Barrett, JJ., joined, post, p. 601.
Andrew T. Tutt argued the cause for petitioner. With him
on the briefs were Elisabeth S. Theodore, Stephen K. Kirth,
and Brian J. Lawler.
Christopher G. Michel argued the cause for the United
States as amicus curiae supporting petitioner. With him
on the brief were Solicitor General Prelogar, Assistant At-
torney General Clarke, Deputy Solicitor General Gannon,
Tovah R. Calderon, and Elizabeth Parr Hecker.
Judd E. Stone II, Solicitor General of Texas, argued the
cause for respondent. With him on the brief were Ken Pax-
ton, Attorney General of Texas, Brent Webster, First Assist-
ant Attorney General, Lanora C. Pettit, Principal Deputy
Solicitor General, and Ari Cuenin, William F. Cole, and
Ryan S. Baasch, Assistant Solicitors General, and Christo-
pher J. F. Galiardo, Assistant Attorney General.*
*Briefs of amici curiae urging reversal were fled for Bipartisan Mem-
bers of Congress by Raff Melkonia and Eric B. Boettcher; for the Consti-
tutional Accountability Center by Elizabeth B. Wydra and Brianne J.
Gorod; for Former Members of Congress by Matthew J. Dowd and
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584 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
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, Con-
gress 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 Reem-
ployment 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 Conven-
tion,' ” as part of “ `the structure of the original Constitution
James M. Eisenmann; for the Reserve Organization of America by Theo-
dore A. Howard and Scott Felder; for Scholars of Constitutional Law et al.
by Michael R. Dreeben; for War Powers Scholars by Matthew D. Rowen;
and for Jeffrey M. Hirsch by Ri chard A. Simpso n and F. Andrew
Hessick III.
Briefs of amici curiae urging affrmance were fled for the State of
Montana et al. by Austin Knudsen, Attorney General of Montana, Kristin
Hansen, Lieutenant General, David M. S. Dewhirst, Solicitor General,
Kathleen L. Smithgall, Assistant Solicitor General, and Timothy J. Long-
feld, Assistant Attorney General, and by the Attorneys General for their
respective States as follows: Steve Marshall of Alabama, Treg Taylor of
Alaska, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Lawrence
G. Wasden of Idaho, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Doug Peterson of Nebraska, John M. O'Connor of Oklahoma, Alan Wil-
son of South Carolina, Jason Ravnsborg of South Dakota, Herbert H.
Slatery III of Tennessee, Sean D. Reyes of Utah, and Patrick Morrisey
of West Virginia; for the Separation of Powers Clinic at the Antonin Scalia
Law School by R. Trent McCotter; and for Philip A. Pucillo by Scott W.
Gaylord.
Alec W. Farr fled a brief for the National Veterans Legal Services Pro-
gram et al. as amici curiae.
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585
Opinion of the Court
itself.' ” PennEast Pipeline Co. v. New Jersey, 594 U. S.
–––,
––– (2021) (quoting Alden v. Maine, 527 U. S. 706, 728
(1999)).
I
A
Congress has “broad and sweeping ” power “to raise and
support armies.” United States v. O'Brien, 391 U. S. 367,
377 (1968). It has long exercised that power to encourage
service in the Armed Forces in a variety of ways. See, e. g.,
Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U. S. 47, 58 (2006) (campus recruiting); Johnson v.
Robison, 415 U. S. 361, 376 (1974) (educational benefts).
Since before the United States' entry into World War II,
Congress has sought, in particular, to smooth volunteers' re-
entry into civilian life by recognizing veterans' “right to re-
turn to civilian employment without adverse effect on . . .
career progress” in the federal work force and private em-
ployment. H. R. Rep. No. 105–448, p. 2 (1998); see Selective
Training and Service Act of 1940, §§ 8(b)(A)–(B), (e), 54 Stat.
890, 891 (damages remedy against private employers).
The Vietnam War prompted Congress to extend these pro-
tections to employment by States. Amidst political opposi-
tion to the war, “some State and local jurisdictions ha[d]
demonstrated a reluctance, and even an unwillingness, to re-
employ” returning servicemembers. S. Rep. No. 93–907,
p. 110 (1974). So Congress authorized private damages suits
against States to ensure that “veterans who [had] previously
held jobs as school teachers, policemen, fremen, and other
State, county, and city employees” would not be denied their
old jobs as reprisal for their service. Ibid. The statute at
issue, USERRA, embodies these protections today.
B
Petitioner Le Roy Torres enlisted in the Army Reserves
in 1989. In 2007, he was called to active duty and deployed
to Iraq. While serving, Torres was exposed to toxic burn
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586 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
pits, a method of garbage disposal that sets open fre to all
manner
of trash, human waste, and military equipment.
Torres received an honorable discharge. But he returned
home with constrictive bronchitis, a respiratory condition
that narrowed his airways and made breathing diffcult.
These ailments, Torres alleges, changed his life and left him
unable to work at his old job as a state trooper. Torres
asked his former employer, respondent Texas Department
of Public Safety (Texas), to accommodate his condition
by reemploying him in a different role. Texas refused to
do so.
Torres sued Texas in state court. He argued that Texas
had violated USERRA's mandate that state employers re-
hire returning servicemembers, use “reasonable efforts” to
accommodate any serv ice-related disabil ity, or fi nd an
“equivalent” position (or its “nearest approximation”) where
such disability prevents the veteran from holding his prior
position. 38 U. S. C. § 4313(a)(3). Texas moved to dismiss
the suit by invoking sovereign immunity. The trial court
denied the motion. A divided intermediate appellate court
reversed, stating this Court's precedents established that
Congress could not authorize private suits against noncon-
senting States pursuant to its Article I powers except under
the Bankruptcy Clause and citing Central Va. Community
College v. Katz, 546 U. S. 356 (2006). See 583 S. W. 3d 221,
225–230 (Tex. App. 2018). The Supreme Court of Texas de-
nied discretionary review.
After the decision below, this Court decided PennEast, 594
U. S. –––. There, we recognized that the States had waived
their sovereign immunity as to the exercise of the federal
eminent domain power under the structure of the Constitution
pursuant to the “plan of the Convention.” See id., at –––.
We then granted Torres' petition for certiorari to decide
whether, in light of that intervening decision, USERRA's
damages remedy against state employers is constitutional.
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Opinion of the Court
II
Congress
enacted USERRA as an exercise of its power
“[t]o raise and support Armies” and “[t]o provide and main-
tain a Navy.” U. S. Const., Art. I, § 8, cls. 12–13. The ques-
tion before us is whether the Constitution allows Congress
to enforce these federal reemployment protections by au-
thorizing private litigation against noncompliant state em-
ployers that do not wish to consent to suit.
A
The Constitution forged a Union, but it also protected the
sovereign prerogatives of States within our government.
Generally speaking, “the States entered the federal system
with their sovereignty,” including their sovereign immunity,
“intact.” Blatchford v. Native Village of Noatak, 501 U. S.
775, 779 (1991). Basic tenets of sovereign immunity teach
that courts may not ordinarily hear a suit brought by any
person against a nonconsenting State. See ibid.
But States still remain subject to suit in certain circum-
stances. States may, of course, consent to suit. See Sossa-
mon v. Texas, 563 U. S. 277, 284 (2011). Congress may also
enact laws abrogating their immunity under the Fourteenth
Amendment. See Fitzpatrick v. Bitzer, 427 U. S. 445, 456
(1976). And, as relevant here, States may be sued if they
agreed their sovereignty would yield as part of the “plan of
the Convention,” PennEast, 594 U. S., at ––– —that is, if “the
structure of the original Constitution itself ” refects a waiver
of States' sovereign immunity, Alden, 527 U. S., at 728.
“[A]ctions do not offend state sovereignty” if “the States con-
sented” to them “at the founding.” PennEast, 594 U. S.,
at –––.
Alexander Hamilton described three circumstances where
the “plan of the Convention” implied that the States waived
their sovereign immunity: “where the Constitution in ex-
press terms granted an exclusive authority to the Union;
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588 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
where it granted in one instance an authority to the Union
and
in another prohibited the States from exercising the like
authority; and where it granted an authority to the Union,
to which a similar authority in the States would be abso-
lutely and totally contradictory and repugnant.” The Fed-
eralist No. 32, p. 200 (J. Cooke ed. 1961) (emphasis in origi-
nal); see id., No. 81, at 548–549 (A. Hamilton).
Consistent with these principles, this Court has found
structural waiver as to suits between States, in South Da-
kota v. North Carolina, 192 U. S. 286 (1904), and suits by the
United States against a State, in United States v. Texas, 143
U. S. 621 (1892). The States, we said, must have recognized
that these waivers of immunity from suit were “a necessary
feature of the formation of a more perfect Union” and thus
“inherent in the constitutional plan.” Principality of Mon-
aco v. Mississippi, 292 U. S. 313, 329 (1934). The alternative
to consenting to litigation between sovereigns, after all,
could be civil war.
A century later, in Central Va. Community College v.
Katz, 546 U. S. 356, the Court recognized another structural
waiver. We held that States could not assert sovereign im-
munity to block suits by private parties pursuant to federal
bankruptcy laws. Id., at 359. There, too, we based our
holding on the constitutional structure. We noted the text's
insistence on “uniform Laws on the subject of Bankruptcies,”
U. S. Const., Art. I, § 8, cl. 4, the Framers' concerns about
States' passing patchwork legislation and refusing to dis-
charge the debts of noncitizens (as had happened under the
Articles of Confederation), and the history of habeas laws
related to bankruptcy. See 546 U. S., at 368–377. All that
evidence led us to conclude that, by ratifying the Constitu-
tion, the States had agreed that their sovereignty would
yield to ensure the effectiveness of national bankruptcy pol-
icy. See id., at 379.
For several years, both before and after Katz, the Court
declined to acknowledge additional waivers of sovereign im-
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589
Opinion of the Court
munity under Congress' Article I powers or to fnd Article I
author
ity to abrogate immunity. See, e. g., Seminole Tribe
of Fla. v. Florida, 517 U. S. 44 (1996); Florida Prepaid Post-
secondary Ed. Expense Bd. v. College Savings Bank, 527
U. S. 627 (1999). Two Terms ago, we even described Katz's
analysis as “good for one clause only,” suggesting we would
not fnd further waivers under Article I. Allen v. Cooper,
589 U. S. –––, ––– (2020) (hyphens omitted).
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 neces-
sary 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.” Id., at ––– – ––– (quoting
Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641,
656 (1890)). Congress could therefore authorize private ac-
tions against States.
PennEast defi ned the test for str uc tura l 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.” 594 U. S., at –––
(internal quotation marks and citation omitted). 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.' ” Id., at ––– (quoting Kohl v. United
States, 91 U. S. 367, 372 (1876)). By committing not to
“thwart” or frustrate federal policy, the States accepted
upon ratifcation that their “consent,” including to suit, could
“never be a condition precedent to” Congress' chosen exer-
cise of its authority. 594 U. S., at –––, ––– (internal quota-
tion marks omitted). The States simply “have no immunity
left to waive or abrogate.” Id., at –––.
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
B
Congress'
power to build and maintain the Armed Forces
fts PennEast's test. The Constitution's text, its history,
and this Court's precedents show that “when the States en-
tered the federal system, they renounced their right” to in-
terfere with national policy in this area. Id., at –––.
For one thing, the Constitution's text, across several Arti-
cles, strongly suggests a complete delegation of authority to
the Federal Government to provide for the common defense.
Unlike most of the powers given to the National Govern-
ment, the Constitution spells out the war powers not in a
single, simple phrase, but in many broad, interrelated provi-
sions. The Preamble makes the “common defence” one of
the document's central projects. Article I gives Congress
authority to “provide for th[at] common Defence” in six sepa-
rate paragraphs: to “declare War”; “raise and support Ar-
mies”; “provide and maintain a Navy”; “make Rules” for the
Armed Forces; “provide for calling forth the Militia”; and
“provide for [their] organizing, arming, and disciplining.”
§ 8, cls. 1, 11–16. Article II makes the President the “Com-
mander in Chief of the Army and Navy of the United States,
and of the Militia of the several States.” § 2, cl. 1. And
the Federal Government is charged with “protect[ing] each”
State “against Invasion.” Art. IV, § 4.
The Constitution also divests the States of like power.
States may not “engage in War, unless actually invaded,”
“enter into any Treaty,” or “keep Troops, or Ships of War in
time of Peace.” Art. I, § 10, cls. 1, 3. States retain a role
in “the Appointment of the Offcers” to and the “training [of]
the Militia,” but that delegation is strictly cabined. Art. I,
§ 8, cl. 16. States must do so “according to the discipline
prescribed by Congress.” Ibid. These substantial limita-
tions on state authority, together with the assignment of
sweeping power to the Federal Government, provide strong
evidence that the structure of the Constitution prevents
States from frustrating national objectives in this feld.
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Opinion of the Court
History teaches the same lesson. “When the Framers
met
in Philadelphia in the summer of 1787, they sought to
create a cohesive national sovereign in response to the fail-
ings of the Articles of Confederation.” PennEast, 594 U. S.,
at –––. The Founders recognized, frst and foremost, “that
the confederation produced no security agai[nst] foreign in-
vasion; congress not being permitted to prevent a war nor
to support it by the[ir] own authority,” because Congress
lacked the power to marshal and maintain a fghting force
“ft for defence.” 1 Records of the Federal Convention of
1787, p. 19 (M. Farrand ed. 1966) (Edmund Randolph opening
remarks) (alterations in original).
“[T]he want of power in Congress to raise an army” had
left the National Government “dependen[t] upon the States”
to supply military forces via a system of quotas and requisi-
tion that had nearly cost the Nation victory in the Revolu-
tionary War. Selective Draft Law Cases, 245 U. S. 366, 381
(1918). George Washington warned from the battlefeld
that, unless Congress is “vested with powers by the several
States” to raise an army, “our cause is lost.” Letter to J.
Jones (May 31, 1780), in 8 Writings of George Washington
304 (W. Ford ed. 1890). In short, “[t]he experience of the
whole country, during the revolutionary war, established, to
the satisfaction of every statesman, the utter inadequacy and
impropriety of this system of requisition.” 3 J. Story, Com-
mentaries on the Constitution of the United States § 1174,
p. 65 (1833) (Story). The need to fx that failing by estab-
lishing a strong national power to raise and maintain a mili-
tary was one of the “recognized necessities” for calling the
Constitutional Convention. Selective Draft Law Cases, 245
U. S., at 381.
The Constitution, by design, worked “an entire change in
the frst principles of the system.” The Federalist No. 23,
at 148 (A. Hamilton). The Framers gave Congress direct
power over the “formation, direction or support of the
NATIONAL FORCES.” Ibid. (emphasis in original). So
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592 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
“general and indefnite” were these powers vis-à-vis the
St
ates that “[o]bjections were made against” them as “sub-
versive of the state governments,” which retained “no con-
trol on congress” under the new arrangement. 3 Story
§§ 1176, 1177, at 67. Some state conventions pitched propos-
als to limit the reach of Congress' war powers, but those
amendments “die[d] away.” Id., § 1186, at 74. The States
ultimately ratifed the Constitution knowing that their sover-
eignty would give way to national military policy.
Consistent with that structural understanding, Congress
has, since the founding era, directed raising and maintaining
the national military, including at the expense of state sover-
eignty. For instance, early Congresses established military
bonuses to reward service, even requiring Virginia to give
land to some Revolutionary War offcers. See Act of Aug.
10, 1790, 1 Stat. 182. Could Virginia have refused to go
along? We do not think so.
As President Lincoln refected while the Civil War raged:
The federal power to raise and maintain a military “ `is given
fully, completely, unconditionally. It is not a power to raise
armies if State authorities consent; . . . it is a power to raise
and support armies given to Congress by the Constitution,
without an “if.” ' ” Lichter v. United States, 334 U. S. 742,
757, n. 4 (1948) (quoting 9 J. Nicolay & J. Hay, Complete
Works of Abraham Lincoln 75–77 (1894)).
An unbroken line of precedents supports the same conclu-
sion: Congress may legislate at the expense of traditional
state sovereignty to raise and support the Armed Forces.
During the Civil War, this Court rejected a State's attempt
to retrieve, through habeas corpus, a deserted soldier “held
in the custody of a recruiting offcer of the United States.”
Tarble's Case, 13 Wall. 397, 398 (1872). The “National gov-
ernment['s] . . . power `to raise and support armies' ” cannot
be “question[ed by] any State authority,” we said. Id., at
408. In Stewart v. Kahn, 11 Wall. 493 (1871), the Court ap-
proved a federal statute that, among other provisions, tolled

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593
Opinion of the Court
state statutes of limitations in state courts for suits against
soldiers
while they were in service of the Union. The Court
described Congress' authority as “carr[ying] with it inher-
ently the power” to “remedy” state efforts to frustrate
national aims; objections sounding in ordinary federalism
principles were “untenable.” Id., at 507.
In the early 20th century, the Court again rejected state-
sovereignty objections in this area, this time to the draft.
See Selective Draft Law Cases, 245 U. S., at 381. We wrote
that Congress' authority to raise armies could not be quali-
fed or restricted by the States because the Constitution
“manifestly intended to give . . . all” such power to the Fed-
eral Government and “leave none to the States.” Ibid.
Modern examples illustrate the same structural point. In
United States v. Oregon, 366 U. S. 643, 644–649 (1961), this
Court rejected a State's Tenth Amendment challenge to a
federal law providing that, when certain veterans die with-
out heirs, their property distributes to veterans' facilities
rather than escheating to the State. Even though estate
and property law are areas “normally left to the States,”
the Court explained that those background assumptions are
displaced when it comes to Congress' “constitutional powers
to raise armies and navies.” Id., at 648–649. When, years
later, the Court adopted a broader view of state sovereignty
under the Tenth Amendment, the Court was careful to clar-
ify that “[n]othing we say in this opinion addresses the scope
of Congress' authority under its war power.” National
League of Cities v. Usery, 426 U. S. 833, 854–855, n. 18 (1976),
overruled on other grounds, Garcia v. San Antonio Metro-
politan Transit Authority, 469 U. S. 528 (1985).
Nor is the Federal Government's power limited to the
“context of an actual war,” as we held more recently in Per-
pich v. Department of Defense, 496 U. S. 334, 349 (1990).
After the Governors of California and Maine refused to allow
their States' National Guard members to be sent on training
missions in Honduras, Congress eliminated the longstanding
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Opinion of the Court
requirement that the military obtain consent from the rele-
vant
Governor before transferring National Guard members
to active military service. Id., at 346. The Court rejected
the notion that so holding “nullif[ied] an important state
power, ” instead “recogniz[ing] the supremacy of federal
power in the area of military affairs.” Id., at 351.
The lesson we draw from these cases is that “ `[t]he power
to wage war is the power to wage war successfu l ly. ' ”
Lichter, 334 U. S., at 780 (quoting address by C. Hughes, War
Powers Under the Constitution (Sept. 5, 1917)). The Fram-
ers “ `had emerged from a long struggle which had taught
them the weakness of a mere confederation,' ” so “ `they es-
tablished a Union which could fght with the strength of one
people under one government entrusted with the common
defence.' ” Ibid. Under our constitutional order, States
may not place any “ `limitations inconsistent' ” with Con-
gress' power because “ `every resource of the people must be
at command.' ” Ibid. In short, the States agreed to “di-
ves[t]” themselves of “the traditional diplomatic and military
tools that . . . sovereigns possess”—to sacrifce their sover-
eignty for the common defense. Franchise Tax Bd. of Cal.
v. Hyatt, 587 U. S. –––, ––– (2019).
It follows that Congress' power to build and maintain a
national military is “complete in itself.” PennEast, 594
U. S., at ––– (internal quotation marks omitted). Text, his-
tory, and precedent show the States agreed that their sover-
eignty would “yield . . . so far as is necessary” to national
policy to raise and maintain the military. Id., at ––– (inter-
nal quotation marks omitted). And because States com-
mitted themselves not to “thwart” the exercise of this fed-
eral power, “[t]he consent of a State,” including to suit, “can
never be a condition precedent to [Congress'] enjoyment” of
it. Id., at –––, ––– (internal quotation marks omitted). We
consequently hold that, as part of the plan of the Convention,
the States waived their immunity under Congress' Article
Ipower “[t]o raise and support Armies” and “provide and
maintain a Navy.” § 8, cls. 12–13.
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595
Opinion of the Court
III
N
either Texas nor the dissent persuades us otherwise.
Texas asserts that “Congress cannot abrogate state sover-
eign immunity through the exercise of Article I powers.”
Brief for Respondent 33. But, as explained, “congressional
abrogation is not the only means of subjecting States to suit.
. . . States can also be sued if they have consented to suit in
the plan of the Convention.” PennEast, 594 U. S., at –––.
We recognize that waiver today, as we have before in Penn-
East and Katz.
The dissent (but not Texas) adds that Congress needed to
speak more clearly to subject Texas to suit because US-
ERRA could be read to incorporate state law, perhaps in-
cluding Texas' immunity laws. See post, at 610–613 (opinion
of Thomas, J.). But USERRA's text is clear: Congress
sought to authorize suits against state employers. The very
provision to which the dissent cites is entitled “Enforcement
of rights with respect to a State or private employer.” 38
U. S. C. § 4323. USERRA elsewhere expressly “supersedes
any State law . . . that reduces, limits, or eliminates in any
manner any right or beneft provided by this chapter, includ-
ing the establishment of additional prerequisites to the exer-
cise of any such right or the receipt of any such beneft.”
§ 4302(b). Congress' clarifcation that suits proceed “in a
State court of competent jurisdiction in accordance with the
laws of the State” merely addresses the fact that USERRA
suits must be brought in state (rather than federal) court.
§ 4323(b)(2). Under Supremacy Clause principles, Texas
courts may not enforce contrary state laws to block these
suits. Cf. Testa v. Katt, 330 U. S. 386, 390–394 (1947).
Texas and the dissent go on to suggest that the fact that
an area of law “is under the exclusive control of the Federal
Government” is not alone suffcient to do away with sover-
eign immunity. Seminole Tribe, 517 U. S., at 72; see post,
at 610–612. We agree. In Seminole Tribe, we held that
Congress could not rely on its Article I commerce powers
to abrogate state sovereign immunity simply because that
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Opinion of the Court
power was exclusive. 517 U. S., at 72. But later, in Penn-
E
ast, we found that the federal eminent domain power was
“ `complete in itself,' ” and held that was enough to fnd a
waiver of sovereign immunity in the constitutional structure.
594 U. S., at –––. It thus matters to the analysis that federal
regulation of commerce (at issue in Seminole Tribe) involves
goods that, before they travel between States or outside a
tribe, are subject to regulation by a sovereign other than
the Federal Government (a State or tribe). That feature of
commerce arguably makes the federal regulatory power less
than “complete.” The dissent takes issue with this “com-
plete in itself ” inquiry. See post, at 620–628. But its quar-
rel lies with PennEast, which used the formulation we rely
upon today.
In any event, the text, history, and precedent we have de-
scribed indicate that an assertion of state sovereignty to
frustrate federal prerogatives to raise and maintain military
forces would be strongly “contradictory and repugnant” to
the constitutional order. The Federalist No. 32, at 200 (A.
Hamilton) (emphasis in original). Neither Seminole Tribe
nor the cases that followed it, such as Florida Prepaid, 527
U. S. 627, considered federal powers that give rise to these
same structural inferences. None of those powers (e. g., In-
dian commerce, interstate commerce, or intellectual prop-
erty) is expressly denied to the States, or operates for the
beneft of the entire Nation, or proves comparably essential
to the survival of the Union—itself a foundational purpose
for drafting the Constitution. See Brief for United States
as Amicus Curiae 30–31. These factors, taken together,
lead us to conclude that the results in PennEast and Katz,
not dicta in Seminole Tribe, control this case.
The dissent makes two further points. First, it quotes
Alden v. Maine for the proposition that “ `the powers dele-
gated to Congress under Article I of the United States Con-
stitution do not include the power to subject nonconsenting
States to private suits for damages in state courts.' ” Post,
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597
Opinion of the Court
at 601, 608 (quoting 527 U. S., at 712; emphasis deleted). But
the
dissent would give this sentence more weight than it can
bear. The quoted passage appears in the introduction to the
Court's opinion, and it refers summarily to Article I's general
delegations (i. e., Congress' broad authority under the Su-
premacy Clause and the Necessary and Proper Clause). See
Alden, 527 U. S., at 712; see also id., at 731–733 (discussing
same). Alden did not, in this sentence or elsewhere, sug-
gest that there were no exceptions under which Congress
could authorize private suits against States. In fact, Alden
said the opposite. The Court expressly embraced “ `the pos-
tulate that States . . . shall be immune from suits, without
their consent, save where there has been “a surrender of this
immunity in the plan of the convention.” ' ” Id., at 730
(quoting Principality of Monaco, 292 U. S., at 322–323, in
turn quoting The Federalist No. 81; emphasis added). So,
Alden made clear: “In exercising its Article I powers Con-
gress may subject the States to private suits in their own
courts . . . if there is `compelling evidence' that the States
were required to surrender this power to Congress pursuant
to the Constitutional design.” 527 U. S., at 730–731 (quoting
Blatchford, 501 U. S., at 781; emphasis added). As we have
discussed, PennEast and Katz recognize such exceptions as
to the federal eminent domain power and the Bankruptcy
Clause. And they establish the test for what constitutes
“compelling evidence” of structural waiver.
The dissent next implies that PennEast and Katz create
special rules regarding waivers of sovereign immunity in
federal courts that do not apply in state courts. See post,
at 609–610, and n. 4, 616–617, and n. 7. But those opinions'
reasoning about our constitutional structure is not so limited,
as Alden refects. Alden held that Article I did not, in gen-
eral, give Congress the power to set aside States' immunity
from suit in their own courts, despite the Eleventh Amend-
ment's silence on the subject of state courts. (The Amend-
ment's text refers only to federal courts—“The Judicial
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Opinion of the Court
power of the United States.”) Like our other state sover-
eig
n immunity cases, Alden “understood the Eleventh
Amendment to stand not so much for what it says, but for
the presupposition of our constitutional structure which it
confrms.” Blatchford, 501 U. S., at 779; see Alden, 527
U. S., at 755 (explaining its holding is “implicit in the consti-
tutional principle of state sovereign immunity”). It follows
that a waiver pursuant to the plan of the Convention, as we
found in PennEast and Katz, displaces the background princi-
ples of state sovereign immunity wherever those suits pro-
ceed. Neither Alden nor any other case holds to the contrary.
The dissent would leave us with a constitutional structure
that allows Congress to authorize private suits against
States only by abrogation under the Fourteenth Amend-
ment, by legislation under the Bankruptcy Clause (but only
for suits in federal courts), or by delegation of the federal
eminent domain power (but, again, only in federal courts).
The logic of that constitutional design is anything but clear.
Texas tries another tack to distinguish PennEast and
Katz, focusing on a technical aspect of those cases. Texas
says that both eminent domain and bankruptcy involved
in rem proceedings, which are “ `inextricably intertwined' ”
with the exercise of those federal powers. See Brief for Re-
spondent 40 (quoting PennEast, 594 U. S., at –––); see also
post, at 623. The proceeding before us, Texas adds, is not
in rem or so intertwined. We agree, of course, that Penn-
East discussed the close connection between the exercise of
eminent domain and condemnation actions. See 594 U. S.,
at –––; see also Katz, 546 U. S., at 369–372. But we read
PennEast as resting on a broader point: The Federal Gov-
ernment's eminent domain power is complete, such that no
State may frustrate its exercise by claiming immunity to
forestall the transfer of property. And that conclusion ap-
plies equally to Congress' powers to raise and maintain the
military.
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599
Kagan, J., concurring
Texas further argues that Congress cannot subject it to
suit
under USERRA because there is no founding-era his-
tory of similar litigation against States. See Brief for Re-
spondent 25. But PennEast did not require any such his-
tory, as the dissent acknowledges. 594 U. S., at ––– (citing
Texas, 143 U. S., at 646); see post, at 614, n. 6. Again, in
PennEast, we considered the inferences that fow from our
constitutional structure and asked whether States may, con-
sistent with that structure, claim immunity to frustrate fed-
eral objectives. And again, answering that question here,
we fnd that the States waived their immunity under Article
I, § 8, cls. 12 and 13.
Texas' contrary view would permit States to thwart na-
tional military readiness. We need not stray from the stat-
ute at hand to see the danger of this approach. If a State—
or even 25 States—decided to protest a war by refusing to
employ returning servicemembers, Congress, on Texas' tell-
ing, would be powerless to authorize private reinstatement
suits against those States. The potentially debilitating ef-
fect on national security would not matter.
We think it does matter for a simple reason. Text, his-
tory, and precedent show that the States, in coming together
to form a Union, agreed to sacrifce their sovereign immunity
for the good of the common defense.
***
We consequently reverse the judgment of the Texas Court
of Appeals and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
Justice Kagan, concurring.
In my view, our sovereign immunity decisions have not
followed a straight line. Two years ago, I described Katz's
“plan of the Convention” analysis as “good for one clause
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600 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Kagan, J., concurring
only”—i. e., Article I's Bankruptcy Clause. Allen v. Cooper,
589
U. S. –––, ––– – ––– (2020) (hyphens omitted); see Central
Va. Community College v. Katz, 546 U. S. 356, 373–379
(2006). I thought then that our precedents had shut the
door on further Article I exceptions to state sovereign im-
munity. But PennEast proved me wrong. See PennEast
Pipeline Co. v. New Jersey, 594 U. S. ––– (2021). The ques-
tion there was whether the States had consented in the plan
of the Convention to the Federal Government's exercise of
Article I's eminent domain power, including through pri-
vate parties' suits. Relying on our prior decisions, I
concluded that the States had not so consented. See id.,
at ––– – ––– (Barrett, J., dissenting). But the Court ruled
otherwise. Using a new test, it held that the eminent do-
main power was “complete in itself,” meaning that the States
had “consented to the [federal] exercise of that power[ ] in
its entirety.” Id., at –––. The question today, given Penn-
East, is whether the same is true of the war powers. Were
those powers also “complete in themselves,” so that the
States likewise consented to congressionally authorized pri-
vate litigation?
The answer is yes, as the Court holds. Much more than
eminent domain, war powers lie at the heart of the Conven-
tion's plan. The overriding goal of the Convention was “to
create a cohesive national sovereign in response to the fail-
ings of the Articles of Confederation.” Ibid. And among
those failings, none was more important than “the want of
power in Congress to raise an army and the dependence upon
the States” to provide armed forces. Selective Draft Law
Cases, 245 U. S. 366, 381 (1918). For that reason, the war
powers—more than any other power, and surely more than
eminent domain—were “complete in themselves.” They
were given by the States, entirely and exclusively, to the
Federal Government. See ante, at 590–594; U. S. Const.,
Art. I, § 8, cls. 11–16, § 10, cls. 1, 3. PennEast's analysis thus
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601
Thomas, J., dissenting
compels today's result. In setting out the “complete in it-
self
” test, the Court there answered the question here: At
the Convention, the States waived their sovereign immunity
to any suit Congress authorized under the war powers.
Justice Thomas, with whom Justice Alito, Justice
Gorsuch, and Justice Barrett join, dissenting.
More than two decades ago, this Court found it “diffcult
to conceive that the Constitution would have been adopted
if it had been understood to strip the States of immunity
from suit in their own courts and cede to the Federal Gov-
ernment a power to subject nonconsenting States to private
suits in these fora.” Alden v. Maine, 527 U. S. 706, 743
(1999). Accordingly, we held—without qualifcation—that
“the powers delegated to Congress under Article I of the
United States Constitution do not include the power to sub-
ject nonconsenting States to private suits for damages in
state courts.” Id., at 712 (emphasis added).
No longer. Today, by adopting contrived interpretations
of Alden and the recent decision in PennEast Pipeline Co. v.
New Jersey, 594 U. S. ––– (2021), the Court holds that at least
two (and perhaps more) Article I “war powers” do, in fact,
include “the power to subject nonconsenting States to pri-
vate suits for damages in state courts,” Alden, 527 U. S., at
712, and that Congress has exercised that power by enacting
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA), 38 U. S. C. § 4301 et seq.
Alden should have squarely foreclosed that holding. As the
Court there already explained, constitutional text, history,
and precedent all show that when the States ratifed the
Constitution, they did not implicitly consent to private dam-
ages actions fled in their own courts—whether authorized
by Congress' war powers or any other Article I power. Be-
cause the Court today holds otherwise, I respectfully
dissent.
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
I
Af
ter declaring independence, the former Colonies “con-
sidered themselves fully sovereign nations.” Franchise Tax
Bd. of Cal. v. Hyatt, 587 U. S. –––, ––– (2019). And, when
the States ratifed the Constitution, “they entered the Union
`with their sovereignty intact,' ” Federal Maritime Comm'n
v. South Carolina Ports Authority, 535 U. S. 743, 751 (2002)
(quoting Blatchford v. Native Village of Noatak, 501 U. S.
775, 779 (1991)), retaining “a substantial portion of the Na-
tion's primary sovereignty, together with the dignity and es-
sential attributes inhering in that status,” Alden, 527 U. S.,
at 714.
“ `An integral component' of the States' sovereignty was
`their immunity from private suits' ” absent consent. Fran-
chise Tax Bd., 587 U. S., at ––– (quoting Federal Maritime
Comm'n, 535 U. S., at 751–752). That “doctrine . . . was uni-
versal in the States when the Constitution was drafted and
ratifed,” Alden, 527 U. S., at 715–716; see also Hans v. Loui-
siana, 134 U. S. 1, 16 (1890), because “[t]he generation that
designed and adopted our federal system considered immu-
nity from private suits central to sovereign dignity,” 527
U. S., at 715; see also, e. g., Federal Maritime Comm'n, 535
U. S., at 760. In fact, sovereign immunity was so important
that “[t]he Constitution never would have been ratifed if the
States and their courts were to be stripped of their sovereign
authority except as expressly provided by the Constitution
itself.” Atascadero State Hospital v. Scanlon, 473 U. S. 234,
239, n. 2 (1985); see also Ex parte New York, 256 U. S. 490,
497 (1921); Alden, 527 U. S., at 716.
Although States generally retained their immunity from
suit, “in ratifying the Constitution, [they] did surrender a
portion of their inherent immunity.” Federal Maritime
Comm'n, 535 U. S., at 752. As Alexander Hamilton ex-
plained in The Federalist, sovereign immunity was part of
“the general sense and the general practice of mankind,” and
the Constitution therefore left it “with the States” unless
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603
Thomas, J., dissenting
they had “surrender[ed]” some portion “of this immunity in
the
plan of the convention.” The Federalist No. 81, pp. 487–
488 (C. Rossiter ed. 1961); see also Hans, 134 U. S., at 13;
Alden, 527 U. S., at 755.
During the Nation's frst 200 years, this Court recognized
only two instances in which the States had surrendered their
sovereign immunity in the constitutional plan, both of which
involved suits prosecuted by other sovereigns. The States
had agreed to be sued by other States in this Court, see
Principality of Monaco v. Mississippi, 292 U. S. 313, 328
(1934), and by the United States in federal court, see United
States v. Texas, 143 U. S. 621, 644–645 (1892); Franchise Tax
Bd., 587 U. S., at ––– – –––. When it came to private litiga-
tion, however, this Court long maintained that “the Framers
thought it an impermissible affront to a State's dignity to be
required to answer the complaints of private parties in fed-
eral courts,” Federal Maritime Comm'n, 535 U. S., at 760,
and that “the Convention did not disturb States' immunity
from private suits,” id., at 752.
Nevertheless, in the last two decades, the Court has recog-
nized two surrenders of sovereign immunity in cases impli-
cating private parties. First, in Central Va. Community
College v. Katz, 546 U. S. 356 (2006), this Court held that
States waived immunity against the federal discharge of
debts when they ratifed the Bankruptcy Clause. And, in
PennEast, 594 U. S. –––, it held that States waived immunity
against condemnation proceedings brought by private par-
ties to whom the Federal Government has delegated its emi-
nent domain power. Taken together, Katz and Penn-East
centered on whether or not the plan of the Convention—i. e.,
the Constitution itself—required States to surrender their
sovereign immunity. See Katz, 546 U. S., at 379; PennEast,
594 U. S., at –––.
These cases contrast with those that involve congressional
“abrogation” of state sovereign immunity. Abrogation rests
on some “statement Congress ha[s] made on the subject of
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604 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
state sovereign immunity.” Katz, 546 U. S., at 378–379.
Speci
fcally, we have held that Congress must enact “un-
equivocal statutory language” abrogating States' immunity.
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 56 (1996)
(internal quotation marks omitted). That said, the line be-
tween “plan-of-the-Convention waiver” and “congressional
abrogation” is a murky one. Both inquiries ask the same
basic question: whether Congress has authorized suit against
a nonconsenting State pursuant to “a valid exercise of consti-
tutional authority.” Kimel v. Florida Bd. of Regents, 528
U. S. 62, 78 (2000); see also Katz, 546 U. S., at 379 (asking
whether Congress' decision to bind States to discharge or-
ders in bankruptcy proceedings is “within the scope of its
power to enact `Laws on the subject of Bankruptcies' ”).
And both inquiries center on “history, practice, precedent,
and the structure of the Constitution,” Alden, 527 U. S., at
741, to determine whether the Constitution either grants au-
thority to Congress to abrogate immunity or strips States of
their immunity on its own.
The parties agree that this case involves only plan-of-
the-Convention waiver. Thus, the question presented is
whether, in ratifying the Constitution, the States surren-
dered their immunity in their own courts against private
damages actions authorized by Congress' war powers.
II
In answering that question, the Court discounts two im-
portant points. First, it creates a constitutional problem by
adopting a questionable interpretation of USERRA that as-
sumes Congress intended to legislate with indifference to
States' state-law immunity. Second, the Court cannot
escape the fact that Alden already answered the question
presented and held that the States did not surrender their
state-court immunity when ratifying Article I of the
Constitution.
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605
Thomas, J., dissenting
A
W
hen it was originally enacted, USERRA authorized cov-
ered employees to sue States in federal district court. See
38 U. S. C. § 4323(b) (1994 ed.). In 1996, this Court decided
Seminole Tribe, holding that Congress could not abrogate
state sovereign immunity in federal courts using its Article
I powers. See 517 U. S., at 72–73. In response to Seminole
Tribe, Congress amended USERRA in 1998, and the statute
now provides: “In the case of an action against a State (as
an employer) by a person, the action may be brought in a
State court of competent jurisdiction in accordance with the
laws of the State.” § 4323(b)(2) (emphasis added).
USERRA's requirement that employee damages actions
be “in accordance with the laws of the State” would seem to
include a State's “laws” that render it immune from suit in
the State's own courts, as well as any “laws” that expressly
waive such immunity. See, e. g., Tex. Govt. Code Ann.
§ 311.034 (West 2013); Prairie View A & M Univ. v. Chatha,
381 S. W. 3d 500, 512 (Tex. 2012). In other words, there is
nothing in the text of USERRA necessarily implying that
Congress intended to require nonconsenting States to de-
fend themselves in their own courts.
1
The Court, however,
1
To be sure, if USERRA authorizes suits in state courts only “in accord-
ance with the laws of the State,” the ability to bring such actions would
vary by State—some States would consent to suit, others would not, and
still others would be amenable to suit under the Supremacy Clause because
their state courts were authorized to hear analogous state-law actions
against the State. See, e. g., Testa v. Katt, 330 U. S. 386, 394 (1947). But
there is nothing strange about that lack of uniformity; in fact, a House Sub-
committee considering the effect of Seminole Tribe of Fla. v. Florida, 517
U. S. 44 (1996), on USERRA heard testimony suggesting that might be how
things worked if covered employees sued in state courts. See Hearing
on USERRA et al. before the Subcommittee on Education, Training, Em-
ployment and Housing of the House Committee on Veterans' Affairs, 104th
Cong., 2d Sess., 90 (1996) (explaining that “the rights of state employees
to recover under the USERRA might vary from state to state”).
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
breezes past USERRA's language to conclude that the stat-
u
te “authoriz[es] private litigation against noncompliant
state employers that do not wish to consent to suit.” Ante,
at 587.
2
To be clear, I am not disputing whether USERRA speaks
clearly enough to express a congressional intent to “abro-
gate” the States' sovereign immunity in their own courts;
plan-of-the-Convention waiver asks whether the States sur-
rendered that immunity when the Constitution was ratifed
and thus “agreed . . . not to assert that immunity” in particu-
lar contexts. Katz, 546 U. S., at 373. But even if the Con-
stitution itself partially strips state sovereign immunity, it
would still fall to Congress to decide whether, and on what
terms, to render States amenable to suit, or to permit States
to assert immunity. Cf. id., at 379 (“Congress may, at its
option, either treat States in the same way as other creditors
insofar as concerns `Laws on the subject of Bankruptcies' or
exempt them from the operation of such laws”).
The Court should not casually consider the constitutional-
ity of USERRA's supposed subjection of nonconsenting
States to damages actions in state court when it is not clear
the statute does any such thing. By doing so, the Court
gives short shrift to the “well-established principle govern-
ing the prudent exercise of this Court's jurisdiction that nor-
mally the Court will not decide a constitutional question if
there is some other ground upon which to dispose of the
case.” Northwest Austin Municipal Util. Dist. No. One v.
2
The Court invokes 38 U. S. C. § 4302(b) to bolster its interpretation of
§ 4323, see ante, at 595, but that provision supersedes only those state laws
that abridge the “right[s]” and “beneft[s]” defned in § 4303(2). § 4302(b).
Those “rights and benefts” are “all substantive rights”; they do not “deal
with the procedure or process for enforcing those rights and benefts.”
Wysocki v. International Bus. Machine Corp., 607 F. 3d 1102, 1106–1107
(CA6 2010). Meanwhile, § 4323 clearly applies to procedure and process
and its plain text—“in accordance with the laws of the State”—gives no
hint that Congress meant to supersede state laws governing state sover-
eign immunity in state courts.
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607
Thomas, J., dissenting
Holder, 557 U. S. 193, 205 (2009) (internal quotation marks
omitted).
B
H
aving interpreted USERRA to render nonconsenting
States amenable to suit, the Court goes on to distinguish
Alden v. Maine without any plausible basis for doing so. In
truth, Alden directly controls this case.
In Alden, a group of private plaintiffs sued the State of
Maine in state court, invoking a private cause of action cre-
ated by the Fair Labor Standards Act (FLSA). See 527
U. S., at 711–712. The question presented was “whether
Congress has the power, under Article I, to subject noncon-
senting States to private suits in their own courts.” Id., at
730. In a detailed opinion, the Court in Alden held—with-
out qualifcation—that the States had not consented in the
plan of the Convention to any congressionally created pri-
vate damages actions in state court.
To begin, Alden framed its inquiry around plan-of-the-
Convention waiver, not congressional abrogation: “In exer-
cising its Article I powers Congress may subject the States
to private suits in their own courts only if there is compelling
evidence that the States were required to surrender this
power to Congress pursuant to the constitutional design”—
i. e., in the plan of the Convention. Id., at 730–731 (emphasis
added; internal quotation marks omitted); see also ante, at
587. In determining whether such evidence existed, Alden
began with the text of the Constitution. See 527 U. S., at
731. It recognized that Article I, § 8, “grants . . . Congress
broad powers to enact legislation in several enumerated
areas of national concern”—including, of course, the war
powers. Ibid. But neither the breadth of those powers nor
their connection to “areas of national concern” suffced to
show that States ratifed the Constitution with the under-
standing that they had surrendered to Congress any power
to authorize private damages actions against them in their
own courts. See id., at 731–733.
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
Alden spoke emphatically and categorically when explain-
i
ng why the States had effected no such surrender. We
found it telling that “no one, not even the Constitution's most
ardent opponents, suggested the document might strip the
States of the[ir] immunity” from suit “in their own courts.”
Id., at 741. That was likely because “the sovereign's right
to assert immunity from suit in its own courts was a principle
so well established that no one conceived it would be altered
by the new Constitution.” Ibid. (emphasis added). We ex-
plained how the founding generation's concern that “Article
III might be used to circumvent state-court immunity” coun-
seled against “infer[ring] that the Constitution stripped the
States of immunity in their own courts and allowed Congress
to subject them to suit there.” Id., at 743. Rather, in light
of the historical record, we found it “diffcult to conceive that
the Constitution would have been adopted if it had been un-
derstood to strip the States of immunity from suit in their
own courts and cede to the Federal Government a power to
subject nonconsenting States to private suits in these fora.”
Ibid.
Importantly, the scope of Alden's holding was broad: “We
hold that the powers delegated to Congress under Article I
of the United States Constitution do not include the power
to subject nonconsenting States to private suits for damages
in state courts.” Id., at 712; see also id., at 754. That hold-
ing plainly applied to all Article I powers. Thus, we did not
engage in a clause-by-clause parsing of Article I's various
powers, nor did we even mention which Article I power au-
thorized the FLSA. It did not matter because the States
would not have surrendered to Congress any of the immu-
nity they enjoyed in their own courts.
Finally, concluding its analysis, Alden contrasted the
States' amenability to suit “by the United States on behalf
of the employees” with a suit “by the employees” themselves,
holding that “history, precedent, and the structure of the
Constitution make clear that, under the plan of the Conven-
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609
Thomas, J., dissenting
tion, the States have consented to suits of the frst kind but
not
of the second.” Id., at 759–760 (emphasis added).
3
The
question that Alden answered plainly embraces the one that
the Court answers today. And there is no serious dispute
that Al den's expl icit holding is irreconci lable w ith the
Court's holding here.
***
Until today, Alden meant what it said. Both Katz and
PennEast considered plan-of-the-Convention waivers appli-
cable to federal, not state, court. See Katz, 546 U. S., at
360; PennEast, 594 U. S., at –––. Nothing in those decisions,
therefore, undermined Alden's categorical holding.
4
It is
3
The Court ignores all of this and instead invokes inapposite language
elsewhere in Alden. For instance, the Court emphasizes that Alden ex-
pressly recognized “ `the postulate that States . . . shall be immune from
suits, without their consent, save where there has been “a surrender of
this immunity in the plan of the convention.” ' ” Ante, at 597 (quoting
Alden, 527 U. S., at 730). That is true enough, but beside the point.
After stating this “postulate,” Alden exhaustively evaluated constitutional
history, precedent, and structure and expressly held that the States,
“under the plan of the Convention, . . . have [not] consented to suits” fled
by private individuals in state court. Id., at 759–760 (emphasis added).
4
The Court asserts that “those opinions' reasoning . . . is not so limited”
to render them inapplicable to state courts. Ante, at 597. But the rea-
soning in Katz is necessarily limited to federal courts, given that federal
district courts have “original and exclusive jurisdiction” over all bank-
ruptcy proceedings under Title 11. 28 U. S. C. § 1334(a). Nor is it proba-
ble that PennEast silently carved an exception from Alden's categorical
rule. The Framers did not even think to address state sovereign immu-
nity in state courts because “the sovereign's right to assert immunity from
suit in its own courts was a principle so well established that no one con-
ceived it would be altered by the new Constitution.” Alden, 527 U. S.,
at 741. We should not read PennEast to establish, without discussion,
something inconceivable to the founding generation. See 527 U. S., at 743.
Similarly unconvincing is the Court's assumption that “waiver pursuant
to the plan of the Convention,” necessarily “displaces the background prin-
ciples of state sovereign immunity wherever those suits proceed.” Ante,
at 598. For instance, we have held that “the only forums in which the
States have consented to suits by one another and by the Federal Govern-

610 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
only the Court's holding today that does so. I would adhere
to
Alden and reaffrm that the States did not surrender the
immunity applicable in their own courts when they delegated
the enumerated powers—including the war powers—to Con-
gress in Article I. And, because Torres has not invoked a
waiver of immunity under state law, I would affrm the judg-
ment of the Texas Court of Appeals.
III
Even if Alden's holding were not alone dispositive, thus
requiring us to consider our “plan of the Convention” prece-
dents applicable to private actions in federal court, I would
still conclude that the States have not waived their immunity
to private damages actions authorized by the war powers.
Our settled test for plan-of-the-Convention waiver is a
stringent one: We cannot infer a waiver of sovereign immu-
nity unless there is “compelling evidence that the Founders
thought such a surrender inherent in the constitutional com-
pact.” Blatchford, 501 U. S., at 781; see also Alden, 527
U. S., at 731. “Compelling evidence” of this sort includes
“evidence of the original understanding of the Constitution,”
id., at 741, “early congressional practice,” id., at 743, “the
structure of the Constitution” itself, id., at 748, and the “the-
ory and reasoning of our earlier cases,” id., at 745; see also
id., at 754.
Applying this test, it is clear that the States did not implic-
itly agree to surrender their state-court immunity against
congressional exercises of the war powers.
A
Torres claims (and the Court agrees) that the original un-
derstanding of the Constitution's text implies that the States
ment are Article III courts.” Franchise Tax Bd. of Cal. v. Hyatt, 587
U. S. –––, ––– (2019) (emphasis added). A surrender of immunity in fed-
eral court therefore does not necessarily translate to a surrender of immu-
nity in state court.
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611
Thomas, J., dissenting
agreed to surrender their immunity against private actions
author
ized by Congress' “war powers,” which include eight
powers enumerated in Article I, § 8, along with the Neces-
sary and Proper Clause. See Brief for Petitioner 4 (invok-
ing Art. I, § 8, cls. 1, 10–16, 18); see also ante, at 590 (listing
Art. I, § 8, cls. 1, 11–16). In support of that argument, Tor-
res and the Court point out that the war powers delegated
to Congress are sweeping, and that Article I, § 10, expressly
and completely divests States of various war-related powers.
See ante, at 590; Brief for Petitioner 24. This argument fal-
ters on at least two fronts.
First, Seminole Tribe long ago explained that the breadth
and exclusivity of a federal power does not authorize Con-
gress to subject nonconsenting States to private damages
actions. Seminole Tribe involved a federal cause of action
created pursuant to Congress' authority under the Indian
Commerce Clause, see 517 U. S., at 60, which this Court has
said grants Congress “ `plenary and exclusive' ” “powers to
legislate in respect to Indian tribes,” United States v. Lara,
541 U. S. 193, 200 (2004). Although Seminole Tribe recog-
nized that States had been “divested of virtually all author-
ity over Indian commerce and Indian tribes,” 517 U. S., at
62, the Court nonetheless held that “state sovereign immu-
nity . . . is not so ephemeral as to dissipate when the subject
of the suit is an area . . . that is under the exclusive control of
the Federal Government,” id., at 72. That “the Constitution
vests in Congress complete lawmaking authority over a par-
ticular area,” we explained, does not implicitly authorize
Congress to abrogate immunity with respect to that power.
Ibid.
5
5
It is true that Seminole Tribe purportedly addressed congressional
abrogation of sovereign immunity, rather than plan-of-the-Convention
waiver. But its logic applies equally to the latter context, especially given
the murky line that our precedents draw between the two concepts. See
supra, at 603–604.
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612 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
Nor is the answer different when the exclusive federal ex-
ercise
of a particular power is reinforced by an explicit di-
vestment of state authority under Article I, § 10. Our prec-
edents teach that whenever a power is “exercised exclusively
by Congress, the subject is as completely taken from the
State Legislatures, as if they had been expressly forbidden
to act on it.” Sturges v. Crowninshield, 4 Wheat. 122, 193
(1819) (Marshall, C. J., for the Court) (emphasis added).
Whether or not a prohibition on state power also appears
in Article I, § 10, is irrelevant when deciding whether the
Constitution has granted Congress power to subject noncon-
senting States to private suits.
Second, even if express textual divestment of state power
were relevant, Torres and the Court incorrectly conclude
that the specifc divestments listed in Article I, § 10, “provide
strong evidence” supporting “a complete delegation of au-
thority to the Federal Government to provide for the com-
mon defense.” Ante, at 590. States obviously have no au-
thority to take certain actions specifed in Article I, § 10.
They cannot, for example, “keep Troops, or Ships of War in
time of Peace . . . unless actually invaded, or in such immi-
nent Danger as will not admit of delay” without the consent
of Congress. Art. I, § 10, cl. 3. But to say that Congress'
much more general authority to “raise and support Armies,”
Art. I, § 8, cl. 12, acts to completely derogate all state author-
ity related to the subject is inaccurate.
States have signifcant residual police powers that overlap
with Congress' power over the military. For example, we
have sustained state legislation related to the enlistment of
men in the U. S. Army and Navy against the charge that
“ `all power of legislation regarding the subject matter . . .
is conferred upon Congress and withheld from the States.' ”
Gilbert v. Minnesota, 254 U. S. 325, 327–328 (1920). In
doing so, we rejected the idea “that a State has no interest
or concern in the United States or its armies or power of
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613
Thomas, J., dissenting
protecting them from public enemies,” and eschewed any
“
[c]old and technical reasoning ” that “insist[s] on a separa-
tion of the sovereignties” in the army-raising context. Id.,
at 328–329. Similarly, we have held that “there is no clause
of the Constitution which purports, unaided by Congres-
sional enactment, to prohibit” States from exercising their
police powers in ways that arguably burden Congress'
“power to raise and support armies.” Penn Dairies, Inc. v.
Milk Control Comm'n of Pa., 318 U. S. 261, 269 (1943). Nor
have we “implied from the relationship of the two govern-
ments established by the Constitution” any such prohibition.
Ibid. State regulations “inevitably impos[e] some burdens
on the national government,” but those are the “normal inci-
dents of the operation within the same territory of a dual
system of government,” and they may persist “save as Con-
gress may act to remove them.” Id., at 271. Therefore,
even though the Army and Navy Clauses grant Congress
“exclusive” authority over raising and supporting armies and
navies, that exclusivity is no different from that which at-
tends any other Article I power.
To nonetheless fnd plan-of-the-Convention waiver, as Tor-
res proposes and the Court accepts, is to hold that a congres-
sional power to pre-empt state law alone demonstrates a
State's surrender of sovereign immunity. That line of rea-
soning, apart from being foreclosed by Seminole Tribe,
proves too much. The upshot is that the States would have
consented in the plan of the Convention to surrender their
immunity against the exercise of any Article I power. Be-
cause such a result is a dramatic departure from our prece-
dents, and the power granted to Congress under the Army
and Navy Clauses does not displace state regulation any
more readily or completely than other Article I powers,
these arguments from constitutional text provide no sound
basis for authorizing private actions against nonconsenting
States.
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614 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
B
Constituti
onal history and practice do Torres and the
Court no better. To begin, we must view the historical evi-
dence in light of the “presumption that no anomalous and
unheard-of proceedings or suits were intended to be raised
up by the Constitution.” Hans, 134 U. S., at 18; see also
Alden, 527 U. S., at 727. Applying that presumption, the
Court in the past has “attribute[d] great signifcance” to the
absence of analogous suits “at the time of the founding or for
many years thereafter.” Federal Maritime Comm'n, 535
U. S., at 755.
6
Moreover, the presumption is arguably at its
strongest here, for private damages actions were precisely
“the type of proceedings from which the Framers would
have thought the States possessed immunity.” Id., at 756.
The Framers would have “thought it an impermissible af-
front to a State's dignity” to require it “to defend itself in
an adversarial proceeding against a private party.” Id., at
760–761.
To overcome that presumption, Torres and the Court in-
voke some historical sources that generally discuss the scope
and importance of Congress' war-related powers. See Brief
for Petitioner 26–37; ante, at 591–592. But virtually none of
them addresses directly the central question here: whether
the States understood that they had surrendered their sover-
6
It is true that the Court in PennEast Pipeline Co. v. New Jersey, 594
U. S. ––– (2021), found plan-of-the-Convention waiver even in “the absence
of a perfect historical analogue” to private condemnation suits by federal
delegatees against States. Id., at –––. But PennEast excused this ab-
sence of historically analogous actions because it refused to “divorce the
eminent domain power from the power to bring condemnation actions,”
given that “the eminent domain power is inextricably intertwined with
the ability to condemn,” and “the federal eminent domain power was a
means that was `known and appropriate' at the time of the founding.”
Id., at ––– – –––, –––. Thus, the PennEast holding turned on the unique
connection between the eminent domain power, the ability to initiate con-
demnation proceedings, and the long history of Congress delegating its
eminent domain to private parties. See also in fra, at 618–620.
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615
Thomas, J., dissenting
eign immunity from suit in their own courts when delegating
those
powers to Congress. Instead, the founding-era his-
tory is largely silent on this question, and that “silence is
most instructive” in confrming that “no one conceived that
[state sovereign immunity] would be altered by the new Con-
stitution['s]” distribution of war powers. Alden, 527 U. S.,
at 741. “[T]he Founders' silence is best explained by the
simple fact that no one . . . suggested the document might strip
the States of [their] immunity” under the war powers. Ibid.
More specifcally, Torres (but not the Court) points to the
1783 Treaty of Paris. He maintains that private actions
would not have been anomalous to the Founders because
they expected British creditors to sue States under the
treaty in order to collect on their debts. See Brief for Peti-
tioner 27–31. But it is not likely that the Founders did, in
fact, expect foreign creditor suits against States; “it is more
likely that they expected creditors to sue their individual
debtors and rely on the Treaty to defeat any state law de-
fenses.” B. Clark, The Eleventh Amendment and the Na-
ture of the Union, 123 Harv. L. Rev. 1817, 1910 (2010). And
when the Eleventh Amendment was adopted “to restore the
original constitutional design” after Chisholm v. Georgia, 2
Dall. 419 (1793), Alden, 527 U. S., at 722, Congress refused
“to make an exception for cases arising under treaties made
under the authority of the United States,” id., at 721 (inter-
nal quotation marks omitted). “Congress' refusal to modify
the text of the Eleventh Amendment to create an exception
to sovereign immunity for cases arising under treaties” sug-
gests that the States' immunity from private-party litigation
extended even to treaty-based claims. Id., at 735; see also
D. Currie, The Constitution in Congress: The Federalist Pe-
riod 1789–1801, p. 197 (1997).
Early congressional practice accords with the Framers' as-
sumption that Congress could not use any Article I power to
subject the States to private damages actions in their own
courts. In fact, we already have “discovered no instance

616 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
in which [early Congresses] purported to authorize suits
agai
nst nonconsenting States in [state courts].” Alden, 527
U. S., at 744. Contrasted against the numerous statutes
authorizing other federal suits in state courts, it “appears
early Congresses did not believe they had the power to au-
thorize private suits against the States in their own
courts.” Ibid.
C
Constitutional structure also cuts decisively against infer-
ring a surrender of state sovereign immunity in this context.
See id., at 748–754.
First and most fundamentally, all private suits against
nonconsenting States present “ `the indignity of subjecting a
State to the coercive process of judicial tribunals at the in-
stance of private parties.' ” Id., at 749 (quoting In re Ayers,
123 U. S. 443, 505 (1887)). USERRA's cause of action is
uniquely offensive to the States' dignity because it purports
“to press a State's own courts into federal service to coerce
the other branches of the State,” thereby “turn[ing] the
State against itself ” and “commandeer[ing] the entire politi-
cal machinery of the State against its will and at the behest
of individuals.” Alden, 527 U. S., at 749. That kind of “ple-
nary federal control of state governmental processes deni-
grates the separate sovereignty of the States.” Ibid.
Second, congressional authorization of private damages ac-
tions “threaten[s] the fnancial integrity of the States.” Id.,
at 750. It can “create staggering burdens” and give “Con-
gress a power and a leverage over the States that is not
contemplated by our constitutional design.” Ibid.
Third, representative government itself is jeopardized
when “deliberation by the political process established by
the citizens of the State” is replaced with “judicial decree
mandated by the Federal Government and invoked by the
private citizen. ” Id., at 751. Political accountability—
“essential to our liberty and republican form of govern-
ment”—breaks down when “the Federal Government asserts
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617
Thomas, J., dissenting
authority over a State's most fundamental political proc-
esses.
” Ibid.
7
Notwithstanding these countervailing structural concerns,
both Torres and the Court think that constitutional structure
supports fnding plan-of-the-Convention waiver because con-
frming States' sovereign immunity in their own courts
would supposedly threaten the Federal Government's
“power to wage war successfully” and jeopardize the Na-
tion's safety. Ante, at 594 (quoting Lichter v. United States,
334 U. S. 742, 780 (1948); internal quotation marks omitted);
Brief for Petitioner 26. But this argument confates the
preservation of state sovereign immunity with a license to
interfere with federal warmaking. As we already cautioned
in Alden, “[t]he constitutional privilege of a State to assert
its sovereign immunity in its own courts does not confer
upon the State a concomitant right to disregard the Constitu-
tion or valid federal law.” 527 U. S., at 754–755.
For example, the Court notes that early Congresses “es-
tablished military bonuses to reward service, even requiring
Virginia to give land to some Revolutionary War offcers.”
Ante, at 592 (citing Act of Aug. 10, 1790, ch. 40, 1 Stat. 182).
8
7
These unique structural dangers posed by granting the Federal
Government authority to turn the State against itself again show why
the Court errs in concluding that precedents concerning plan-of-the-
Convention waivers applicable to suits in federal court necessarily support
waivers of immunity from suit in state court. See ante, at 598; see also
n. 4, supra.
8
The Court's characterization of the Act of Aug. 10, 1790, as “requiring
Virginia to give land to some Revolutionary War offcers” “at the expense
of state sovereignty,” ante, at 592, is deeply misleading. Virginia had
ceded the relevant lands to the United States in 1784, but conditionally
reserved some of it for the State's Revolutionary War soldiers. See Wal-
lace v. Parker, 6 Pet. 680, 687 (1832) (Marshall, C. J., for the Court). The
1790 Act opened up the ceded land to those soldiers, and provided that the
Secretary of War would send the Virginia Governor the names of those
soldiers who were entitled to the land under Virginia law. See § 2, 1 Stat.
183. The 1790 Act also provided that the land would be surveyed, that
the Executive Branch would draw up land patents for eligible soldiers, and
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618 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
It asks, incredulously, “Could Virginia have refused to go
a
long?” Ante, at 592. But that question is a non sequitur.
No one disputes “the supremacy of federal power in the area
of military affairs.” Perpich v. Department of Defense, 496
U. S. 334, 351 (1990). Instead, all agree that the United
States could lawfully sue Virginia in federal court to secure
an injunction requiring it to comply with federal law. In
fact, USERRA already authorizes suits by the United States
to enforce USERRA's requirements. § 4323(a)(1). And even
if private suits were necessary to enforce the federal scheme,
individuals could still sue in equity to enjoin state offcials
from violating federal law, see Ex parte Young, 209 U. S. 123
(1908), or, if Congress authorizes it, pursue damages actions
against such state offcials in their individual capacities, see,
e. g., Rev. Stat. § 1979, 42 U. S. C. § 1983. Ultimately, if the
Court reaffrmed Texas' sovereign immunity, “[e]stablished
rules provide ample means to correct ongoing violations of
law and to vindicate the interests which animate the Su-
premacy Clause.” Alden, 527 U. S., at 757.
D
Finally, our precedents do not support fnding a surrender
of state sovereign immunity here. As explained above,
Alden is the most on-point precedent—and, in fact, our only
recent precedent discussing States' immunity from suit in
their own courts. It therefore disposes of this case. Nei-
ther Katz nor PennEast supports a different result.
Katz found plan-of-the-Convention waiver based on the
“singular nature” of bankruptcy jurisdiction and “the Bank-
ruptcy Clause's unique history.” 546 U. S., at 369, n. 9. As
that the Secretary of State would transmit those patents to the Virginia
Governor who would, in turn, deliver the patents to the grantees. See
§§ 4–6, id., at 183–184. At most, the 1790 Act required the Virginia Gov-
ernor only to deliver advantageous federal land patents to the State's own
soldiers. How that statute was enacted “at the expense of state sover-
eignty,” ante, at 592, is beyond me.
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619
Thomas, J., dissenting
the Court later explained, Katz “viewed bankruptcy as on a
di
fferent plane, governed by principles all its own,” and noth-
ing in its analysis “invites the kind of general, clause-by-
clause reexamination of Article I” that the Court endorses
today. Allen v. Cooper, 589 U. S. –––, ––– (2020) (internal
quotation marks omitted).
For its part, PennEast emphasized several factors unique
to the eminent domain context. First, PennEast discussed
the Federal Government's long history of exercising the
power of eminent domain—including its delegation of that
power to private parties to take property within state
boundaries. See 594 U. S., at –––. Here, there is a long his-
tory showing that the Federal Government exercised its war
powers, but there is no comparable history of the Federal
Government using those powers to impose fnancial liabilities
on States enforceable by private parties. Nor is there any
evidence demonstrating that any kind of judicial proceed-
ings—let alone private damages actions—are “inextricably
intertwined” with the war powers in the way that judicial
condemnation actions are intertwined with eminent domain.
See n. 6, supra.
Second, PennEast emphasized that the Constitution vests
the Federal Government “ `with full and complete power to
execute and carry out its purposes' ”—including the power
of eminent domain—and that history shows that the Govern-
ment may exercise that sovereign power through private
delegatees. 594 U. S., at –––. Here, there is no argument
that employees granted a cause of action under USERRA
are “delegatees” of the war powers in any meaningful sense.
Third, PennEast reasoned that recognizing New Jersey's
immunity claim would require federal delegatees to take
state property, thereby forcing States to fle inverse condem-
nation actions for just compensation. See id., at –––. The
Court did not think that kind of arrangement “would vindi-
cate the principles underlying state sovereign immunity,” in-
cluding the principle of affording States “the respect owed
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620 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
them as joint sovereigns.” Ibid. (internal quotation marks
omitted).
Here, by contrast, there is no sense in which con-
frming Texas' immunity would similarly undermine the
principles underlying that immunity.
***
In the end, the “history, practice, precedent, and the struc-
ture of the Constitution” all demonstrate that States did not
surrender their sovereign immunity in their own courts
when Congress legislates pursuant to one of its war powers.
Alden, 527 U. S., at 741, 754.
IV
The Court nevertheless holds that States surrendered
their sovereign immunity for any congressional causes of ac-
tion passed pursuant to Article I's Army and Navy Clauses.
Ante, at 594.
9
To reach that conclusion, the Court adopts a
test that even Torres did not press. Relying exclusively on
PennEast, the Court maintains that plan-of-the-Convention
waiver distills to a single question: whether the federal
power at issue is “ `complete in itself.' ” Ante, at 589 (quot-
ing PennEast, 594 U. S., at –––). If so, then the States have
surrendered their sovereign immunity against any exercises
9
Although the Court lists the panoply of congressional “war powers”
that Torres invokes, see ante, at 590, it appears to limit its holding today
only to the Army and Navy Clauses, see ante, at 594. In addition, al-
though the Court's “complete in itself ” inquiry is unsound, see in fra, at
621–628, its opinion at least suggests that plan-of-the-Convention waiver
may be found only if (1) the Constitution includes “many broad, interre-
lated provisions” delegating the relevant power to the Federal Govern-
ment, ante, at 590; (2) the Constitution expressly “divests the States of
like power” in Article I, § 10, ante, at 590; and (3) the power at issue is
“essential to the survival of the Union” and is “itself a foundational pur-
pose” for abandoning the Articles of Confederation and “drafting the Con-
stitution,” ante, at 596. Until the Court jettisons this erroneous decision
from its doctrine, plan-of-the-Convention waiver would appear to exist
only under those circumstances.

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as: 597 U. S. 580 (2022)
621
Thomas, J., dissenting
of that power. After framing the inquiry this way, the
Cour
t concludes that because Congress' “power to build and
maintain the Armed Forces” is “ `complete in itself,' ” States
necessarily relinquished their sovereign immunity against
private damages actions authorized by that power. Ante, at
590, 594.
In my view, the Court is asking the wrong question. It
unjustifably asserts that the entire plan-of-the-Convention
inquiry rests on whether a power is “complete in itself.”
Further, its “complete in itself ” standard misreads Penn-
East, which suggested only that because the federal eminent
domain power was “complete in itself ” and, by its nature,
“inextricably intertwined” with judicial condemnation pro-
ceedings, States surrendered any sovereign immunity that
would otherwise render the eminent domain power incom-
plete. PennEast, 594 U. S., at –––. By saddling “complete-
ness” with more analytical weight than it can bear, the Court
has devised a method that has the certainty and objectivity
of a Rorschach test. Beyond its inconsistency with Penn-
East, this contrivance also threatens to rework or erase the
Court's prevailing sovereign immunity jurisprudence.
A
The sentence in PennEast upon which the Court fabricates
its test for plan-of-the-Convention waiver reads as follows:
“[T]he federal eminent domain power is `complete in itself,'
and the States consented to the exercise of that power—in
its entirety—in the plan of the Convention.” 594 U. S.,
at ––– (quoting Kohl v. United States, 91 U. S. 367, 374 (1876);
citation omitted). The Court today claims that this sentence
in PennEast reduced our decades-old State sovereign immu-
nity jurisprudence to merely asking whether a federal power
is “complete in itself.” That cannot be correct.
The Court in PennEast borrowed the “complete in itself ”
idea from Kohl, which had approved the Federal Govern-
ment's condemnation of private land to build a post offce in
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622 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
Cincinnati, Ohio. 91 U. S., at 373–374. Although the Fed-
era
l Government had relied on Ohio's eminent domain power,
rather than its own, Kohl made clear that the Federal Gov-
ernment's authority to condemn land did not depend upon
state law. In doing so, Kohl stated that “[i]f the United
States have the [eminent domain] power, it must be complete
in itself.” Id., at 374. “It can neither be enlarged nor
diminished by a State. Nor can any State prescribe the
manner in which it must be exercised. The consent of a
State can never be a condition precedent to its enjoyment.”
Ibid.
Before PennEast, the phrase “complete in itself ” never ap-
peared in our modern state sovereign immunity precedents.
PennEast itself invoked the concept for one purpose: to re-
ject the contention that one could “[s]eparat[e] the eminent
domain power from the power to condemn”—i. e., to dis-
aggregate those “inextricably intertwined” powers—when
determining whether the history of federal eminent domain
supported fnding a waiver of state sovereign immunity.
594 U. S., at –––. According to PennEast, to deprive the
Federal Government of a power to condemn property in judi-
cial proceedings brought by private delegatees would be tan-
tamount to depriving the Government of part of the eminent
domai n power itself, contrary to Koh l's charac ter i za-
tion of that power as “complete in itself.” 594 U. S.,
at ––– – –––.
The Court today errs by attributing to Kohl an outsized
role in PennEast's sovereign immunity analysis. The Court
in PennEast never stated that “completeness in itself ” rep-
resented the governing test for plan-of-the-Conventi on
waiver. Likewise, PennEast made no effort to explain how
the “complete in itself ” inquiry would work beyond the con-
text of eminent domain. And because PennEast did not in-
voke Kohl to break new doctrinal ground, the Court made
no attempt to reconcile the “complete in itself ” inquiry with
this Court's longstanding sovereign immunity precedents
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623
Thomas, J., dissenting
(e. g., Alden, Seminole Tribe, Federal Maritime Comm'n,
H
ans, etc.). Again, if PennEast had made “completeness in
itself ” the applicable test, surely the Court would have
discussed the concept more thoroughly.
The Court compounds its overreading of PennEast's “com-
plete in itself ” language by unjustifably dismissing Penn-
East's “inextricably intertwined” rationale as a mere “tech-
nical aspect” of the decision. Ante, at 598. PennEast is best
read to stand for the proposition that, because every federal
power must be “complete in itself,” the States surrendered
their sovereign immunity with respect to any federal power
that is “inextricably intertwined” with judicial proceedings,
like eminent domain; otherwise, sovereign immunity would
excuse the States from the judicial proceeding and the fed-
eral power would be incomplete. PennEast, 594 U. S.,
at ––– – ––– (linking completeness of eminent domain power
to condemnation proceedings). Yet, now, the Court aban-
dons the only limiting principle in PennEast's test.
10
That is mistaken. To begin with, disaggregating the
“complete in itself ” standard from PennEast's “inextricably
intertwined” justifcation renders meaningless the idea of
“completeness” in the context of state sovereign immunity.
Consider the Court's opinion here, which says that any fed-
eral power “complete in itself ” must be accompanied with a
surrender of state sovereign immunity. The Court does not
defne what it means for a federal power to be “complete in
itself,” except that “ `the States consented to the exercise of
that power—in its entirety—in the plan of the Convention.' ”
Ante, at 589 (quoting PennEast, 594 U. S., at –––). But that
self-referential defnition begs the question. If the Court
tied the “completeness” of a federal power to an inherent
connection with judicial proceedings, it could give the term
10
My “quarrel” therefore does not “li[e] with PennEast,” ante, at 596,
but with the Court's decision today to convert PennEast's “complete in
itself ” language into an all-encompassing sovereign-immunity test that is
divorced from PennEast's “inextricably intertwined” principle.
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v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
independent meaning and make sense of PennEast's actual
ana
lysis.
Worse still, today's decision removes the one important
guardrail on the “completeness” inquiry that PennEast de-
scribed. Absent that limit, the Court's indefnite test will
provide future courts cover to further erode the States' sov-
ereign immunity.
B
To the extent that the Court's new “complete in itself ”
standard has any defnable contours, it is inconsistent with
our modern sovereign immunity doctrine and, in particular,
Seminole Tribe.
As I noted above, the Court does not defne what it means
for a federal power to be “complete in itself ” under Penn-
East and Kohl. All we are told is that eminent domain and
the powers to raise and support armies and navies are pow-
ers “complete” in themselves. See ante, at 589, 594.
The Court's “completeness” standard is indeterminate in
large part because the Court fails to recognize that the con-
cept of a federal power being “complete in itself ” long pre-
dates Kohl and means something quite different from what
the Court says it does. In fact, the phrase's provenance in
our jurisprudence dates back to no less seminal a decision
than Chief Justice Marshall's opinion in Gibbons v. Ogden, 9
Wheat. 1 (1824). There, the Court stated that Congress'
power “[t]o regulate Commerce with foreign Nations, and
among the several States,” U. S. Const., Art. I, § 8, cl. 3, “like
all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limita-
tions, other than are prescribed in the constitution,” 9
Wheat., at 196 (emphasis added).
Gibbons' discussion is revealing. First, unlike the Court's
decision today, which attempts to cabin congressional powers
that are “complete in themselves” to only a few, Gibbons is
explicit that it considered every power vested in Congress
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as: 597 U. S. 580 (2022)
625
Thomas, J., dissenting
to be “complete in itself.” Ibid. That understanding would
explai
n why Kohl said that “[i]f the United States have the
power, it must be complete in itself.” 91 U. S., at 374 (em-
phasis added). Second, unlike the Court today, Gibbons de-
fnes what it means for a power to be complete in itself—
the power “may be exercised to its utmost extent” with “no
limitations” beyond those in Constitution itself. 9 Wheat.,
at 196. In other words, the power is plenary as to those
subjects to which it applies. See id., at 197.
Gibbons' understanding of a congressional power being
“complete in itself ” was repeated by this Court time and
time again for nearly two centuries. Almost always, the
Court used the term to refer to Congress' authority to regu-
late interstate and foreign commerce.
11
And, over time, the
Court confrmed that because Congress' power over inter-
state commerce “is plenary and complete in itself . . . [i]t
follows that no form of state activity can constitutionally
thwart the regulatory power granted by the commerce
clause to Congress.” United States v. Wrightwood Dairy
Co., 315 U. S. 110, 119 (1942); see also Wickard v. Filburn,
317 U. S. 111, 124 (1942). This language echoes Kohl's hold-
ing that the federal eminent domain power “can neither be
enlarged nor diminished by a State.” 91 U. S., at 374.
11
See, e. g., Brown v. Maryland, 12 Wheat. 419, 446 (1827) (Marshall,
C. J., for the Court) (a power “complete in itself ” is “coextensive with the
subject on which it acts”); Kidd v. Pearson, 128 U. S. 1, 17 (1888); Addys-
ton Pipe & Steel Co. v. United States, 175 U. S. 211, 228 (1899); Lottery
Case, 188 U. S. 321, 347 (1903); Second Employers' Liability Cases, 223
U. S. 1, 47 (1912); Hoke v. United States, 227 U. S. 308, 323 (1913); United
States v. Carolene Products Co., 304 U. S. 144, 147 (1938); United States v.
Darby, 312 U. S. 100, 114 (1941); Heart of Atlanta Motel, Inc. v. United
States, 379 U. S. 241, 254–255 (1964); Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264, 276 (1981); United States v. Lopez,
514 U. S. 549, 553 (1995); see also South Carolina v. Katzenbach, 383 U. S.
301, 327 (1966) (characterizing Congress' authority under § 2 of the Fif-
teenth Amendment as “ `complete in itself ' ”).
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Thomas, J., dissenting
Ignoring this long history about the very “completeness”
st
andard that it purports to apply, the Court grasps for some
basis to explain how its decision is consistent with this
Court's understanding of Congress' commerce power in Sem-
inole Tribe. It asserts that Congress' power under the
Army and Navy Clauses is somehow “complete in itself ”
while its power under the Commerce Clause is less than
“complete” because “federal regulation of commerce (at issue
in Seminole Tribe) involves goods that, before they travel
between States or outside a tribe, are subject to regulation
by a sovereign other than the Federal Government (a State
or tribe).” Ante, at 596.
But the Court's proposed distinction makes no sense. For
one, it conficts with the Court's longstanding characteriza-
tion of Congress' commerce power as plenary. See, e. g.,
Armour & Co. v. Virginia, 246 U. S. 1, 6 (1918). As long as
the goods mentioned by the Court are in fact part of “inter-
state commerce,” then Congress has authority to regulate
their travel at all times. For another, it does nothing to
distinguish Congress' commerce power from its power to
raise and maintain a military. Following the Court's logic,
one could just as easily say that Congress' power under the
Army and Navy Clauses is “less than complete” because
“federal regulation of soldiers involves men and women who,
before they join the military, are subject to regulation by a
sovereign other than the Federal Government.” Despite
the Court's efforts, its “completeness” analysis simply fails
to distinguish the Army and Navy Clauses from other Arti-
cle I powers delegated to Congress in the plan of the
Convention.
12
12
The Court also makes what appears to be an alternative argument.
Invoking Hamilton's discussion of state sovereignty in The Federalist, the
Court says that States surrendered their sovereign immunity where the
Constitution “ `granted an authority to the Union, to which a similar au-
thority in the States would be absolutely and totally contradictory
and repugnant.' ” Ante, at 587–588 (quoting The Federalist No. 32, p. 200
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as: 597 U. S. 580 (2022)
627
Thomas, J., dissenting
Most troubling, however, is the clear parallel between the
Cour
t's analysis today and the discredited approach to sover-
eign immunity that we rejected in Seminole Tribe. For ex-
ample, in Parden v. Terminal R. Co. of Ala. Docks Dept., 377
U. S. 184 (1964), the Court relied on Gibbons' “complete in
itself ” language to hold that “the States surrendered a por-
tion of their sovereignty when they granted Congress the
power to regulate commerce.” Id., at 191; see also id., at
192. Parden reasoned, not unlike the Court today, that
“[t]he sovereign power of the states is necessarily diminished
to the extent of the grants of power to the federal gov-
ernment in the Constitution,” and that granting Congress
“plenary power to regulate commerce” amounts to a sur-
render of immunity. Id., at 191 (internal quotation marks
omitted).
Similarly, in Pennsylvania v. Union Gas Co., 491 U. S. 1
(1989), the plurality emphasized how “[i]t would be diffcult
to overstate the breadth and depth of the commerce power,”
id., at 20, and how the “[t]he Commerce Clause with one hand
gives power to Congress while, with the other, it takes
(J. Cooke ed. 1961)). The Court then remarks, seemingly in dicta, that
“an assertion of state sovereignty to frustrate federal prerogatives to raise
and maintain military forces would be strongly `contradictory and repug-
nant' to the constitutional order.” Ante, at 596 (quoting The Federalist
No. 32, at 200). But that reasoning is hardly different from the argument
made by Justice Souter when he dissented in Seminole Tribe with respect
to the Indian Commerce Clause and Congress' exclusive authority in that
area. See 517 U. S., at 148 (“[S]ince the States have no sovereignty in
the regulation of commerce with the tribes, on Hamilton's view there is
no source of sovereign immunity to assert in a suit based on congressional
regulation of that commerce”). Similarly, the Court has often held that
Congress' power to regulate interstate and foreign commerce is also “ex-
clusive.” E. g., Cloverleaf Butter Co. v. Patterson, 315 U. S. 148, 154–155
(1942); Board of Trustees of Univ. of Ill. v. United States, 289 U. S. 48,
56–57 (1933). So again, the Court cannot explain how its interpretation
of Hamilton or its understanding of the war powers coheres with Seminole
Tribe and does not sweep in other Article I powers like the Commerce
Clause.

628 TORRES
v. TEXAS DEPARTMENT OF PUBLIC SAFETY
Thomas, J., dissenting
power away from the States,” id., at 16. In light of this dual
grant
of federal authority and divestment of state authority,
the plurality thought Congress' commerce power “would be
incomplete without the authority to render States liable in
damages.” Id., at 19 (emphasis added). To complete that
congressional power, the plurality reasoned that “to the ex-
tent that the States gave Congress the authority to regulate
commerce, they also relinquished their immunity where Con-
gress found it necessary, in exercising this authority, to ren-
der them liable.” Id., at 19–20.
We repudiated Parden and overruled Union Gas in Semi-
nole Tribe. See 517 U. S., at 66; see also College Savings
Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.,
527 U. S. 666, 683 (1999) (Seminole Tribe “expressly repudi-
ate[d]” Parden's theory of plan-of-the-Convention waiver).
Therefore, if Seminole Tribe was right, then the Court's de-
cision today is wrong. Hopefully, the Court will someday
purge the newly fashioned “completeness” standard from
our jurisprudence.
***
“Congress has ample means to ensure compliance with
valid federal laws, but it must respect the sovereignty of the
States.” Alden, 527 U. S., at 758. If the Court's reading of
USERRA is correct—and I am unsure it is, see supra, at
605–607—then Congress has not “accord[ed] States the es-
teem due to them as joint participants in a federal system.”
527 U. S., at 758. To nonetheless deem USERRA constitu-
tional, the Court brushes aside a 23-year-old, pathbreaking
precedent, while elevating a single phrase, made in passing
in a one-year-old, highly circumscribed precedent. It then
uses that phrase to fashion a test for plan-of-the-Convention
waiver that mimics earlier attempts by this Court to deny
States the dignity owed to them in our system of dual
federalism.
Our sovereign States deserved better. I respectfully
dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 590, lines 13 and 14: “numbered” is replaced with “separate”