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Torres v. Texas Department of Public Safety

Oral argument transcript · No. 20-603 · October Term 2021 · argued March 29, 2022 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: Justice Thomas is participating remotely this morning. We'll hear argument this morning in Case 20-603, Torres versus Texas Department of Public Safety. Mr. Tutt. ORAL ARGUMENT OF ANDREW T. TUTT ON BEHALF OF THE PETITIONER

Andrew T. Tutt: Thank you, Mr. Chief Justice, and may it please the Court: The Constitution gave Congress the power to raise and support Armies, and the reason for that grant was to ensure the survival of the nation. The Constitution provided Congress with the tools necessary to fulfill its preeminent national defense function, and the ability to authorize lawsuits, including suits against the states themselves, are among those vital tools. I'd like to make two additional points this morning. First, the war powers, including the Army and Navy clauses, are unique and fundamentally different from the Constitution's 1 other grants of power, unique textually, unique structurally, and unique historically. The states could not have read the Constitution seeing the federal structure it created and believed they would retain sovereign authority to interfere with the federal government's preeminent national defense function. Second, USERRA's protections are crucial in light of the structure of the modern military. At the turn of the 20th Century, it became apparent the United States would be -- would be required to wage war on a global scale and at a moment's notice and that this would require an immense fighting force. Rather than create a massive peacetime standing army, the United States instead created a reserve component, trained soldiers who would keep their civilian jobs but would be ready to respond at a moment's notice to unpredictable global threats. To convince soldiers to join that force and to ensure that soldiers in it would be willing to risk significant injury without hesitation, Congress promised these soldiers that they would not be discriminated against on the basis of their military service or 1 service-connected injuries. USERRA and the cause of action that makes its rights real is not a tangential or peripheral exercise of the war powers but a core exercise of the United States' power to raise and support its Army to fulfill its indispensable first task, protecting the national security. I welcome the Court's questions.

Chief Justice Roberts: Counsel, what do you do about our decision in Allen, which seemed to suggest that Katz, on which you rely, was quite specific and limited to that context?

Andrew T. Tutt: Your Honor, Allen does say that, typically, the -- this is a limited -- that sovereign immunity is limited, but, as Allen pointed out, Allen is about abrogation, not a Plan of the Convention waiver. I would also point out that Allen acknowledged that --

Justice Kagan: I don't quite understand the distinction that you're making between those two things. Could you -- could you explain that, why you think that these are in two separate buckets?

Andrew T. Tutt: Well, the Court has -- the 1 Court has explicitly treated them as -- as separate buckets, Your Honor. In PennEast, the Court made clear that abrogation, the taking away of sovereign immunity, is something distinct from a waiver in the Plan of the Convention. And so -- and I could -- and I -- I could speak more to that, but that -- I think that it is a distinction in this Court's precedents and it's -- and it's an important distinction. The Fourteenth Amendment permits abrogation. None of the Article I powers have been found to permit abrogation. But the eminent domain power and the bankruptcy power were both -- have both been found to be Plan of the Convention waivers --

Justice Barrett: But --

Andrew T. Tutt: -- because the federal -- yes, Your Honor.

Justice Barrett: Well, Mr. Tutt, both the eminent domain power and the bankruptcy power are inextricably intertwined, to use PennEast's language, with judicial proceedings. I mean, the eminent domain power, there was evidence that the United States had delegated 1 this power to private parties since the beginning, and the way to accomplish eminent domain is through a condemnation action. Similarly, with bankruptcy, bankruptcy proceedings are tied to litigation, and that is obviously not true of the war power. Litigation is not its central office. So why isn't that a distinction here?

Andrew T. Tutt: First, I would say that I think eminent domain is not necessarily inextricably intertwined with judicial proceedings. I think, in PennEast, the Court pointed out that eminent domain has long been exercised without condemnation actions but simply by making a taking. But even accepting that it is --

Justice Barrett: Well, it relied pretty heavily on condemnation actions.

Andrew T. Tutt: Yes, Your Honor. So even accepting that those two powers have a -- a unique relationship with judicial proceedings, the -- that is not what actually motivated the decisions in those cases. I think the -- I think the better way to think about those two cases and the war powers is that those powers 1 are not complete unless, in a very ancillary way, suits against the states are authorized.

Justice Gorsuch: Well --

Andrew T. Tutt: So it's not --

Justice Gorsuch: -- what do we do about the fact that in, like, the bankruptcy context, there is a long history, and, here, by contrast, it appears that the first time Congress purported to authorize suits against states was, I believe, 1974?

Andrew T. Tutt: Your Honor, the -- the -- we have suits that are -- that go back much further. We -- we -- we point to the category of suits that were thought to be contemplated by the Constitution itself for the peace treaty, the Treaty of Paris. We also have the suits against states that were authorized in 1833 in habeas corpus. Those were official capacity actions against state officers.

Justice Gorsuch: I understand habeas corpus, but -- but this is a little bit different than --

Andrew T. Tutt: It --

Justice Gorsuch: -- than habeas corpus, right?

Andrew T. Tutt: -- it is. It is, Your Honor. But --

Justice Gorsuch: So outside of habeas corpus and things like -- 1974, is that about right?

Andrew T. Tutt: That's the first time that private damages actions were deemed by the political branches of the United States to be necessary to the effectual exercise of the war powers. But --

Justice Gorsuch: Not exactly the most contemporaneous evidence of the original meaning of the Constitution and the Plan of Convention, is it, counsel?

Andrew T. Tutt: It is not, and we are not -- and we are not relying on -- on that. What we're relying on is ultimately primarily the text and structure of the Constitution and the original understanding that the states must have had at the time that the Constitution was ratified. That is our primary submission. But even --

Justice Kagan: Can you give a little content on that? I mean, just complete the sentence for me. The war powers are different 1 because what?

Andrew T. Tutt: The war powers are different because they are conferred unconditionally and without qualification. The states are divested, textually divested, of the power to interfere or en- -- engage in actions that are at -- that are at variance with the war powers, that endanger --

Justice Kagan: So, in Seminole Tribe, of course, which was the case that started all of this off, we dealt with the Indian Commerce Clause, and the Indian Commerce Clause was similarly an entirely federal power. It doesn't have the explicit divestment of the states, but it has everything else. And the Court was very clear about this. It said the Indian Commerce Clause represented -- I'm going to quote some language here because I think it just applies perfectly to this case -- a virtual total cessation of authority by the states, that relations with the Indian tribes were the exclusive province of federal law, and that the Constitution had divested the states of virtually all authority over Indian commerce and the Indian tribes. And 1 yet we said none of that mattered. So why should it matter here?

Andrew T. Tutt: Let me give you -- let me give you three reasons that it doesn't matter here. The first is that Seminole Tribe is an abrogation case. It was considering this in the context of do these powers allow for the taking away of power in the same way as Bitzer. So it's not a Plan of Convention waiver case. Now --

Justice Kagan: Yeah, I -- I don't know. I mean, I asked you about this before, and I'm -- I'm -- I'm still trying to figure out the response a little bit. Maybe I'm just having a block here. But it seems to me that both are essentially asking the same question, which is that they're looking at the founding period and they're saying what would the states have expected. And you -- you know, I don't really see the difference.

Andrew T. Tutt: Let me give you -- let me give you two more distinctions. One is that in PennEast, the Court made very clear that it was the exclusivity of eminent domain and the need 1 for a complete eminent domain power in the federal sovereign that was what would have made the states understand that federal eminent domain permitted suits against the states. So this Court has decided cases that are -- that -- whose reasoning is somewhat in tension with Seminole Tribe's reasoning about exclusivity.

Justice Kavanaugh: What's your third?

Andrew T. Tutt: My third is that Indian commerce is exclusive, but it's really exclusive with respect to the tribes. And something unusual was being done in Seminole Tribe, which it was trying to use the Indian commerce power to regulate the states, which is not the sense in which this Court has thought of that power as exclusive. And the state -- the Court has said that the United States has plenary authority to divest the tribes of any attributes of sovereignty. So, when actually regulating the Indian tribes, exclusivity does permit suits to be brought.

Justice Gorsuch: Counsel, I --

Justice Kavanaugh: How important is 1 --

Justice Gorsuch: Oh, please, go ahead.

Justice Kavanaugh: No.

Justice Gorsuch: All right. I -- I -- I'm not sure I followed that answer, and -- and maybe this is what Justice Kavanaugh was going to say and probably should be saying rather than me. The -- the -- I had understood the Indian Commerce Clause -- and you can correct me if I'm wrong -- to -- to give Congress a lot of authority with respect to tribes in lieu of what normally might be local authority, state authority. So it does speak to state authority, but -- but perhaps you -- you have a different view may -- maybe. I'm just a little confused.

Andrew T. Tutt: The -- the -- Congress could permit the states to actually exercise local control over the Indian tribes in a way that it would never authorize the states to participate in war-making. So the exclusivity over the tribes themselves is really the exclusivity that the Court has been talking about versus interactions 1 or intercourse with the states. Now it's true that Congress has exercised that power and taken the -- the tribes into a trust relationship, but there is a textual divestment of any ability of the states to participate in war-making in any similar way.

Justice Gorsuch: I guess --

Andrew T. Tutt: They cannot --

Justice Gorsuch: -- I guess I'm still stuck, and I'm not sure I understand that. Normally, the states would have considerable authority over people within their geographic bounds. That is divested by the Constitution in large measure by the -- by the Indian Commerce Clause in the same way war-making is. I -- I -- I think that's the parallel I see, and -- and I'm struggling to -- to -- to see your distinction between the two.

Andrew T. Tutt: Your Honor, my distinction is that though the tribes exist within the states and though the power to regulate the tribes is granted in the Constitution, that exclusivity is not something that the federal government is required to exercise. And it's something that if the 1 Congress had not exercised its power to regulate the tribes, I think it's unclear how the Constitution would have dealt with that. Congress did move into that domain and took full control, but, if you think about it, it's granted in the same clause as the Interstate Commerce Clause. It's granted in the same clause as the other powers that this Court has long held are concurrent. So that -- that's all that I'm saying. And if you look at war powers and you look at the way -- the very nature of the war powers, 50 separate sovereigns cannot participate in war-making.

Justice Barrett: But no one --

Justice Kavanaugh: How -- how important is the text of Article I, Section 10, which explicitly divests the states of anything on the war powers?

Andrew T. Tutt: I think it's -- I think it's extremely important, Your Honor. I think that the textual divestment is powerful evidence that the states knew that they were giving up any power to interfere in this realm. The ultimate inquiry for the Court in 1 this case is did the states believe that they would retain a sovereign immunity that they could assert that would interfere with war-making. But they gave up even more sovereign powers in Article I, Section 10. They gave up the ability to conduct diplomacy. They gave up their ambassadors and foreign ministers. They gave up the very things that almost define sovereignty.

Justice Barrett: But no one is --

Justice Alito: Can I ask you --

Justice Barrett: -- saying that they would have the power to do any of those things now. There's no dispute that the states could not engage in diplomacy or exercise any kind of war-making authority. The question is whether they relinquished their protection from private discrimination suits, which is a quite different thing. No one disputes that in this very case, the United States could come in and sue Texas and -- and tell Texas that it had to reinstate Mr. Torres on, you know, terms consistent with USERRA.

Andrew T. Tutt: Let me give two answers to that question and -- and I appreciate the opportunity to. One is the political branches of the government determined that the best way to protect the rights that USERRA guarantees is to give those whose rights it protects the ability to protect them themselves. It did not want the executive branch to be able to exercise discretion. It did not want to require soldiers to go to a bureaucrat in Washington and persuade them that their case was worthwhile. My co-counsel, Mr. Lawler, has brought and won USERRA cases where the Department of Labor has said there is no merit. And I think this was a wise decision. The Department of Labor keeps statistics. They submit a report to Congress. I encourage the Court to -- to look at this. In the last five years, they've brought nine USERRA suits total against any employer in the United States. They get about a thousand complaints at the Department of Labor a year, and it's resulted in -- in nine suits. So I think that Congress understood 1 that, in fact, if you try to put this through the United States, it's not going to be effective.

Justice Alito: Isn't your --

Andrew T. Tutt: But --

Justice Alito: -- argument that the states can't assert sovereign immunity in any lawsuit that Congress authorizes under the war powers?

Andrew T. Tutt: Your Honor, I don't think the Court has to reach that today because I think, in this case, it is central to raising and supporting Armies. And the Court need not go further than say that this is a proper exercise of the Raise and Support Army Clause. But --

Justice Alito: I mean, I -- I don't quite understand that answer. So you were emphasizing the exclusivity of the war power, but now you seem to say that there's some things that Congress could not do with respect to the -- under the war -- to authorize a suit against a state under the war powers?

Andrew T. Tutt: No, Your Honor. And, in fact, I think, in the entire history of the 1 United States, no state has ever successfully asserted a sovereignty limitation on the war powers in -- in any context. So -- but what I am saying is that in this case, I -- in this Court --

Justice Alito: Well, let me give you an example. I -- I think one of the -- one of the things that Congress asserted when it established the interstate highway system was the need for those highways for defense purposes. So would that mean that Congress could authorize individuals to sue states for failing to maintain highways properly or failing to patrol them properly?

Andrew T. Tutt: Well, I think that if there was a limit, it would be a limitation on the war powers themselves. It would be an internal limitation, not a sovereign prerogative of the states to say that that was a limitation on the war powers. And that -- that's ultimately what -- what I'm saying.

Justice Alito: Are -- are you saying that the establishment of the interstate highway system couldn't be justified under the war powers?

Andrew T. Tutt: No, Your Honor, I'm not. I'm not saying that. But all -- all I am saying is that to the degree that that would be a boundary case or a difficult case, it would be because it's a difficult case of the ultimate scope or extent or tie of the war powers to --

Justice Gorsuch: I guess I'm -- I'm -- I'm confused. Why wouldn't that be heartland? Why aren't you defending that -- that -- that position?

Andrew T. Tutt: Well, Your Honor, I want to make clear that -- that wherever you draw the line on the war -- scope or extent of the war powers, the question in this case is whether, if the states saw the Constitution, read its text, read the Federalist Number 23, read the Federalist Number 41 -- and I encourage reading the whole -- reading those essays --

Justice Gorsuch: I -- I think you can safely assume this bench will and has read a lot of things --

Andrew T. Tutt: Yes, Your Honor.

Justice Gorsuch: -- about this case.

Andrew T. Tutt: Yes, Your Honor.

Justice Gorsuch: And I -- I think the 1 question is, if -- if it's essential to the war powers, if Congress, which, apparent -- apparently, the United States hasn't made enough war, right -- it's essential to the war powers that -- that an individual be able to sue the state, in this case for forms of discrimination, whatever, why wouldn't it be equally essential to allow veterans to sue for making sure our highways are in good order so that we can deal with invasions on the West Coast? I mean, that was -- that was the whole point of the interstate highway system, I think, Justice Alito's alluded to.

Andrew T. Tutt: Well, this Court -- and this goes back to -- to Justice Alito's --

Justice Gorsuch: Yeah.

Andrew T. Tutt: -- original question. In war powers cases, the Court has typically said that the war powers are broad, authorize a great many things, but then limited the holding to the facts before the Court. And I think it's done that in -- in recognition of the potential breadth of the war powers. And so answering that hypothetical is -- is just difficult and -- and we know it's 1 difficult, and this case is a core exercise of the war powers because recruitment and retention of soldiers direct -- it's directly related to the recruitment and retention of soldiers.

Justice Barrett: But your answer has to be that if it's within the war powers, then, yes, Congress could authorize suit, is that correct? You're -- you're fighting whether Congress could rely on its war powers to --

Andrew T. Tutt: I --

Justice Barrett: -- build an interstate system.

Andrew T. Tutt: Yes, and --

Justice Barrett: Let's -- let's assume that it can.

Andrew T. Tutt: I --

Justice Barrett: Then your answer is yes, right?

Andrew T. Tutt: Yes, Your Honor. I think that if -- that a -- any -- I mean, our submission is any appropriate exercise of the war powers, emphasis on "appropriate exercise" --

Justice Barrett: Yes or no?

Andrew T. Tutt: -- but, if it's within --

Justice Barrett: Just yes or no.

Andrew T. Tutt: Yes. Yes, Your Honor.

Justice Barrett: Okay.

Andrew T. Tutt: Yes, Your Honor.

Chief Justice Roberts: I'm sorry, yes -- yes to -- I've lost track of the question. (Laughter.)

Andrew T. Tutt: Apologies --

Chief Justice Roberts: Yes --

Andrew T. Tutt: -- Mr. Chief Justice.

Chief Justice Roberts: -- yes to what?

Andrew T. Tutt: Yes, a proper exercise -- it is a proper exercise of the war powers or if it is a proper exercise of the war powers to --

Justice Kavanaugh: But the "if" is big, right?

Andrew T. Tutt: Yes, Your Honor.

Justice Kavanaugh: So you're not giving -- yeah.

Andrew T. Tutt: Yes.

Justice Kavanaugh: Don't give away the "if."

Andrew T. Tutt: No. The -- the "if" is -- is -- is all in this particular situation.

Justice Kavanaugh: Yeah.

Andrew T. Tutt: If it is -- if it is necessary to raise and support Armies to permit individuals to sue because otherwise they will hesitate to take a bullet on a battlefield because they don't know if they're going to have their job as a plumber's apprentice when they come home because their employer can fire them if they're injured, that is central because recruitment and retention of the Armed Forces, this Court has held -- even recently in -- in Rumsfeld versus FAIR has held is a core exercise of the raise and support Armies power. And so -- and let me say Texas does not dispute --

Justice Barrett: Are you limiting your argument to the raise and support Armies power? I understood that to be the SG's position, but I thought your position was broader than just raise and support Armies and Navy.

Andrew T. Tutt: Well, I -- our position is that in view of what is at stake, which is the survival of the nation, the federal government's indispensable first task of protecting the 1 national security, the war power is the proper unit of analysis, but --

Justice Barrett: So you're broadly speaking beyond just the raise and support Armies?

Andrew T. Tutt: Yes, Your Honor.

Justice Barrett: Yeah.

Andrew T. Tutt: Because -- and this Court -- you know, in -- in the Hamilton versus Kentucky Distilleries case, the 1980 case about a prohibition on the sale of alcoholic beverages nationwide, Justice -- just -- Judge Learned Hand was the district judge, and he -- he said that, ultimately, whatever the source of authority in his district opinion -- court opinion, whatever the source of authority is, a rather barren question, the real question is, what are the limits? And that ultimately is what decides the case. Whether -- whether it's located in the power to declare war or it's located in the additional text of raise and support Armies, what is at stake is so vital and so unique and essential to the nation that that ultimately is -- is what's important and -- and --

Justice Sotomayor: Counsel, I know you're relying -- or I guess the government's relying on the Army Clause. You're relying on all of them. I take something from the Militia Clause, and I take what it views as raising and supporting and providing and maintaining a militia. It uses the words "to provide for organizing, arming, and disciplining" the militia. So, if I take that that is just a specification of a part of what that power is, to raise and support an Army or to provide and maintain a Navy, disciplining seems to me as purely a federal right. I assume that retaliation for service is a form of discipline to the employee. And I assume that your argument is that it is by its nature a power that requires a waiver of a state's immunity because it's giving over absolute control in a way that the others are not. There's concurrent. Is that the basis of your argument? That in most of these, including commerce with Indians, we have concurrent state jurisdiction. We have none with respect to Armies, correct?

Andrew T. Tutt: Correct, Your Honor. Yes. The -- the states do not participate in raising and supporting the Army. That is an exclusively federal power. And they do not discipline the militia. The federal government disciplines the militia. And so that -- that is absolutely part of our argument. I -- I want to make clear Texas does not dispute that the obligations of USERRA are a constitutional exercise of the war powers, including as to Texas. Texas does not dispute that the cause of action in USERRA is constitutional, and not just against all employers other than Texas but even against Texas, just as long as Texas consents. The only question that Texas raises is it says that if it wants to assert a sovereign -- an implicit immunity, even when it interferes with war-making and is acknowledged to interfere with the ability to raise and support an Army, that it should have the power to do so and that the Constitution contemplated that. And our submission is the Constitution does not contemplate that and that given the sovereign authorities that the states gave up 1 textually, given the -- the fundamental structure of the Constitution, they gave up the ability to assert sovereign immunity in that precise context when it would interfere with the ability of the federal government to wage war --

Justice Kagan: Mr. --

Chief Justice Roberts: Thank -- thank you.

Andrew T. Tutt: Oh, I apologize.

Chief Justice Roberts: No, I was just going to move us on to the next phase of questioning. And, Justice Thomas, do you have anything to -- to ask?

Justice Thomas: Just a couple of questions, Mr. Chief Justice. Thank you. Counsel, the -- does it make a difference here that USERRA authorizes suits against Texas in its own courts?

Andrew T. Tutt: This Court has said that -- that whether it was in a state court or a federal court is not relevant for the analysis of whether there was a -- a waiver in the Plan of the Convention. We don't think that -- that it is relevant, although Texas getting its own 1 judges is pretty -- is pretty good, we think.

Justice Thomas: Why isn't that commandeering their court system?

Andrew T. Tutt: Your Honor, in -- in Printz and other cases, the Court has said that the -- the states were contemplated to have been the court system of the United States and that it was -- creating federal courts was optional, and in which case all suits, in bankruptcy, in eminent domain, everything would have been ultimately vested in -- in federal -- in state courts even though they would involve suits against states.

Justice Thomas: I think some of the early states would have disagreed with that, but let's move on. You seem to put a lot of weight on the fact that Congress has -- the national government has the war power that's unconditional and without qualification. I think those were your words. If that's the basis for such broad authority, why couldn't Congress do the exact same thing under another provision that is unconditional and without qualification, such 1 as, for example, the Coinage Clause?

Andrew T. Tutt: Your Honor, I think what's important is that they're provided without qualification or condition, but the objects to which they are directed are fundamental incidents of international sovereignty. And so, when you view them in nature of their -- in -- in view of their objects and subjects, you understand that the inconditional grant carries with it a much more significant grant of federal authority than with respect to the concurrent regulatory powers. These are --

Justice Thomas: Well, do you think that --

Andrew T. Tutt: Yeah?

Justice Thomas: -- so you said it had the -- how -- you know, then the question becomes is how close this connection should -- must be. I mean, the -- I think, when we had the -- and Justice Barrett alluded to it -- in the bank -- case of bankruptcy, I think we said that -- the Court said that it was inextricably intertwined with judicial proceedings. The -- this seems to be quite remote from being 1 inextricably intertwined with war powers.

Andrew T. Tutt: Your Honor, I would say that the war powers have, since the founding, had a -- an important relationship with the adjudication of controversies. The Constitution understands that soldiers will need to be tried and make special provision for that, and the -- the war powers have been exercised in ways that are uniquely judicial, and we canvassed this in our briefing for over 200 years, which always --

Justice Thomas: Yeah, but I don't think that -- that's one thing, to have court martial proceedings or proceedings involving military conduct. This is post-military. But let's move on. I don't want to delay matters. The final question I have for you is, can you give me an example where sovereign immunity has been waived for private money damages suits against states?

Andrew T. Tutt: I -- I think you're speaking about, for instance, in Katz, where it was a preferential transfer suit. Is that in the nature --

Justice Thomas: No, just money 1 damages. Aren't we -- aren't money damages involved here?

Andrew T. Tutt: Yes, Your Honor.

Justice Thomas: Give me an example of a suit in which money damages, not just compensation for property, that sort of thing, but money damages.

Andrew T. Tutt: Your Honor, I would -- I would point to both suits by the United States against a state and suits by --

Justice Thomas: Well, the United States doesn't really count since that -- that's -- that's -- that's conceded.

Andrew T. Tutt: Well, Your Honor, it is important because Texas says that it would be willing to entertain these suits, the exact same suits for the exact same damages that inure to the exact same beneficiary as long as this was captioned United States against Texas. And so, you know, if that's all that it's -- that's at stake, it -- it seems like a pretty low-stakes question for Texas, so the -- so -- because these suits are -- are authorized for money damages by the United States on behalf of the veteran.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Breyer, any questions?

Justice Breyer: Do you know, in an eminent domain suit brought by an individual under delegation, if something valuable has been destroyed by the present owner, is that person who is suing for eminent domain entitled to money damages and compensation?

Andrew T. Tutt: Yes, Your Honor.

Justice Breyer: And do you know any case which says they wouldn't get that as part of the eminent domain suit?

Andrew T. Tutt: I -- I'm aware of no case, Your Honor.

Chief Justice Roberts: Justice Alito? Justice Sotomayor? Justice Kagan?

Justice Kagan: Mr. Tutt, way back when, when you were giving three reasons for why Seminole Tribe doesn't apply here, I think the second -- and I don't want to mischaracterize you, it was a while ago, so tell me if I've gotten this wrong -- but you basically says -- said, you know, a lot has happened since 1 Seminole Tribe, a lot of water under the dam, and we don't have to take some of Seminole Tribe's statements for quite all their worth. And I'll just say speaking personally now I doubt I would have been in the majority in Seminole Tribe, so if you have reasons for why you think Seminole Tribe should not be read for every -- for all it's worth, you know, have at it.

Andrew T. Tutt: Well, Your Honor, I think -- I think the biggest reason is that it would be extraordinary for Seminole Tribe to have placed a limitation on the war powers without any discussion at all of the war powers, without any discussion at all of the incidental impact of that reasoning.

Justice Kagan: Well, I guess what I'm saying, I know that --

Andrew T. Tutt: Yeah.

Justice Kagan: -- Seminole Tribe was not about the war powers, but Seminole Tribe seemed to take an extremely strong view that the exclusivity of a federal power really didn't matter. And I took you to be saying that our 1 cases since Seminole Tribe have suggested that Seminole Tribe wasn't right. Is that what you're saying?

Andrew T. Tutt: I think that the reasoning of PennEast puts a -- puts a focus on the exclusivity and the importance to the complete exercise of the eminent domain power in the federal government. I don't -- I -- I don't want to say that this Court has to overrule a single precedent to rule for us. The -- the reasoning of Seminole Tribe is not the best for us, but it -- it just does not reach beyond the ordinary domestic Article I powers. The Court could draw a distinction there and say that the -- that a complete but ordinary domestic regulatory power is different, fundamentally different, than an exclusive international incident of the sovereignty of the United States and that that is a perfectly sound reason to overrule nothing in Seminole Tribe but nonetheless reach the right result in this case.

Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh?

Justice Kavanaugh: On that last question, I'll say the same thing, Article I, Section 10 is important too, right?

Andrew T. Tutt: Yes, absolutely, Your Honor. I think it's essential. And its divestiture --

Justice Kavanaugh: And there's no -- no equivalent of that in -- in the Indian Commerce Clause.

Andrew T. Tutt: There -- there is not, and -- and the development of the Indian Commerce Clause exclusivity jurisprudence followed a different trajectory. Here, it was written and enumerated in the Constitution itself they could never exercise those powers. They cannot enter into a treaty, period.

Justice Kavanaugh: And then you mentioned earlier it came up in 1974. Why, and why does -- why is that relevant?

Andrew T. Tutt: Oh, yes, yes, Your Honor. It -- it came up because there was resistance to -- resistance among the states to reemploy the veteran in 1974, and the traditional respect that the federal government --

Justice Kavanaugh: Because?

Andrew T. Tutt: Because of opposition to -- to the -- the war at the time. And -- and the states were basically using their -- their privilege as states to express in law a view about what the foreign policy of the United States should be and how the United States should wage war, which I think is exemplary of the issue that we think that the war powers never could -- could allow. The states do not have a role to play in this area.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: I do have a question. I want to take you back to Justice Kagan's question to you about the buckets and how do I know what the difference is between the buckets. Do you think they just made the wrong argument in Seminole Tribe? You know, you've said a couple times, well, that was an abrogation case, that was an Article I case, and we're not talking about abrogation here. But why not? I mean, maybe -- maybe we just didn't consider the argument in Seminole Tribe. I mean, you point out in your briefs 1 that, well, the national defense was one of the reasons that the Constitution was ratified. Well, so is commerce and trying to get rid of protectionism. And so I think we've said again and again in some of our commerce case -- clause cases, we said it in Wayfair, that this is the kind of thing, commerce, free commerce between the states and giving Congress the Commerce Clause, the commerce power was a reason. So do you think that we just -- you know, that the right argument wasn't made and that Seminole Tribe should come out differently if we consider the Plan of Convention argument?

Andrew T. Tutt: I -- I think that -- that Seminole Tribe is correct and that you do not have to overrule any --

Justice Barrett: No, I -- I understand you don't want to --

Andrew T. Tutt: Yes.

Justice Barrett: -- overrule it, but what if the Plan of Convention argument has been made? Is the answer to Justice Kagan's bucket questions, well, maybe we should be thinking of all of this as Plan of the Convention and so 1 maybe Seminole Tribe, they just made the wrong argument?

Andrew T. Tutt: Your Honor, I -- I -- I don't know. I have not read the briefs. I've read the relevant passages in Seminole Tribe many times to try to understand what was -- what was the reasoning of the case, and I just think that Seminole Tribe made some statements that were broader than its holding and made some assertions about --

Justice Barrett: No, no, no, no. Just, like, back -- back up. I'm not asking whether anyone actually made the Plan of the Convention argument in the case. I haven't gone back and looked at the briefs either, but I assume that they did not. I'm saying that if today you were presented with those facts, could you make a successful Plan of the Convention argument on the facts of Seminole Tribe for some of the reasons I gave?

Andrew T. Tutt: No. No, I do not -- I do not believe that you could make a Plan of the Convention argument for the Commerce Clause. I think that the powers of commerce, of copyright, 1 of intellectual property, of coining money, of counterfeiting securities, of postal roads, all of the domestic powers that are conferred in Article I, Section 8, sovereign immunity plays a fundamental role in preserving democratic accountability and the role of the states in our federal system. But, here, we have a different matter. Here, we have the survival of the nation, and as to that, there's just a fundamental difference in how it was talked about at the -- at the time of the ratification. There's a fundamental difference in the history of how these powers have been exercises -- exercised and understood by the states. There's just no -- I think no comparison. So thank you.

Chief Justice Roberts: Thank you, counsel.

Andrew T. Tutt: Thank you, Your Honor.

Chief Justice Roberts: Mr. Michel. ORAL ARGUMENT OF CHRISTOPHER G. MICHEL FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Christopher G. Michel: Thank you, Mr. Chief 1 Justice, and may it please the Court: Raising and supporting military forces is among the United States' express constitutional powers and most essential responsibilities. USERRA directly advances that mission. Its employment protections originated with the World War II draft. They were extended to permit suits against states to combat discrimination against the military during the Vietnam War. And they are especially important today to Guard and Reserve forces, who both serve the nation and work for employers, disproportionately including state employers. Those employers have sovereign immunity to most private suits, but this area is different. The Constitution was adopted in large part to stop states from undermining federal efforts to raise a military. This Court has never imposed a state sovereignty-based limitation on the federal powers to raise and support Armies or provide and maintain a Navy. In this distinctive area, we are one nation with one sovereign, and USERRA's cause of action can be fully enforced against all employers.

Chief Justice Roberts: Mr. Michel, 1 the Court in PennEast drew an express distinction between abrogation of sovereign immunity and immunity that was -- sovereignty that was waived, given away, under the Plan of the Convention. What is the consequence of that -- in -- in your view, what is the consequence of that distinction, or could you perhaps articulate perhaps more clearly than the Court did in PennEast exactly what that distinction is?

Christopher G. Michel: So, Mr. Chief Justice, I'll do my best. I think the -- those two inquiries go to different sources of evidence. When you're talking about a surrender of immunity in the Plan of the Convention, the Court is looking at what the founders understood, what the text of the Constitution provides. When you're asking about abrogation, the Court has looked to whether a particular statute provides for suits against states with particular clarity, and that's the -- the Fourteenth Amendment inquiry that the Court has -- has undertaken. Now I don't dispute too much with Justice Kagan's characterization earlier that 1 there is some commonality in those -- in those analyses, but I think, ultimately, the Plan of the Convention test looks to, as it sounds, the Plan of the Convention, and in this case, there really is overwhelming evidence that the states understood they were giving up a fundamental aspect of their sovereignty with respect to this particular power to raise and support Armies and provide and maintain a Navy.

Justice Kagan: I guess I would have thought that the abrogation cases are also in part not only about whether Congress has spoken clearly but whether, even if Congress did speak clearly, its word would govern. Isn't that what they're about? And -- and, in order to answer that question, aren't we looking at the same kinds of things that we're looking at to determine whether there's an exception under the Plan of the Convention?

Christopher G. Michel: I mean, I do think you might be looking at a lot of the same sources. I think they're -- they're somewhat analytically separate, and the Court has described them as somewhat analytically separate, but I don't want to resist too much the notion that in both 1 cases, what the Court is analyzing is the constitutional power and its effect on the states, namely, whether the states were relinquishing a fundamental attribute of sovereignty. And I do think there are some commonalities in the Court's abrogation and Plan of the Convention cases that confirm that -- that there is overlap in that area.

Justice Barrett: Mr. Michel, how do you answer the question that I asked Mr. Tutt about PennEast and Katz, bankruptcy and eminent domain, addressing power that was really uniquely tied to judicial proceedings? And I don't think anybody would dispute that in the Plan of the Convention, states relinquished their war power. But war power isn't inextricably intertwined with condemnation actions or -- or bankruptcy proceedings. I mean, it's -- it's -- it's separate from suit. How do you address that?

Christopher G. Michel: Sure. A couple of ways, Justice Barrett. I think I -- I agree with Mr. Tutt that although that is a common thread between Katz and PennEast, it doesn't seem to be reflected all that strongly in the Court's 1 reasoning, but even if you think it is reflected more strongly than that, it's certainly not in, for example, the Court's Fourteenth Amendment cases, where the Court has concluded in cases like Fitzpatrick versus Bitzer that there is an abrogation of sovereign immunity or that the Fourteenth Amendment divested states of attributes of sovereignty, even though there could, of course, be suits under all kinds of different causes of action there that aren't inherently bound up in litigation. And I think you could say similar things about suits by the United States against states, suits by states against other states, which I take it everybody agrees, under the older cases like United States versus Texas, did give way to a surrender in the Plan of the Convention.

Justice Kagan: Why don't you bring these suits, Mr. Michel?

Christopher G. Michel: So we do bring some suits. As we explained in our invitation brief, I think my friend for Petitioner maybe undersells how vigorous the United States has been in this area. We actually resolve a lot of 1 cases consensually where the Department of Labor, for example, will call the employer and explain their USERRA responsibilities and the cases can reach a successful conclusion for the servicemember in that way. But I don't dispute Petitioner's point that the private enforcement remedy is very important here. It's Congress's judgment. This Court has said that Congress has broad judgment in the area of raising and supporting Armies. This is a familiar enforcement mechanism. For example, Title VII authorizes private enforcement actions, and I think the Court has long recognized that those -- Congress is entitled to include those kind of mechanisms to --

Justice Kagan: Right. I guess I just -- I mean, there is a little bit of dissonance between the importance that you're saying this has to the federal war powers and, on the other hand, the actual practice of the federal government in prosecuting these suits.

Christopher G. Michel: Well, I -- I respectfully disagree, Justice Kagan. I think, when the government has found violations, you know, we've 1 brought cases, and as I said, sometimes we haven't had to bring litigation, but I think that's the process working, not the process failing. And it may be --

Justice Alito: Well, there -- there's an amicus brief that has statistics about the number of cases that the Justice Department has brought. It says that in the 16 years from 2004 to 2020, the court -- the Justice Department filed 109 lawsuits, which is a little more than six a year, and that only two were filed from 2015 -- since 2015, only two have been filed. Are those statistics correct?

Christopher G. Michel: I think they are correct, but, as we pointed out at our -- in our invitation brief, the numbers are much larger when you look at how many soldiers' claims have been successfully resolved. And I would respectfully submit that that's the more important number. I mean, if the government can resolve a claim without litigation, I think that's better for everyone, the soldier and the employer alike.

Justice Kavanaugh: What's the realistic problem that you foresee if you don't 1 prevail in this case?

Christopher G. Michel: Well, Justice Kavanaugh, I think it's the problem that led Congress to adopt the statute in the first place and, in particular, to adopt the provision allowing suits against states, which is there could be serious problems of discrimination against the military. Now, happily, I don't think we face that problem on a systematic basis today the way that we did during the Vietnam war, but, of course, that could change and a constitutional ruling by this Court would take this tool off the table forever. I also think there are individual cases like this one where employers -- you know, there's a good-faith dispute about whether there was a violation in this case, but being able to bring these suits is an important remedy for the individuals and it's an important deterrent effect for the employers, including state employers, to know that they have to comply with the statute or -- or else they'll face, you know, real consequences.

Justice Kavanaugh: And you said the 1 state employers -- or state employees are disproportionately part of the Guard and Reserves? I think you said that.

Christopher G. Michel: I did, yeah, and I don't have an exact figure on that, but I think that's not a particularly surprising fact. I mean, there's people who are drawn to public service, people who are like Petitioner in the state police or, you know, state firefighting services. Those -- not only are those people more likely to join the military, but they also bring a set of skills that's particularly important to the military.

Justice Kagan: Has the federal government considered whether, if Texas wins this lawsuit, the federal government would bring suit on Mr. Torres's behalf?

Christopher G. Michel: So there's an administrative mechanism in the statute by which a petitioner -- by which a plaintiff can ask the government to bring a suit, and the Petitioner, Torres, didn't invoke that in this case. But, if he were to invoke that, the federal government would -- would consider it. We don't have a -- we don't have a position on the merits 1 of this case, but if that claim came to us or a similar claim came to us in a different case, we would -- we would consider that. But I do -- I want to make the point that, you know, the federal government having to litigate cases all over the country would be a -- a real departure from what Congress in exercising these broad powers determined was necessary to raise and support a military, and I think the Court owes particular judgment to Congress's decisions in this -- in this area.

Justice Breyer: In 32 -- in Federalist 32, Hamilton discusses this, and one of the things he says, the issue here, is whether the Convention in its plan was to maintain those "rights of sovereignty which states had before." And then he lists three criteria, which I'll ask questions about later. All right. But what are those rights of sovereignty? Are they just asserting sovereign immunity in a lawsuit by a private person, or are there others?

Christopher G. Michel: I think there are probably other components.

Justice Breyer: And what are the 1 others? Do you -- do you have anything in your mind about those others?

Christopher G. Michel: Well, I mean, I --

Justice Breyer: Because, of course, if you win or if you lose, rather, whatever those others are, they're not infringed either. And what I've been looking for is, what are those others?

Christopher G. Michel: Sure. I mean, I -- I -- I actually -- I don't have a list in mind. I think --

Justice Breyer: Just any one or two.

Christopher G. Michel: You know, the immunity -- immunity against commandeering, immunity against coercion. I think this -- this Court has said that other attributes of sovereignty like that come up in the -- in the doctrine.

Justice Breyer: So, if, in fact, California had been invaded in 1942 and, as frequently happened in the Philippines, the Army had to seize houses so they wouldn't fall into the hands of the Japanese, at that point, it couldn't be done if you lose?

Christopher G. Michel: Well, I don't want to accept that, Justice Breyer. I think --

Justice Breyer: Well, is it a right of sovereignty or not? You said they're commandeering. They're commandeering the sheriff's office. I shouldn't have said a house. I said they're -- they're commandeering the governor's palace, they're commandeering. All kinds of things happen in wars.

Christopher G. Michel: So a couple of points. I think we would say if we lost this case that the government could still do that. The Court in cases like Case versus Bowles has said that the Tenth Amendment sovereignty power does not entitle a state to object to the -- to the government's exercise --

Justice Breyer: Very well.

Christopher G. Michel: -- of war powers.

Justice Breyer: Then you're saying that Hamilton, when he writes this, did not mean rights of sovereignty which the state had before. He only meant some of the rights which the state had before.

Christopher G. Michel: Well, my response, Justice Breyer, would be that he did mean -- at least for this case, he meant sovereign immunity and --

Justice Breyer: Well, of course, for this, but what I'm thinking, if I expose my thought, is that when you talk about the Indian Commerce Clause, you're talking about a power to regulate something that will exist no matter who wins, namely, commerce. It's going to go on there and it will be regulated in many ways. And the same is true of -- of -- of a lot of these other clauses in the First Amendment. But, here, it's quite different because I don't know what is involved when you say states retain their sovereign rights to raise Armies, to raise Navies, to -- and then there were a list of six clauses. So I thought you might have thought that through better than me, and I suspect you have, and I want to hear what you have to say.

Christopher G. Michel: Well, I think the most important part of the Hamilton passage, and I hope this is at least partly responsive to your question, is that when you read that in conjunction with Hamilton's passage in Federalist 81, which this Court has relied on as the foundation of its sovereign immunity jurisprudence all the way back to Hans versus 1 Louisiana, he directly links that list that you're talking about, Justice Breyer, in Federalist 32 with the areas in which there was an alienation of sovereignty to produce a waiver of sovereign immunity in the Plan of the Convention. So, if you take Hamilton's word on what sovereign immunity means, you have to read the whole paragraph, and he references back to this paragraph 32. And this is where Article I, Section 10, I think, is particularly important because one of the categories on the list, which you didn't read but were going to go on to read, is where a power is granted to the federal government on the one hand and withheld from the states on the other hand, that's exactly what's happening with the Raise and Support Armies Clause and --

Justice Breyer: Now is it? Because, if you read the six clauses that have to do with the war power in Article VIII, they give to Congress all these powers, Armies, Navies, et cetera, but it ends by giving to the states the power of running the militia in two areas, reserving, it says, to the states, respectively, 1 the appointment of officers in the militia and the authority of training the militia according to discipline preserved by Congress. Hmm. Now does that reserve mean that the other things listed in the six clauses are exclusively the business of the fed and prohibited to the states?

Christopher G. Michel: Yes. I agree with that.

Justice Breyer: And what's your evidence for that?

Christopher G. Michel: I mean, I think that both the text itself once -- when the text is sort of fully distributing the powers, which I think it is here.

Justice Breyer: Yeah.

Christopher G. Michel: Now, of course, another very strong piece of textual evidence for that is Article I, Section 10, Clause 3, that expressly withholds the powers from the states. I do want to make the point that -- that differentiates the raise and support Armies power from all of the other powers that this Court has considered in cases that have really gone both ways, with a few exceptions. One is the Fourteenth Amendment. In 1 his opinion for the Court in Fitzpatrick versus Bitzer, Justice Rehnquist relied on the fact that the Fourteenth Amendment both grants power to the federal government and expressly withholds power from the states. That was the same framework that Hamilton set up when he explained when there would be a surrender in the Plan of the Convention. The Court in Katz, in Footnote 13, referred to the interaction between Federalist 32 and Federalist 81 in explaining that the bankruptcy clause falls within another one of those categories that's in Hamilton's essay, Federalist 32. So I think that is powerful support, assuming the Court is going to continue to rely on Hamilton's account of sovereign immunity, to understand where there was a surrender of sovereign immunity in the Plan of the Convention and to find that these particular powers are subject to that surrender.

Chief Justice Roberts: Justice Thomas, any questions?

Justice Thomas: Yes, Chief. I'm perhaps not as enamored of Hamilton as some are. 1 I -- I'm looking, counsel, at Article I, Section 10, that it -- it also precludes states. It says no state shall enter into any treaty, on and on, but it also mentions the Coinage Clause. So can -- can you have the exact same or similar exercise of authority under the Coinage Clause as you are now suggesting exists under war powers?

Christopher G. Michel: So, Justice Thomas, we don't have a position on that, but I agree with you that that is one of the few other powers that fits within that Hamiltonian framework, and there would be an argument that Congress could breach sovereign immunity if it -- under that power, but I would be quick to note that there's a lot of other evidence with respect to the war powers, the -- all the tremendous evidence about the Convention itself and that what states recognized they were giving up at the time of the Convention in the area of the military that I -- although I haven't fully studied it, I -- I doubt that that's present for the Coinage Clause, so the argument would be somewhat weaker there. But the Hamilton point, I agree, would 1 be the same.

Justice Thomas: So does it affect your argument that this -- that this authorizes suit in state court and that it authorizes money damages? And, you know, Justice -- there was some suggestion by Justice Breyer in his questioning that there wasn't much difference -- appeared to be not much difference between just compensation and damages in these cases. So does that -- is there -- does that affect your analysis at all, one, that it's in state court, two, that it involves money damage in what is more, I think, like a tort suit as opposed to just compensation for taking property?

Christopher G. Michel: Sure, Justice Thomas, I'll take them one at a time. I think, ultimately, the fact that Congress made the judgment to channel these suits into state court doesn't affect the analysis. Congress could always channel suits into state court. That's the Madisonian compromise that -- that this Court has recognized for -- for many years, and the fact that the Court -- the Congress decided to do 1 that in this case I don't think changes the Plan of the Convention surrender analysis. As to your second question about damages, I agree that the damages at issue here are different than in a takings case, but they're not different than would be at issue in a Title VII case under the Fourteenth Amendment, where I think everybody agrees, including my friends from Texas, that they're suable, including in state court, for damages in a -- in a discrimination case that would look a lot like the suit in this case, although the basis for the discrimination obviously would be different. It -- it -- there's nothing for and about the notion of damages and -- and a waiver of state sovereign immunity and the same is true about suits by states against other states. There are, as this Court is well aware, suits by states against each other for damages in water-related actions and other actions, where I think everyone agrees there is a waiver of sovereign immunity in the Plan of the Convention.

Justice Thomas: So the -- you -- you think that there is no difference between a 1 grant of authority under the Fourteenth Amendment and implying similar authority under war powers?

Christopher G. Michel: Well, I -- I think it would depend, you know, on -- of course, each power, you know, comes with its own history and its own -- and its own analysis, but I do think there's a lot in common between the Fourteenth Amendment and the raise and support Armies power. As I said earlier, both are granted and withheld by the text of the Constitution, and I think both indicate an unusual and particularly sort of superior relationship between the federal government and the states. Obviously, the Fourteenth Amendment was adopted as a result of war, and the understanding of the -- of the Raise and Support Armies Clause was similar -- similarly a response to the Revolutionary War and the failure of the states to provide for the military and, you know, the paramount purpose of ensuring that state obstruction of the federal military would not continue under the new Constitution.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Breyer? Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch?

Justice Gorsuch: I'm just wondering what the limits are of the principle you're asking us to adopt. I understand the textual commitments in the Fourteenth Amendment, but, here, we're being asked to adopt a view of implicit penumbras emanating from the War Powers Act -- sorry, from the war powers that the president and the Congress have in Article I and Article II. And you're giving us a very broad view of what those powers are, including to raise Armies, going so far as to suits against the states for veterans coming home, and without any linkage to necessity of any current exigency or any need for troops today. There's no argument here, as I understand it, that this is actually necessary or that Congress couldn't and the federal government couldn't bring these suits themselves if they wanted to do so. There's no 1 argument that this is necessary -- allowing private suits against states is necessary to raise an Army in the United States today. And so I guess I'm just wondering, what are the limits? I mean, Justice -- Justice Alito posited a pretty interesting example about potholes on interstate highways. Would every state policy that could be subject to an argument that it would impair the ability of the federal government to raise an Army or a Navy or to conduct war be subject to suit, private suit, by private individuals with punitive damages and attorneys' fees? Is -- the broader you argue for the war powers of the United States, the broader the consequences are for federalism, and -- and I just want you to have a chance to address that.

Christopher G. Michel: Sure. A couple things, and I -- in answering the later part of the question, I -- I think I can address the earlier part too. This -- I think there is an argument in this case that allowing these lawsuits is necessary to raising and supporting Armies. That's obviously the judgment that Congress and 1 the president, the two political branches of the government, made when they enacted this statute.

Justice Gorsuch: You're not arguing, though, that we -- we have other -- we don't have other mechanisms to raise and support Armies? It's just it's the preferred one today. I get it. Conscription is not very popular, but it sure worked for about 200 years.

Christopher G. Michel: Well, Justice Gorsuch, I don't think that's, with respect, how the Court normally addresses Congress's exercise of its enumerated powers. For example, the Court in Rumsfeld versus FAIR didn't say --

Justice Gorsuch: I understand.

Christopher G. Michel: -- is law school reading --

Justice Gorsuch: My -- my -- my question is --

Christopher G. Michel: -- truly necessary.

Justice Gorsuch: -- how broad does this go? The broader you reach -- the broader you create a war power and -- and you're -- you're extending it very broadly here, the greater the impact is for federalism, and -- and, at some point, they come to a head, and I'm 1 just asking you where you think that balance lies.

Christopher G. Michel: Right. I mean, I think it lies at the -- at least in this case, at the perimeter of the Raise and Support Armies Clause. I don't think that just because Congress or some litigant asserts that something is within the Raise and Support Armies Clause --

Justice Gorsuch: No, no. Congress says -- Congress says, you know, you can sue for potholes on interstate highways and you get punitive damages.

Christopher G. Michel: Right. I think this Court would be very skeptical of a claim that that falls within the Raise and Support Armies Clause, but I don't think this Court should be skeptical --

Justice Gorsuch: But what -- Congress said so. I mean, Congress said so. So you're asking us to defer to Congress here because Congress said so, and what -- what then?

Christopher G. Michel: I mean, if Congress did say so in -- in a statute enacted by the representatives of the states, then we would have -- I think we would probably be here to --

Justice Gorsuch: Defend it.

Christopher G. Michel: -- defend that statute --

Justice Gorsuch: Right.

Christopher G. Michel: -- but it would be a tougher argument than in this case.

Justice Gorsuch: And what happens to the Tenth Amendment in that world? What -- what happens to federalism in that world?

Christopher G. Michel: Well, Justice Gorsuch, I think it would -- first of all, I don't think that lawsuit probably would come out in the federal government's favor, although I think, in that hypothetical scenario, we would probably try to defend it. But, to get to the heart of your question, I think that with respect to raising and supporting Armies, the power of national survival, the federalism principles really do apply differently. And that's what the Court said in the Selective Draft Law Cases when it said the states' militia can be drafted into service by the United States and sent overseas. That's what the Court said in Case versus Bowles when it held that Washington's timber can be sold at a price dictated by the federal 1 government even though the state constitution dictated otherwise. The Court said that to read the Constitution differently would be to render it a self-defeating charter. And so, in this particular area, where the survival of the nation is at stake, I think it's fair to say that federalism principles apply in a somewhat lesser way.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: When you say the survival of the nation's at stake, can you explain that?

Christopher G. Michel: Sure. When without a military, you know, the federal government can't defend itself. That was the exact purpose that motivated the adoption of these provisions in the Constitution in the first place.

Justice Kavanaugh: Okay. And you're relying on the Raise and Support Armies Clause, the text. You're not relying on penumbra, I didn't think.

Christopher G. Michel: I -- I'm not. I mean, I think state sovereign immunity is itself something of a penumbra. It's not stated in the 1 -- the text of the Constitution. But, no, we're relying on the text of the Raise and Support Armies Clause.

Justice Kavanaugh: And just on the -- you -- you alluded to this, but why is it necessary today to have this kind of law? Or maybe looking ahead, I mean, a case like this, we should not be deciding it without thinking about 20 years from now, 40 years from now, 60 years from now.

Christopher G. Michel: Sure. I mean -- and just -- this, I hope, follows up on Justice Gorsuch's question too. I mean, the United States has a -- a military of 2 million people; 800,000 are National Guard members and Reservists. These are people who work for civilian employers at the same time they have jobs. They've never been more important to the military than they are right now. And one of the first questions that people like that will ask when they're considering whether to join the military is, well, do I get to keep my job? You know, does my employer have to let me take leave for training exercises or be deployed? 1 And it really does matter in the real world for the Army to be able to tell them, yes, your employer does have to do that. In fact, as one of the amicus briefs in this case points out, the brochure that the Army gives to its recruits lists the USERRA protections as part of the incentive package that they receive to join the military. And it would matter a great deal in the real world if it was harder for the United States to recruit Guardsmen and Reservists for the military. Obviously, you know, the -- the national security needs are unpredictable, and the government doesn't know when it's going to need to deploy troops overseas, and being able to have a supply of -- of forces to defend the nation is one of the most existential jobs of the federal government in the first place.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett? Thank you, counsel. General Stone. 25 1 ORAL ARGUMENT OF JUDD E. STONE, II ON BEHALF OF THE RESPONDENT

Stone: Thank you, Mr. Chief Justice, and may it please the Court: No one disputes the importance of the war powers or that USERRA advances constitutional ends. Sovereign immunity never limits the ends that Congress may pursue, only the means that Congress may use in achieving them. Neither precedent nor history show that the states authorized Congress to use the means of subjecting states to private damages actions by delegating the ends of -- of raising an Army to Congress. Torres's contrary argument rests on two premises: first, that the Constitution delegates a plenary and exclusive war power to Congress and, second, that the erection of state sovereign immunity impermissibly frustrates the exercise of those war powers. That's the argument this Court embraced in Union Gas and rejected in Seminole Tribe. There, this Court affirmed that, even though it had described the Indian Commerce Clause as plenary, exclusive, Congress could not 1 use that clause to expose nonconsenting suits to damages actions. This Court cannot agree with Torres without rejecting Seminole Tribe and the various cases relying on it. But even if this Court wrote on a blank slate, Torres lacks compelling evidence of a Plan of the Convention waiver. He cites nothing in founding-era debates that supports this incredible result, provides no examples of analogous founding-era suits against states, and he points to no attempt by Congress to expose states to such damages actions for over 200 years following the founding. There is no evidence that the founding generation saw the power to expose states to private lawsuits as inextricably intertwined with warfare or that the states intended to be sued without their consent by giving Congress the power to raise an Army. Without such compelling evidence, Torres cannot prevail under the Plan of the Convention. Now, unless the Court would like to direct me otherwise, I wanted to begin by speaking directly to one of Justice Alito's concerns regarding what my friend on the other 1 side was seeking, essentially, sort of Torres's theory of relief.

Chief Justice Roberts: Well, maybe -- maybe, if you don't mind, I'd like to direct you to some of the statements you just made. Nothing in the Plan of Convention that is applicable here that supports the result on the other side? Yes, there was no law like USERRA with respect to the obligations that could be enforced against the state, but it does seem to me that their strongest argument is what they have in the Federalist Papers, in the very reason that the Convention was -- was called.

Stone: So --

Chief Justice Roberts: Do you disagree with that?

Stone: -- I agree that is their strongest point, Your Honor, although, obviously, I disagree about whether or not that's sufficient or anywhere near required for a Plan of Convention waiver, in part because of a couple of precepts this Court has recognized, and then I'll give you a historical example that I think explains it. For one, this Court has described 1 sovereignty as having many aspects, so, for example, the power to -- to enter into a treaty, to declare war, power to coin money, to pursue criminal charges against individuals. There are many aspects of sovereignty. This Court has also described states as residual sovereigns, which is to say they keep whatever they haven't given away. This was certainly the understanding of the founders in the Federalist papers and certainly a sort of basic precept of state sovereignty to begin with. So the first and relevant question isn't whether or not states have specifically withheld an aspect of sovereignty but what they've given away. Now this isn't the war powers exactly, but I think perhaps the next-door example is the Treaty Clause. Undeniable that in Article I, Section 10, the power to engage in treaties or in confederations is taken away from the states entirely. That is an important sovereign power that -- that plays in issues of war and peace. Nonetheless, in Alden v. Maine, this Court looked at the Eleventh Amendment and 1 specifically at the rejected Gallatin proposal for the Eleventh Amendment, which would have exposed states to damages actions or to private suits arising under treaties, saw that rejection and understood that to mean that states as of the founding retained their immunity for treaty-based actions. So, to the extent that that's correct -- and I don't understand anyone here calling for overruling or undermining Alden -- then it must mean at a minimum that by exiling some sovereign power, such as the power to engage in treaties, the states have not necessarily exiled their sovereign prerogative not to be sued --

Chief Justice Roberts: Well -- well, so you're --

Stone: -- for exercises related to that power.

Chief Justice Roberts: -- there are two parts to that sentence. I understand the first but perhaps not the second. But are you saying that the states did retain some war powers --

Stone: Your Honor, I'm saying --

Chief Justice Roberts: -- that they 1 could then rely on as opposed to those of the federal government?

Stone: I'm saying that they -- they gave away certain parts of sovereignty, including the ability to raise Armies, to declare war, et cetera, and that this Court should, consistent with those being vested in Congress and to the extent that they've been taken away in Article I, Section 10, should recognize those aspects of sovereignty have been taken away.

Justice Kavanaugh: That's not an answer to the question, did --

Stone: Well, I -- I'm saying that --

Justice Kavanaugh: -- states retain any war powers.

Stone: -- at minimum, the states have retained their prerogative not to be sued, which isn't conventionally considered a war power in some sense, in part because there isn't this inextricable intertwining between the two, or --

Chief Justice Roberts: Well, then that challenges Congress's judgment, I guess, 1 that the law that is at issue here was essential, was the representation of the government's representative to the ability to raise Armies, right?

Stone: To some extent, but I don't think so, Your Honor, precisely because the removal -- the fact that the states did not confer on Congress the -- the means of exposing states to private damages actions doesn't depend on a balancing test with Congress. This Court's prior abrogation -- prior abrogation precedents and PennEast and Katz don't rely on a sort of balancing between Congress believed this is a very important exercise of power or a very important clause and, therefore, that overrides state immunity. So we don't -- our arguments don't rely on whether or not the war powers are important or even foundational to the United States. No doubt they do. And no doubt that -- that the Congress believes that something like USERRA is, in fact, important to maintaining an Army. It just turns out this Court doesn't balance away state sovereign immunity as sort of one constitutional 1 value --

Justice Kavanaugh: Can --

Stone: -- amongst many.

Justice Kavanaugh: -- can I ask a -- go ahead.

Chief Justice Roberts: No.

Justice Kavanaugh: No? A case -- a question about our precedent and maybe picking up on Justice Kagan's questions to your friends on the other side. Looking at our precedent as a whole in this area, which points, arguably, in some different directions, but I think one of the strong arguments on the other side -- I want to give you a chance to respond -- is, well, if you're going to allow suits against the states in bankruptcy, if you're going to allow eminent domain suits, you're going to allow suits under the Family -- Family and Medical Leave Act, you're going to allow Title VII suits against the states, it would be bizarre not to allow suits in the war powers area, where the national interest is at its apex as compared to those other areas. So that to me is a strong argument for them given our precedent, and I want you to 1 be able to respond to that.

Stone: Certainly, Your Honor, and I understand the intuition behind it, of course, that war powers are big, important exercises or fundamental exercises of power. I think the reason why that feels strange is precisely because you're having the intuition that more important things should be able to abrogate or dispense with sovereign immunity as opposed to less important ones.

Justice Kavanaugh: Well, I think they're all important, but they're more national so that the constitutional text itself makes very clear that these powers are given to Congress -- and Article I, Section 10, which is very important, explicitly, in case there was any mistake, divests the states, and even Article II, where the Commander in Chief power, Commander in Chief of the Armed Forces, including of the militia when called into service, so that the Article II displaces the state control over the -- over the militia, which was -- you know, that -- talk about taking away sovereignty. So, you know -- so it's not just important. It's the national/state balance 1 there.

Stone: Certainly, Your Honor. I want to speak specifically to the -- to the powers you -- you just cited and then to speak about the Indian Commerce Clause and the treaty power to sort of make the point. Regarding Katz and regarding there being sort of a uniquely federal interest there, there's a uniquely federal interest that this Court described when it was recalling Katz and Allen v. Cooper that sort of cited that there were these disparate state discharge orders and that, ultimately, individuals were being kept -- kept in debtors prisons as a consequence. And it looked at the Bankruptcy Act of 1800 and the potential for habeas relief there and sort of concluded by that ongoing history, contemporaneous with Chisholm, that the states had planned for federal courts to have a unique role to solve this problem among states, so -- so unique that, in fact, that clause itself disposed with any opportunity, any -- any sovereign immunity defense. Of course, this Court also described that as a "good for one clause only" holding, in 1 part because it was recognizing that this Court had held, not just stated but held in Seminole Tribe that all other Article I, Section 8 powers wouldn't yield that result.

Justice Kagan: But, since then, I mean, since that statement that that's a "good for one" holding, it -- it seems to have been proved wrong, right? Because PennEast comes along and says, no, it's not a "good for one" holding and PennEast -- I think the world after PennEast, you might think makes -- you know, it makes Seminole Tribe look like a very different decision.

Stone: I understand that intuition as well, Justice Kagan. I think part of what's doing work here is clause -- the "good for one clause only" holding. The eminent domain power as identified is not a clause, of course. It is a kind of sovereign power this Court identified in its precedents had been routinely assumed to belong to all sovereigns. This Court turned to its precedents and saw that that not only belonged to all sovereigns, it clearly belonged to the United States and could be exercised against state 1 land, and the sort of subsidiary questions for this Court to decide were based on the history of delegation.

Justice Kagan: Just, I guess, taking a subset of Justice Kavanaugh's question and just focusing it on the eminent domain power, I mean, in what world could it be a sensible result to say states can be sued on the basis of the eminent domain clause but not on the basis of war powers?

Stone: I think it's a creature of the Plan of the Convention test which goes specifically granularly to whether or not the states understood that this kind of judicial process would be worked against them.

Justice Kagan: Well, weren't war powers kind of the Plan of the Convention? I mean, what was this all about except to ensure that war powers were held by the federal government and not by any states? That was -- you know, I -- I -- I understand that you don't want to be ranking clauses in order of importance, but I think we can say that in terms of the foundational commitments of the Constitution, that was pretty 1 much the premiere one.

Stone: And no doubt that's true, Your Honor, that at minimum they're incredibly important and we can search the historical document and find as much about that. But there are other powers that are, of course, important to exercising war too, for example, the ability to borrow and spend money, the ability to regulate commerce. These are things that the founders had historical evidence and historical experience with, and, nonetheless, this Court has previously said that these sort of commercial sounding powers nonetheless leave state sovereign immunity in tact. So it might well be the case that if this Court wanted to say, well, powers being used towards war or towards the ends of war just have to be judged on some different model, then that would require this Court at least to sort of say, well, this isn't a Plan of the Convention question, at least not in the granularity that it looked to specifically in Katz and specifically in PennEast. But there's something special about 1 the sort of important nature of the war powers that must yield a different result.

Justice Barrett: Well, maybe there is, and, you know, Justice Breyer was asking your friend on the other side -- asking Mr. Michel about what kinds of sovereignty may have been retained. And, you know, another way to think about the questions that Justice Kavanaugh and Justice Kagan have been asking you is, if the states gave up all of this, you know, with respect to war powers and such a crucial aspect of the Convention, does it make sense to think, oh, but they retained sovereign immunity? I mean, that -- that seems kind of like small potatoes when you think about everything else they relinquished in this area.

Stone: No, Your Honor, in part because I think, as this Court's recognized describing Chisolm time and again, the founding generation jealously guarded their sovereign immunity. They didn't think that was a sort of small potatoes afterthought aspect to sovereignty. And so, to talk about the Plan of the Convention dispensing with particular 1 aspects of sovereignty, the treaty power, the power to declare war, et cetera, the fact that the states broadly believed they retained their sovereign immunity I think requires some showing that specifically, in a given context, the states had exposed themselves to -- to private suits, essentially had agreed not to raise that. This Court has found that in specific historical contexts like the Bankruptcy Clause and like eminent domain. It has said, even though dealing with the treaty power, which is something that's sort of on a first-order foreign relations issue, despite the treaty power being prohibited to states in Article I, Section 10, nonetheless, state sovereign immunity remains intact to treaty-based claims. So I don't think the sort of wholesale treatment of sovereign in gross is consistent with how the Court has looked at sovereign immunity or sovereignty vis-α-vis the states.

Justice Breyer: Well --

Justice Barrett: What about thwarting power? I mean, I think one of the strong arguments on the other side is one that Justice Kavanaugh was pressing Mr. Michel about, which 1 is that, you know, this -- post-Vietnam, states were expressing their policy disagreement with United States foreign policy and the United States' engagement in the Vietnam War by discriminating against veterans upon their return home. One of the problems in PennEast was that New Jersey, by refusing -- by -- by -- by refusing to cooperate in the policy decision that the United States had made with respect to national gas pipelines, was thwarting federal policy. And isn't it all the more serious here to have the states have the potential to thwart -- I mean, let's -- let's imagine that states decide -- let's say we get involved in Ukraine and states say that we shouldn't be, and so they use discrimination against veterans returning home to express their disapproval of our engagement.

Stone: Your Honor, and -- and I don't want to generalize too much without speaking specifically to your example. It's, of course, the case that whenever states exert their -- their sovereign immunity against acts 1 of Congress, it's going to frustrate them. It will sometimes frustrate them in little ways and sometimes in large ways. That's a consequence of immunity in any context. Now, to your specific example, Congress has several tools remaining, the most important of which that hasn't been really adequately discussed so far is that, of course, the United States is entitled to bring suit, Congress has specifically given them a cause of action against the states under USERRA to pursue remedies in -- in federal court against aggrieved servicemembers --

Justice Kagan: One of the things that PennEast said, the -- the -- the Court said there, that it would be counterintuitive to allow the United States to sue but not private parties. So why isn't the same true here?

Stone: In part because that was discussing, I believe, the specific history of del- -- the fact that there was a robust history of delegating the power to condemn, specifically, the power to exercise eminent domain. There was a robust history of that before and after the founding, and there was an 1 agreement that the United States had the power to exercise eminent domain against state lands. And so the only question left was whether or not that power, as exercised and delegated by the United States, sort of lost some of its character when being put into individual hands. This Court determined it wasn't, in part because the power of sovereign -- of eminent domain really was the power to condemn. It was a judicial power. It was a power that had an inextricably intertwined judicial characteristic with which there is no sort of war historical analogue where there's this robustly delegated power, this robustly delegated cause of action. And if it can be used and can be delegated, surely, it must be the same in the context of the United States and of individuals. The United States, because it has a distinct Plan of the Convention waiver for its benefit when suing individual states, can always, up to and including on Mr. Torres's behalf, sue Texas and sort of pursue specifically the interests that they had. This is a point that this Court made 1 in Alden, that, of course, the United States will sometimes come to this Court and express on behalf of the Solicitor General a belief that state sovereign immunity has to be dispensed with and yet will not have a tradition of actually pursuing these actions themselves. This is something that could be easily solved by the U.S. And, also, to the extent that the DOJ doesn't want to make this a priority, Congress, through Spending Clause legislation or other mechanisms compliant with other Spending Clause restrictions, can induce the states simply to waive their immunity because they -- Congress could absorb them before --

Justice Kavanaugh: You're -- you're telling Congress how -- how to wage war successfully. But, you know, Congress and the president make that judgment about how to wage war successfully. You agree that the power to wage war is -- has to be the power to wage war successfully, correct?

Stone: In one sense and not the other, Your Honor. Of course --

Justice Kavanaugh: In what -- in what sense is it not the power to wage war successfully?

Stone: It might be more expedient, for example, for Congress to delegate the power to make appropriations for the Armed Services to a single individual in the Senate, but it wouldn't be allowed to do that consistent with Article I, Section 7.

Justice Kavanaugh: And -- and then you agree that the power to wage war successfully depends on personnel?

Stone: No doubt.

Justice Kavanaugh: Okay. And personnel today is volunteer, and a significant percentage are Guard and Reserve.

Stone: Of course.

Justice Kavanaugh: And those people need protection from their jobs -- for their jobs.

Stone: Absolutely, Your Honor.

Justice Kavanaugh: And a lot of them are state employees.

Stone: Yes, Your Honor, though I might point out that Texas, by my best numbers, 1 has approximately 35,000 employees -- state employees who are veterans for the state. The United States Government, from what I understand, has about 950,000. And, of course, to the extent that the United States believes that this is a vital part of defending -- sort of keeping a ready military, it doesn't expose itself to remotely the same kinds of actions.

Justice Kavanaugh: Right, but the concern underlying -- as Justice Barrett was saying and I mentioned earlier, the concern underlying this is state hostility to the United States' foreign policy or national secure -- security objectives and to carry that out by hampering the war effort or preparation for war. I mean, we have to be thinking about the next 50 years. We don't know what's going to be happening over the next 50 years. We don't know what's going to be happening over the next 50 days in terms of national security and personnel. And so I think it's important to recognize that a significant component of the power to wage war successfully is having personnel who are willing to sign up, and they're not going to be willing to sign up. 1 I mean, that's a practical argument. You can just say that's irrelevant if you want, but it's an important overlay of what's going on here. It's not -- the Plan of the Convention is relevant today, is what I'm getting at.

Stone: I -- I don't at all think that's irrelevant, Justice Kavanaugh. What I would point out, though, is to extent that you're drawing inferences about how core some of these remedies or actions are, you should look to the United States' actual practice, which is to say the United States over the course of calendar year 2020 -- or 2020 and 2021, I believe, filed more briefs in this Court urging this Court to deny review than it took up cases under USERRA, which -- this is a very sparing occurrence for the federal government, who has orders of magnitude more individuals, more veterans employed before it. And that's not to say that the original delegation by Congress isn't important, but it's a little inconsistent to describe this as sort of ultimately vital to the national war effort, but then we see it very infrequently. Also, you know, equally hard to 1 explain is the fact that for the federal government, who, again, orders of magnitude more than even Texas, a very large state, to the extent that there's an aggrieved serviceman, they have an administrative right of review which can be judicially reviewed in the Federal Circuit on sort of APA deferential grounds. Texas, on the other hand, is treated like a private party. That's actually denominated in the statute, that Texas and all those states are private parties, to which Texas is exposed to not only explicitly the full suite of equitable and sort of other powers, including expressly the contempt power, but also Texas is exposed to punitive damages as such. And it is hard to imagine a conception of state sovereign immunity that can be more offended by anything than a private cause of action by Congress and designed to punish a state as a state.

Justice Breyer: Well, I -- you've given a good answer, but I want you to answer more, and I'll focus it. I'll start with the assumption, which you don't have to answer. This has the potential of being a pretty important case for the structure of the 1 United States of America. The war power is not copyright, and it is not the Indian Commerce Clause. It is, and, you know, as Lincoln said, will this nation long endure? We hope it is never necessary, but maybe that question will come up, okay? You see why I think it's very important? Okay. Now there are three arguments that have been brought up, and I'd like to hear if you have something to add. The first is the Plan of the Convention. As you've read biographies of Washington and the founders, you know perfectly well that they were terribly upset at the way the states were behaving in respect to the Continental Army and thought that that was causing the United States basically to lose almost, and they were at a convention -- and if I put the matter in a comical way, because it's not meant totally comical -- in the play, they say -- George the Third says: They'll be back. Wait and see. They'll come crawling back to me. And that was in the framers' mind, though not the music. And now we look at the text, and, my goodness, Article -- six sections 1 in -- in -- in Article VIII, another in -- in Article X, another in -- in section -- you know, clause -- the second, the president's part. My goodness, that suggests that was their frame of mind. If you want to say something about that, that's one. Two, is this theoretical? I lived through Vietnam. I saw what was going on. I hope we never have it again. But, my goodness, the blue states might well have, although the President of the United States and the Congress thought the only way to deal with this is we get as few conscripts as possible, as many volunteers as possible, and the states, blue, would have said: No, we're going to do everything in our power to prevent you from getting those volunteers, including not giving them their jobs back. Could that have happened? Yeah. Did it happen? I'm not sure. Maybe. And we could have another, okay? And you say: Oh, bring the government, bring the lawsuit. Against how many people were there in Vietnam in the Armies? They'd be suing until the next thousand years. And the third, you look at Federalist 1 32, and two of the three pieces of evidence that Hamilton says, "were it granted in one instance an authority to the union and in another prohibited the states from exercising the like authority." I can't say it's explicit, but those three parts of the Constitution I mentioned sounded -- and then the second thing -- the third thing, where it granted an authority to the union to which a similar authority in the states would be absolutely and totally contradictory and republican -- and repugnant. Well, that's Hamilton. And you've heard the evidence that that's what this case is, okay? Now I've simply summarized the three arguments you have been hearing this morning, and you've answered them pretty well, and I want to give you the chance to answer them further if you wish.

Stone: Thank you, Justice Breyer. Let me start with the first. So, as I understand the thrust of your first -- your first inquiry, you're pointing out that there are many, many powers vested in the federal 1 Constitution that are -- that touch on war and that, clearly, in the historical documents, those are very important, historically speaking, powers. That's no doubt the case. Unfortunately, to the extent that this Court were -- were intending to give Mr. Torres sort of the full measure of what he's asking for, this Court has to think about its previous statements in cases like Alden and in Seminole Tribe. Of course, stare decisis is a practical -- a sort of practical consideration and a practical doctrine, but this Court has said, and as recently as Allen v. Cooper repeated that no Article I, Section 8 power sort of dispenses with state sovereign immunity. To say that all of the powers that are reasonably described as war powers suddenly actually had no immunity to resist in the first place would be to, at best, minimize Seminole Tribe to virtually nothing. It surely occurred to this Court when it propounded that statement in Seminole Tribe and reconfirmed it in Alden that all of the powers in Article I, Section 8, including a 1 number of powers that had a direct basis on war, including the Army clause, the Navy clause, the enclave clause and so on. So, at minimum, to the extent this Court were inclined to say something along the lines of this critical nature, this very -- this foundational nature of these powers means they are treated differently, it has to be prepared to disregard decades of precedent in sovereign immunity. Two, if I understood your next question -- your next question correctly regarding --

Justice Breyer: Vietnam.

Stone: I'm sorry?

Justice Breyer: Vietnam as an example.

Stone: Right, regarding sort of the --

Justice Breyer: What they might mean.

Stone: -- the sort of practical possibility of states engaged in sort of deliberate political obstruction on ideological grounds. That strikes me as the sort of thing 1 that to which -- to the extent of to which a court is going to be effective at all, which, of course, we're all talking about a circumstance to which these must be problems amenable to a court or this is all sort of unnecessary because all sovereign immunity dispenses with is whether or not a court can sue. One would think the United States would sue California or -- or any other sort of obstreperous state and that, in fact, they would sue in sort of -- in the nature of class relief or equitable relief, prohibiting California and/or -- you know, and/or any of its officers from engaging in that flatly illegal policy, one would think that that either would be effective, or if it weren't, but if it weren't effective, then the court would face a constitutional crisis because a state is sort of deliberately disobeying federal court orders. So I think there's nothing left for the courts to do at that point. It would be a matter for an executive branch. I'm not quite sure that I'm perfectly following the third question regarding --

Justice Breyer: It was Hamilton.

Stone: -- regarding the extent of Hamilton's statements, except as to point out that -- that no doubt, for example, in the Indian commerce context, that power certainly had shades of war and peace. It would be utterly unsurprising to have described to the founders that the power to govern relations with the Indian tribes would be the power, in fact, to -- to engage in policies and to prevent battles with Indian tribes, prevent the loss of life and otherwise settle these through -- through treaty agreements, and, nonetheless, this Court has held that neither that clause nor the Treaty Clause can be used to expose states to private damages actions. I mean, taking -- taking things at sort of one level of generality, it's, of course, the case that the federal Constitution provides the federal government with profound powers relating to war and peace. It's just this Court has observed many times before that sometimes those powers don't come with state sovereign immunity because that's a separate aspect of sovereignty. 1 And so the fact that the states have, indeed, given up great powers related to war and peace, large aspects of their sovereignty, does not mean they've given up all of it. Otherwise, the concept of calling states residual sovereigns just sort of doesn't have any -- any further purpose.

Justice Breyer: Thank you.

Stone: If there are no further questions, I'd save the balance of my time.

Justice Gorsuch: A small question.

Chief Justice Roberts: And --

Justice Gorsuch: Go on, please.

Chief Justice Roberts: Go ahead.

Justice Gorsuch: A small question. Did you preserve the state law immunity argument as an adequate and independent state law ground? The government -- federal government says you did not, and you didn't really respond to that in your brief.

Stone: Yes, Your Honor, we did preserve it. The quote on which the federal government and Mr. Torres rely was speaking specifically as to federal law immunity. There are a number of places in that lower court brief 100 where the state specifically, I believe, cites Alden and describes about the distinct power that a sovereign has in its own courts as independent from a federal law immunity. So we certainly raised it for purposes of what would be considered preservation under Texas law. It was considered raised before the Texas Supreme Court also. To the extent that this Court's looking about whether or not it's been waived, it was raised in the briefs below.

Chief Justice Roberts: Go ahead. Justice Thomas, any questions?

Justice Thomas: No questions, Mr. Chief Justice.

Chief Justice Roberts: Justice Breyer? Justice Alito? Justice Sotomayor?

Justice Sotomayor: Counsel, I -- I can't take much from the lack of cases or evidence of Congress doing something until a need arises because I can't see Congress prophylactically passing rules if it doesn't see they're necessary until they become necessary. And, really, the Vietnam War is what 101 made this statute necessary because it's the first time we see a state potentially taking action that's going to directly affect the military's power. But do you discount the 1830s history, where, as did Justice Gorsuch, with respect to the habeas power? And, there, courts were releasing federal military officers from state custody because they were needed for the war efforts at the time, and the courts and the states had absolutely no hesitation in saying that Congressional need superseded the states' need to -- to hold a prisoner in custody. That was an individual suit, not for money, I grant you, but you didn't need money there because all you needed was the person to be released. So I guess what I'm asking is you concede that the states knew that if they impeded the war effort they would be sued by the federal government at least. I know that the first opportunity an individual had to sue in the 1830s for his own release, the courts gave him that power, the individual, to sue the state in state court. 102 So what is the next step missing with respect to the Plan of the Convention that we need some further proof that there was a belief that there wasn't a power to sue the states for individual damages? The federal government could. Why can't the individual?

Stone: Well, Your Honor, just to make sure I'm -- I'm keeping myself clear, what I've conceded is that, of course, there's a separate Plan of the Convention waiver for any kind of lawsuit by the federal government against any state. So that applies in and out of the war context regardless. Our position would be that suits in the nature of habeas corpus simply don't implicate whether or not states believe they were -- they gave up their sovereign immunity, because, going back to Blackstone, sovereigns have never thought themselves having the power to erect a state sovereign immunity defense in habeas, neither in English practice nor in American practice. So those habeas cases are interesting for purposes of the discussion of sort of state and federal power, perhaps supremacy issues in other contexts, but the fact 103 that those state habeas cases were permitted tells us nothing about whether or not the states believed they could raise such a -- a sovereign immunity defense, because no state believed it had a sovereign immunity defense to a habeas action. What's missing here is some sort of exercise by Congress or a historical practice that would be an -- an analogue where, pursuant to the exercise of a war power or something related to war, Congress or in English practice had delegated to individuals the ability to bring lawsuits against nonconsenting states for something thematically related to war. You know, so, for example, an individual happened to miss their employment while they'd been conscripted or something like that. If Mr. Torres had presented that, that would be powerful evidence that there was some association between the exercise of war powers and these private damages actions and powerful evidence for a Plan of the Convention waiver. And that's just not here.

Justice Sotomayor: Thank you.

Chief Justice Roberts: Justice Kagan 104 -- oh, I'm sorry, Justice Alito?

Justice Alito: I went out of turn. Mr. Stone, could -- General Stone, could you comment on how far you think the argument would go if we agree with Petitioners? If states could not assert sovereign immunity with respect to any claim that is supported -- that is necessary and proper to raise and -- raise Armies, how far would that go?

Stone: Much further than Union Gas, Your Honor. So, at a minimum, you'd have virtually every power that could be associated with the exercise of war, which, as a basic historical matter, includes the power to tax, borrow, spend, the power to -- to be able to raise money, the ability to -- to restrict commerce in order to direct that individuals may be sanctioned or to mandate the production of certain materiel. Of course, it would go through virtually all of Article I, Section 8's war powers as such, which my friend on the other side summarizes I believe eight of those powers, and then for perhaps any other powers so long as in -- being used in an ancillary sense to either wage war or to make peace. 105 Said differently, it would require essentially the complete abrogation or the complete sort of disregard of Seminole Tribe and every case from it. And it certainly would take the commentary in PennEast and Katz that these are sort of narrow, specific exceptions to a broad rule of sovereignty and it would render those flatly inaccurate.

Chief Justice Roberts: Justice Kagan? Justice Gorsuch? No? Justice Kavanaugh? Justice Barrett? Thank you, counsel. Rebuttal, Mr. Tutt? REBUTTAL ARGUMENT OF ANDREW T. TUTT ON BEHALF OF THE PETITIONER

Andrew T. Tutt: Thank you, Mr. Chief Justice. Just a few points. Texas opened by saying that it's a means/ends distinction, that that's what's at stake, that the powers may be great, but the means can be limited. But, if you go to the Federalist Number 23 by Alexander Hamilton, he addresses this directly, and he says that the means ought to be proportioned to the end. 106 "These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies and the correspondent extent and variety of the means which may be necessary to satisfy them." "There can be no limitation of that authority, which is to provide for the defense and protection of the community, in any manner essential to its efficacy; that is, in any manner essential to the formation, direction, or support of the national forces." This is all in one essay of the Federalist Papers. The purpose of sovereign immunity is to protect liberty and the local autonomy of the states, their democratic accountability. But, in the area of war, it is only by vesting the war powers exclusively in the federal government that liberty can protected in the way that the Constitution intends. The Constitution did not intend to protect an abstract sovereign immunity of the states when it would cost the liberty of individual citizens. The war powers do not favor a peacetime draft over the encouragement 107 of volunteers to put their bodies and their lives on the line in our military. I want to -- I think that Justice Kagan is absolutely right that after PennEast, I think that the analysis is different. A uniquely national power where suits against the states are incidental to its exercise is exactly the kind of power that the Court has held entails a sovereign immunity waiver. This is not going to be limitless. Texas's argument is a bit puzzling because they say that there will be a -- a flood of suits and the federal government will create all kinds of causes of action against the states. And yet, on the other hand, Texas points out that no states have ever been authorized and that states were -- these suits were authorized only very late in the republic because of the special solicitude the government already provides to the states because it understands their importance in the federal system. Captain Torres went to war, and when he came home, he brought a piece of the war with him, and if he had been a member of the local 108 sheriff's department or a U.S. marshal or worked for any other employer, he would have been able to sue to vindicate his rights. But, because he worked for Texas, he had no cause of action. The war powers do not -- do not countenance that result. It's not right. We're asking this Court to make it right. I urge you to reverse. Thank you, Your Honor.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:42 a.m., the case was submitted.)