(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, 

THIRTEENTH DISTRICT 

No. 20–603. Argued March 29, 2022—Decided June 29, 2022 

Article I of the Constitution grants Congress the power “[t]o raise and 

support Armies” and “[t]o provide and maintain a Navy.” §8, cls. 1, 

12–13. Pursuant to that authority, Congress enacted the Uniformed 

Services Employment and Reemployment Rights Act of 1994 

(USERRA), which gives returning servicemembers the right to reclaim 

their prior jobs with state employers and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. 

See 38 U. S. C. §4301 et seq. Petitioner Le Roy Torres enlisted in the 

Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, Torres was exposed to toxic burn pits, a 

method of garbage disposal that sets open fire to all manner of trash, 

human waste, and military equipment. Torres received an honorable 

discharge. But he returned home with constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. These ailments, Torres says, left him unable to work his old job 

as a state trooper. Torres asked his former employer, respondent 

Texas Department of Public Safety (Texas), to accommodate his condition by reemploying him in a different role. Texas refused. So Torres 

sued Texas in state court to enforce his rights under USERRA. 

§4313(a)(3). Texas tried to dismiss the suit by invoking sovereign immunity. The trial court denied the State’s motion. An intermediate 

appellate court reversed, reasoning that, under this Court’s case law, 

Congress could not authorize private suits against nonconsenting 

States pursuant to its Article I powers except under the Bankruptcy 

Clause, citing Central Va. Community College v. Katz, 546 U. S. 356. 

The Supreme Court of Texas denied discretionary review. After the 

decision below, this Court issued PennEast Pipeline Co. v. New Jersey, 

594 U. S. ___. PennEast held that the States waived their sovereign 
 

 

 

 

 

2 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Syllabus 

immunity as to the federal eminent domain power pursuant to the

“plan of the Convention.” The Court then granted Torres’ petition for 

certiorari to determine whether, in light of that intervening ruling, 

USERRA’s damages remedy against state employers is constitutional. 

Held: By ratifying the Constitution, the States agreed their sovereignty 

would yield to the national power to raise and support the Armed 

Forces. Congress may exercise this power to authorize private damages suits against nonconsenting States, as in USERRA. Pp. 3–16.

(a) While courts generally may not hear private suits against nonconsenting States, see Blatchford v. Native Village of Noatak, 501 U. S. 

775, 779, the States remain subject to suit in certain circumstances. 

States may consent to suit, see Sossamon v. Texas, 563 U. S. 277, 284; 

Congress may abrogate States’ immunity under the Fourteenth 

Amendment, see Fitzpatrick v. Bitzer, 427 U. S. 445, 456; and, as relevant here, States may be sued if they agreed their sovereignty would

yield to the exercise of a particular federal power as part of the “plan 

of the Convention,” PennEast, 594 U. S., at ___—that is, if “the structure of the original Constitution itself” reflects a waiver of States’ immunity, Alden v. Maine, 527 U. S. 706, 728. 

Consistent with these principles, the Court long ago found structural waiver as to suits between States, see South Dakota v. North 

Carolina, 192 U. S. 286, and suits by the United States against a State, 

see United States v. Texas, 143 U. S. 621. A century later, in Central 

Va. Community College v. Katz, 546 U. S. 356, the Court recognized 

another structural waiver, holding that Congress may authorize private suits against States under the Bankruptcy Clause. For several 

years, both before and after Katz, the Court declined to acknowledge 

additional waivers of sovereign immunity under Congress’ Article I 

powers or to find Article I authority to abrogate immunity. See, e.g., 

Seminole Tribe of Fla. v. Florida, 517 U. S. 44; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627. 

Last Term, in PennEast, the Court considered whether Congress could, 

pursuant to its eminent domain power, authorize private suits against

States to enforce federally approved condemnations necessary to build 

interstate pipelines. PennEast held that Congress could authorize 

such suits because, upon entering the federal system, the States implicitly agreed their “eminent domain power would yield to that of the

Federal Government.” 594 U. S., at ___. PennEast defined the test 

for structural waiver as whether the federal power is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.” Id., at ___. Pp. 4–6.

(b) Congress’ power to build and maintain the Armed Forces fits 

PennEast’s test, as the Constitution’s text, its history, and this Court’s

precedents show. To begin, the Constitution’s text strongly suggests a 
 

 

 

 

 

 

 

 

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Syllabus 

complete delegation of authority to the Federal Government to provide 

for the common defense. Article I spells out Congress’ many related 

powers across multiple provisions, §8, cls. 1, 11–16; Article II makes 

the President the “Commander in Chief,” §2, cl. 1; and Article IV 

charges the Federal Government with “protect[ing]” States “against

Invasion,” §4. The Constitution also divests the States of like authority, see Art. I, §10, cls. 1, 3, assigning them only a limited role in “the

Appointment of the Officers” to and the “training [of] the Militia,” “according to the discipline prescribed by Congress,” §8, cl. 16. History 

teaches the same lesson. “[T]he want of power in Congress to raise an

army” under the Articles of Confederation had left the National Government “dependen[t] upon the States” to supply military forces via a 

system of quotas and requisition that had nearly cost the fledging Nation victory in the Revolutionary War. Selective Draft Law Cases, 245 

U. S. 366, 381. The Constitution, by design, worked “an entire change

in the first principles of the system,” giving Congress direct power over

the “formation, direction or support of the NATIONAL FORCES.” The 

Federalist No. 23, p. 148 (A. Hamilton). By ratifying that document,

the States well knew that their sovereignty would give way to national 

policy to build and maintain the Armed Forces. Consistent with this 

structural understanding, Congress has long legislated regarding military forces at the expense of state sovereignty. See, e.g., 1 Stat. 182. 

This Court’s precedents likewise show that ordinary background principles of state sovereignty are displaced in this uniquely federal area.

See, e.g., Tarble’s Case, 13 Wall. 397, 398 (the “National government[’s] 

. . . power ‘to raise and support armies’ ” cannot be “question[ed by] 

any State authority”); United States v. Oregon, 366 U. S. 643, 648–649 

(authority “normally left to the States” is displaced by Congress’ “constitutional powers to raise armies and navies”).

Under PennEast’s test, Congress’ power to build and maintain a national military is “complete in itself”: Upon entering the Union, the 

States agreed that their sovereignty would “yield . . . so far as is necessary” to federal policy for the Armed Forces. 594 U. S., at ___. Because the States committed not to “thwart” this federal power, “[t]he

consent of a State,” including to suit, “can never be a condition precedent” to Congress’ chosen exercise. Id., at ___. Pp. 6–12.

(c) No contention to the contrary persuades the Court otherwise. 

The categorical claim that Congress may not exercise its Article I powers to abrogate state sovereign immunity ignores the fact that “congressional abrogation is not the only means of subjecting States to 

suit. . . . States can also be sued if they have consented to suit in the 

plan of the Convention.” PennEast, 594 U. S., at ___. Nor is USERRA’s 

text insufficiently clear to displace potential immunity under Texas 

law. USERRA expressly “supersedes any State law . . . that reduces, 
 

 

 

 

 

 

4 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Syllabus 

limits, or eliminates in any manner any right or benefit provided by 

this chapter, including the establishment of additional prerequisites to

the exercise of any such right or the receipt of any such benefit.” 

§4302(b). Neither Seminole Tribe nor Alden compels a different result. 

Congress’ commerce powers, at issue in Seminole Tribe, are distinguishable from its war powers under PennEast’s “complete in itself” 

inquiry. And in Alden, the Court expressly embraced “ ‘the postulate 

that States . . . shall be immune from suits, without their consent, save 

where there has been “a surrender of this immunity in the plan of the 

convention.” ’ ” 527 U. S., at 730 (emphasis added). That “save where” 

proviso recognizes exceptions for structural waivers, supplying the basis for the Court’s decisions in PennEast and Katz, as well as the decision today. Finally, the idea that PennEast and Katz involved in rem 

actions and the fact that USERRA suits lack a certain founding-era 

pedigree do not make a difference under PennEast’s basic reasoning.

The Court therefore holds that, in joining together to form a Union, 

the States agreed to sacrifice their sovereign immunity for the good of 

the common defense. Pp. 12–16. 

583 S. W. 3d 221, reversed and remanded. 

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAGAN, J., filed a 

concurring opinion. THOMAS, J., filed a dissenting opinion, in which 

ALITO, GORSUCH, and BARRETT, JJ., joined. 
 

 

 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 20–603 

LE ROY TORRES, PETITIONER v. TEXAS 

DEPARTMENT OF PUBLIC SAFETY 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

TEXAS, THIRTEENTH DISTRICT 

[June 29, 2022]

 JUSTICE BREYER delivered the opinion of the Court. 

The Constitution vests in Congress the power “[t]o raise 

and support Armies” and “[t]o provide and maintain a 

Navy.” Art. I, §8, cls. 1, 12–13. Pursuant to that authority, 

Congress enacted a federal law that gives returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them. See Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA), 38 U. S. C.

§4301 et seq. This case asks whether States may invoke

sovereign immunity as a legal defense to block such suits.

In our view, they cannot. Upon entering the Union, the 

States implicitly agreed that their sovereignty would yield 

to federal policy to build and keep a national military.

States thus gave up their immunity from congressionally

authorized suits pursuant to the “‘plan of the Convention,’” 

as part of “‘the structure of the original Constitution itself.’” PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, 

___ (2021) (slip op., at 14) (quoting Alden v. Maine, 527 U. S. 

706, 728 (1999)). 
 

 

2 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

I 

A 

Congress has “broad and sweeping” power “to raise and 

support armies.” United States v. O’Brien, 391 U. S. 367, 

377 (1968). It has long exercised that power to encourage 

service in the Armed Forces in a variety of ways. See, e.g., 

Rumsfeld v. Forum for Academic and Institutional Rights, 

Inc., 547 U. S. 47, 58 (2006) (campus recruiting); Johnson 

v. Robison, 415 U. S. 361, 376 (1974) (educational benefits). 

Since before the United States’ entry into World War II,

Congress has sought, in particular, to smooth volunteers’ 

reentry into civilian life by recognizing veterans’ “right to 

return to civilian employment without adverse effect on . . . 

career progress” in the federal work force and private employment. H. R. Rep. No. 105–448, p. 2 (1998); see Selective

Training and Service Act of 1940, §§8(b)(A)–(B), (e), 54 Stat.

890, 891 (damages remedy against private employers). 

The Vietnam War prompted Congress to extend these

protections to employment by States. Amidst political opposition to the war, “some State and local jurisdictions 

ha[d] demonstrated a reluctance, and even an unwillingness, to reemploy” returning servicemembers. S. Rep.

No. 93–907, p. 110 (1974). So Congress authorized private

damages suits against States to ensure that “veterans who

[had] previously held jobs as school teachers, policemen,

firemen, and other State, county, and city employees” would 

not be denied their old jobs as reprisal for their service. 

Ibid. The statute at issue, USERRA, embodies these protections today. 

B 

Petitioner Le Roy Torres enlisted in the Army Reserves 

in 1989. In 2007, he was called to active duty and deployed 

to Iraq. While serving, Torres was exposed to toxic burn 

pits, a method of garbage disposal that sets open fire to all 

manner of trash, human waste, and military equipment. 
 

Cite as: 597 U. S. ____ (2022) 3 

Opinion of the Court 

Torres received an honorable discharge. But he returned 

home with constrictive bronchitis, a respiratory condition 

that narrowed his airways and made breathing difficult.

These ailments, Torres alleges, changed his life and left him 

unable to work at his old job as a state trooper. Torres 

asked his former employer, respondent Texas Department 

of Public Safety (Texas), to accommodate his condition by 

reemploying him in a different role. Texas refused to do so. 

Torres sued Texas in state court. He argued that Texas

had violated USERRA’s mandate that state employers rehire returning servicemembers, use “reasonable efforts” to

accommodate any service-related disability, or find an 

“equivalent” position (or its “nearest approximation”) where 

such disability prevents the veteran from holding his prior 

position. 38 U. S. C. §4313(a)(3). Texas moved to dismiss 

the suit by invoking sovereign immunity. The trial court 

denied the motion. A divided intermediate appellate court

reversed, stating this Court’s precedents established that 

Congress could not authorize private suits against nonconsenting States pursuant to its Article I powers except under

the Bankruptcy Clause and citing Central Va. Community 

College v. Katz, 546 U. S. 356 (2006). See 583 S. W. 3d 221, 

225–230 (Tex. App. 2018). The Supreme Court of Texas denied discretionary review.

After the decision below, this Court decided PennEast, 

594 U. S. ___. There, we recognized that the States had

waived their sovereign immunity as to the exercise of the 

federal eminent domain power under the structure of the

Constitution pursuant to the “plan of the Convention.” See 

id., at ___ (slip op., at 14). We then granted Torres’ petition

for certiorari to decide whether, in light of that intervening 

decision, USERRA’s damages remedy against state employers is constitutional. 

II 

Congress enacted USERRA as an exercise of its power 
 

4 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

“[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” U. S. Const., Art. I, §8, cls. 12–13. The question before us is whether the Constitution allows Congress 

to enforce these federal reemployment protections by authorizing private litigation against noncompliant state employers that do not wish to consent to suit. 

A 

The Constitution forged a Union, but it also protected the

sovereign prerogatives of States within our government. 

Generally speaking, “the States entered the federal system

with their sovereignty,” including their sovereign immunity, “intact.” Blatchford v. Native Village of Noatak, 501 

U. S. 775, 779 (1991). Basic tenets of sovereign immunity 

teach that courts may not ordinarily hear a suit brought by

any person against a nonconsenting State. See ibid. 

But States still remain subject to suit in certain circumstances. States may, of course, consent to suit. See Sossamon v. Texas, 563 U. S. 277, 284 (2011). Congress may also

enact laws abrogating their immunity under the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 427 U. S. 

445, 456 (1976). And, as relevant here, States may be sued 

if they agreed their sovereignty would yield as part of the

“plan of the Convention,” PennEast, 594 U. S., at ___ (slip 

op., at 15)—that is, if “the structure of the original Constitution itself ” reflects a waiver of States’ sovereign immunity, Alden, 527 U. S., at 728. “[A]ctions do not offend state 

sovereignty” if “the States consented” to them “at the founding.” PennEast, 594 U. S., at ___ (slip op., at 23). 

Alexander Hamilton described three circumstances 

where the “plan of the Convention” implied that the States 

waived their sovereign immunity: “where the Constitution

in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the

Union and in another prohibited the States from exercising 

the like authority; and where it granted an authority to the 
 

 

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Opinion of the Court 

Union, to which a similar authority in the States would be

absolutely and totally contradictory and repugnant.” The 

Federalist No. 32, p. 200 (J. Cooke ed. 1961) (emphasis in 

original); see id., No. 81, at 548–549 (A. Hamilton). 

Consistent with these principles, this Court has found

structural waiver as to suits between States, in South Dakota v. North Carolina, 192 U. S. 286 (1904), and suits by 

the United States against a State, in United States v. Texas, 

143 U. S. 621 (1892). The States, we said, must have recognized that these waivers of immunity from suit were “a 

necessary feature of the formation of a more perfect Union”

and thus “inherent in the constitutional plan.” Principality 

of Monaco v. Mississippi, 292 U. S. 313, 329 (1934). The 

alternative to consenting to litigation between sovereigns,

after all, could be civil war. 

A century later, in Central Va. Community College v. 

Katz, 546 U. S. 356, the Court recognized another structural waiver. We held that States could not assert sovereign immunity to block suits by private parties pursuant to 

federal bankruptcy laws. Id., at 359. There, too, we based 

our holding on the constitutional structure. We noted the 

text’s insistence on “uniform Laws on the subject of Bankruptcies,” U. S. Const., Art. I, §8, cl. 4, the Framers’ concerns about States’ passing patchwork legislation and refusing to discharge the debts of noncitizens (as had 

happened under the Articles of Confederation), and the history of habeas laws related to bankruptcy. See 546 U. S., 

at 368–377. All that evidence led us to conclude that, by

ratifying the Constitution, the States had agreed that their

sovereignty would yield to ensure the effectiveness of national bankruptcy policy. See id., at 379. 

For several years, both before and after Katz, the Court 

declined to acknowledge additional waivers of sovereign immunity under Congress’ Article I powers or to find Article I

authority to abrogate immunity. See, e.g., Seminole Tribe 
 

6 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

of Fla. v. Florida, 517 U. S. 44 (1996); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 

U. S. 627 (1999). Two Terms ago, we even described Katz’s 

analysis as “good for one clause only,” suggesting we would 

not find further waivers under Article I. Allen v. Cooper, 

589 U. S. ___, ___ (2020) (slip op., at 9) (hyphens omitted). 

 Last Term, in PennEast Pipeline Co. v. New Jersey, 594 

U. S. ___, we considered whether Congress could, pursuant 

to its eminent domain power, authorize private parties to 

sue States to enforce federally approved condemnations 

necessary to build interstate pipelines. We held that “when 

the States entered the federal system, they renounced their

right to the ‘highest dominion in the[ir] lands,’” meaning 

they agreed their “eminent domain power would yield to 

that of the Federal Government.” Id., at ___–___ (slip op., 

at 15–16) (quoting Cherokee Nation v. Southern Kansas R. 

Co., 135 U. S. 641, 656 (1890)). Congress could therefore

authorize private actions against States. 

PennEast defined the test for structural waiver as 

whether the federal power at issue is “complete in itself, 

and the States consented to the exercise of that power—in

its entirety—in the plan of the Convention.” 594 U. S., at 

___ (slip op., at 22) (internal quotation marks and citation 

omitted). Where that is so, the States implicitly agreed that 

their sovereignty “would yield to that of the Federal Government ‘so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.’” Id., at ___ (slip 

op., at 16) (quoting Kohl v. United States, 91 U. S. 367, 372 

(1876)). By committing not to “thwart” or frustrate federal 

policy, the States accepted upon ratification that their “consent,” including to suit, could “never be a condition precedent to” Congress’ chosen exercise of its authority. 594 

U. S., at ___, ___ (slip op., at 8, 10) (internal quotation 

marks omitted). The States simply “have no immunity left 

to waive or abrogate.” Id., at ___ (slip op., at 22). 
 

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Opinion of the Court 

B 

Congress’ power to build and maintain the Armed Forces

fits PennEast’s test. The Constitution’s text, its history,

and this Court’s precedents show that “when the States entered the federal system, they renounced their right” to interfere with national policy in this area. Id., at ___ (slip op., 

at 15).

For one thing, the Constitution’s text, across several Articles, strongly suggests a complete delegation of authority 

to the Federal Government to provide for the common defense. Unlike most of the powers given to the National Government, the Constitution spells out the war powers not in

a single, simple phrase, but in many broad, interrelated 

provisions. The Preamble makes the “common defence” one 

of the document’s central projects. Article I gives Congress

authority to “provide for th[at] common Defence” in six 

numbered paragraphs: to “declare War”; “raise and support

Armies”; “provide and maintain a Navy”; “make Rules” for

the Armed Forces; “provide for calling forth the Militia”; 

and “provide for [their] organizing, arming, and disciplining.” §8, cls. 1, 11–16. Article II makes the President the 

“Commander in Chief of the Army and Navy of the United

States, and of the Militia of the several States.” §2, cl. 1. 

And the Federal Government is charged with “protect[ing]

each” State “against Invasion.” Art. IV, §4.

The Constitution also divests the States of like power.

States may not “engage in War, unless actually invaded,” 

“enter into any Treaty,” or “keep Troops, or Ships of War in 

time of Peace.” Art. I, §10, cls. 1, 3. States retain a role in 

“the Appointment of the Officers” to and the “training [of]

the Militia,” but that delegation is strictly cabined. Art. I, 

§8, cl. 16. States must do so “according to the discipline 

prescribed by Congress.” Ibid. These substantial limitations on state authority, together with the assignment of

sweeping power to the Federal Government, provide strong

evidence that the structure of the Constitution prevents 
 

8 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

States from frustrating national objectives in this field.

History teaches the same lesson. “When the Framers met 

in Philadelphia in the summer of 1787, they sought to create a cohesive national sovereign in response to the failings

of the Articles of Confederation.” PennEast, 594 U. S., at 

___ (slip op., at 22). The Founders recognized, first and foremost, “that the confederation produced no security agai[nst] 

foreign invasion; congress not being permitted to prevent a 

war nor to support it by the[ir] own authority,” because 

Congress lacked the power to marshal and maintain a 

fighting force “fit for defence.” 1 Records of the Federal 

Convention of 1787, p. 19 (M. Farrand ed. 1966) (Edmund

Randolph opening remarks) (alterations in original). 

“[T]he want of power in Congress to raise an army” had

left the National Government “dependen[t] upon the 

States” to supply military forces via a system of quotas and 

requisition that had nearly cost the Nation victory in the

Revolutionary War. Selective Draft Law Cases, 245 U. S. 

366, 381 (1918). George Washington warned from the battlefield that, unless Congress is “vested with powers by the

several States” to raise an army, “our cause is lost.” Letter 

to J. Jones (May 31, 1780), in 8 Writings of George Washington 304 (W. Ford ed. 1890). In short, “[t]he experience

of the whole country, during the revolutionary war, established, to the satisfaction of every statesman, the utter inadequacy and impropriety of this system of requisition.” 3 

J. Story, Commentaries on the Constitution of the United 

States §1174, p. 65 (1833) (Story). The need to fix that failing by establishing a strong national power to raise and 

maintain a military was one of the “recognized necessities” 

for calling the Constitutional Convention. Selective Draft 

Law Cases, 245 U. S., at 381. 

The Constitution, by design, worked “an entire change in

the first principles of the system.” The Federalist No. 23, 

at 148 (A. Hamilton). The Framers gave Congress direct 

power over the “formation, direction or support of the 
 

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Opinion of the Court 

NATIONAL FORCES.” Ibid. (emphasis in original). So 

“general and indefinite” were these powers vis-à-vis the

States that “[o]bjections were made against” them as “subversive of the state governments,” which retained “no control on congress” under the new arrangement. 3 Story 

§§1176, 1177, at 67. Some state conventions pitched proposals to limit the reach of Congress’ war powers, but those 

amendments “die[d] away.” Id., §1186, at 74. The States 

ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy. 

Consistent with that structural understanding, Congress 

has, since the founding era, directed raising and maintaining the national military, including at the expense of state

sovereignty. For instance, early Congresses established 

military bonuses to reward service, even requiring Virginia 

to give land to some Revolutionary War officers. See Act of 

Aug. 10, 1790, 1 Stat. 182. Could Virginia have refused to 

go along? We do not think so. 

As President Lincoln reflected while the Civil War raged:

The federal power to raise and maintain a military “‘is

given fully, completely, unconditionally. It is not a power 

to raise armies if State authorities consent; . . . it is a power 

to raise and support armies given to Congress by the Constitution, without an “if.”’” Lichter v. United States, 334 

U. S. 742, 757, n. 4 (1948) (quoting 9 J. Nicolay & J. Hay,

Complete Works of Abraham Lincoln 75–77 (1894)). 

An unbroken line of precedents supports the same conclusion: Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed

Forces. During the Civil War, this Court rejected a State’s

attempt to retrieve, through habeas corpus, a deserted soldier “held in the custody of a recruiting officer of the United

States.” Tarble’s Case, 13 Wall. 397, 398 (1872). The “National government[’s] . . . power ‘to raise and support armies’” cannot be “question[ed by] any State authority,” we 

said. Id., at 408. In Stewart v. Kahn, 11 Wall. 493 (1871), 
 

 

 

10 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

the Court approved a federal statute that, among other provisions, tolled state statutes of limitations in state courts 

for suits against soldiers while they were in service of the 

Union. The Court described Congress’ authority as 

“carr[ying] with it inherently the power” to “remedy” state

efforts to frustrate national aims; objections sounding in ordinary federalism principles were “untenable.” Id., at 507. 

In the early 20th century, the Court again rejected statesovereignty objections in this area, this time to the draft.

See Selective Draft Law Cases, 245 U. S., at 381. We wrote 

that Congress’ authority to raise armies could not be qualified or restricted by the States because the Constitution 

“manifestly intended to give . . . all” such power to the Federal Government and “leave none to the States.” Ibid. 

Modern examples illustrate the same structural point. In 

United States v. Oregon, 366 U. S. 643, 644–649 (1961), this

Court rejected a State’s Tenth Amendment challenge to a 

federal law providing that, when certain veterans die without heirs, their property distributes to veterans’ facilities

rather than escheating to the State. Even though estate

and property law are areas “normally left to the States,” the

Court explained that those background assumptions are

displaced when it comes to Congress’ “constitutional powers 

to raise armies and navies.” Id., at 648–649. When, years

later, the Court adopted a broader view of state sovereignty

under the Tenth Amendment, the Court was careful to clarify that “[n]othing we say in this opinion addresses the

scope of Congress’ authority under its war power.” National 

League of Cities v. Usery, 426 U. S. 833, 854–855, n. 18 

(1976), overruled on other grounds, Garcia v. San Antonio 

Metropolitan Transit Authority, 469 U. S. 528 (1985). 

Nor is the Federal Government’s power limited to the

“context of an actual war,” as we held more recently in Perpich v. Department of Defense, 496 U. S. 334, 349 (1990).

After the Governors of California and Maine refused to allow their States’ National Guard members to be sent on 
Cite as: 597 U. S. ____ (2022) 11 

Opinion of the Court 

training missions in Honduras, Congress eliminated the 

longstanding requirement that the military obtain consent 

from the relevant Governor before transferring National 

Guard members to active military service. Id., at 346. The 

Court rejected the notion that so holding “nullif[ied] an important state power,” instead “recogniz[ing] the supremacy

of federal power in the area of military affairs.” Id., at 351. 

The lesson we draw from these cases is that “‘[t]he power 

to wage war is the power to wage war successfully.’” 

Lichter, 334 U. S., at 780 (quoting address by C. Hughes, 

War Powers Under the Constitution (Sept. 5, 1917)). The 

Framers “‘had emerged from a long struggle which had 

taught them the weakness of a mere confederation,’” so 

“‘they established a Union which could fight with the 

strength of one people under one government entrusted

with the common defence.’” Ibid. Under our constitutional 

order, States may not place any “‘limitations inconsistent’” 

with Congress’ power because “‘every resource of the people

must be at command.’” Ibid. In short, the States agreed to

“dives[t]” themselves of “the traditional diplomatic and military tools that . . . sovereigns possess”—to sacrifice their 

sovereignty for the common defense. Franchise Tax Bd. of 

Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 13). 

It follows that Congress’ power to build and maintain a 

national military is “complete in itself.” PennEast, 594 

U. S., at ___ (slip op., at 22) (internal quotation marks omitted). Text, history, and precedent show the States agreed 

that their sovereignty would “yield . . . so far as is necessary” to national policy to raise and maintain the military. 

Id., at ___ (slip op., at 16) (internal quotation marks omitted). And because States committed themselves not to 

“thwart” the exercise of this federal power, “[t]he consent of 

a State,” including to suit, “can never be a condition precedent to [Congress’] enjoyment” of it. Id., at ___, ___ (slip op., 

at 8, 10) (internal quotation marks omitted). We consequently hold that, as part of the plan of the Convention, the 
 

 

 

 

12 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

States waived their immunity under Congress’ Article I 

power “[t]o raise and support Armies” and “provide and 

maintain a Navy.” §8, cls. 12–13. 

III 

Neither Texas nor the dissent persuades us otherwise.

Texas asserts that “Congress cannot abrogate state sovereign immunity through the exercise of Article I powers.”

Brief for Respondent 33. But, as explained, “congressional

abrogation is not the only means of subjecting States to

suit. . . . States can also be sued if they have consented to 

suit in the plan of the Convention.” PennEast, 594 U. S., at 

___ (slip op., at 15). We recognize that waiver today, as we 

have before in PennEast and Katz. 

The dissent (but not Texas) adds that Congress needed to 

speak more clearly to subject Texas to suit because 

USERRA could be read to incorporate state law, perhaps

including Texas’ immunity laws. See post, at 5–7 (opinion 

of THOMAS, J.). But USERRA’s text is clear: Congress

sought to authorize suits against state employers. The very

provision to which the dissent cites is entitled “Enforcement

of rights with respect to a State or private employer.” 38 

U. S. C. §4323. USERRA elsewhere expressly “supersedes

any State law . . . that reduces, limits, or eliminates in any 

manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the 

exercise of any such right or the receipt of any such benefit.” 

§4302(b). Congress’ clarification that suits proceed “in a

State court of competent jurisdiction in accordance with the 

laws of the State” merely addresses the fact that USERRA 

suits must be brought in state (rather than federal) court.

§4323(b)(2). Under Supremacy Clause principles, Texas 

courts may not enforce contrary state laws to block these 

suits. Cf. Testa v. Katt, 330 U. S. 386, 390–394 (1947). 

Texas and the dissent go on to suggest that the fact that

an area of law “is under the exclusive control of the Federal 
Cite as: 597 U. S. ____ (2022) 13 

Opinion of the Court 

Government” is not alone sufficient to do away with sovereign immunity. Seminole Tribe, 517 U. S., at 72; see post, 

at 11–12. We agree. In Seminole Tribe, we held that Congress could not rely on its Article I commerce powers to abrogate state sovereign immunity simply because that power 

was exclusive. 517 U. S., at 72. But later, in PennEast, we 

found that the federal eminent domain power was “‘complete in itself,’” and held that was enough to find a waiver 

of sovereign immunity in the constitutional structure. 594 

U. S., at ___ (slip op., at 22). It thus matters to the analysis

that federal regulation of commerce (at issue in Seminole 

Tribe) involves goods that, before they travel between 

States or outside a tribe, are subject to regulation by a sovereign other than the Federal Government (a State or 

tribe). That feature of commerce arguably makes the federal regulatory power less than “complete.” The dissent 

takes issue with this “complete in itself ” inquiry. See post, 

at 21–29. But its quarrel lies with PennEast, which used 

the formulation we rely upon today.

In any event, the text, history, and precedent we have described indicate that an assertion of state sovereignty to

frustrate federal prerogatives to raise and maintain military forces would be strongly “contradictory and repugnant” 

to the constitutional order. The Federalist No. 32, at 200 

(A. Hamilton) (emphasis in original). Neither Seminole 

Tribe nor the cases that followed it, such as Florida Prepaid, 527 U. S. 627, considered federal powers that give rise

to these same structural inferences. None of those powers 

(e.g., Indian commerce, interstate commerce, or intellectual 

property) is expressly denied to the States, or operates for 

the benefit of the entire Nation, or proves comparably essential to the survival of the Union—itself a foundational 

purpose for drafting the Constitution. See Brief for United 

States as Amicus Curiae 30–31. These factors, taken together, lead us to conclude that the results in PennEast and 

Katz, not dicta in Seminole Tribe, control this case. 
 

 

 

14 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

The dissent makes two further points. First, it quotes 

Alden v. Maine for the proposition that “‘the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting 

States to private suits for damages in state courts.’” Post, 

at 1, 8–9 (quoting 527 U. S., at 712; emphasis deleted). But 

the dissent would give this sentence more weight than it 

can bear. The quoted passage appears in the introduction

to the Court’s opinion, and it refers summarily to Article I’s

general delegations (i.e., Congress’ broad authority under 

the Supremacy Clause and the Necessary and Proper

Clause). See Alden, 527 U. S., at 712; see also id., at 731– 

733 (discussing same). Alden did not, in this sentence or 

elsewhere, suggest that there were no exceptions under

which Congress could authorize private suits against

States. In fact, Alden said the opposite. The Court expressly embraced “‘the postulate that States . . . shall be 

immune from suits, without their consent, save where there 

has been “a surrender of this immunity in the plan of the 

convention.”’” Id., at 730 (quoting Principality of Monaco, 

292 U. S., at 322–323, in turn quoting The Federalist No. 

81; emphasis added). So, Alden made clear: “In exercising 

its Article I powers Congress may subject the States to private suits in their own courts . . . if there is ‘compelling evidence’ that the States were required to surrender this

power to Congress pursuant to the Constitutional design.” 

527 U. S., at 730–731 (quoting Blatchford, 501 U. S., at 781; 

emphasis added). As we have discussed, PennEast and 

Katz recognize such exceptions as to the federal eminent

domain power and the Bankruptcy Clause. And they establish the test for what constitutes “compelling evidence” of 

structural waiver. 

The dissent next implies that PennEast and Katz create 

special rules regarding waivers of sovereign immunity in 

federal courts that do not apply in state courts. See post, at 
 

 

Cite as: 597 U. S. ____ (2022) 15 

Opinion of the Court 

9–10, and n. 4, 16–17, and n. 7. But those opinions’ reasoning about our constitutional structure is not so limited, as 

Alden reflects. Alden held that Article I did not, in general,

give Congress the power to set aside States’ immunity from 

suit in their own courts, despite the Eleventh Amendment’s 

silence on the subject of state courts. (The Amendment’s

text refers only to federal courts—“The Judicial power of

the United States.”) Like our other state sovereign immunity cases, Alden “understood the Eleventh Amendment to 

stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” 

Blatchford, 501 U. S., at 779; see Alden, 527 U. S., at 755 

(explaining its holding is “implicit in the constitutional 

principle of state sovereign immunity”). It follows that a 

waiver pursuant to the plan of the Convention, as we found 

in PennEast and Katz, displaces the background principles 

of state sovereign immunity wherever those suits proceed. 

Neither Alden nor any other case holds to the contrary.

The dissent would leave us with a constitutional structure that allows Congress to authorize private suits against 

States only by abrogation under the Fourteenth Amendment, by legislation under the Bankruptcy Clause (but only 

for suits in federal courts), or by delegation of the federal

eminent domain power (but, again, only in federal courts).

The logic of that constitutional design is anything but clear. 

Texas tries another tack to distinguish PennEast and 

Katz, focusing on a technical aspect of those cases. Texas 

says that both eminent domain and bankruptcy involved 

in rem proceedings, which are “‘inextricably intertwined’” 

with the exercise of those federal powers. See Brief for Respondent 40 (quoting PennEast, 594 U. S., at ___ (slip op., 

at 17)); see also post, at 23–24. The proceeding before us, 

Texas adds, is not in rem or so intertwined. We agree, of

course, that PennEast discussed the close connection between the exercise of eminent domain and condemnation 

actions. See 594 U. S., at ___ (slip op., at 17); see also Katz, 
 

16 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

Opinion of the Court 

546 U. S., at 369–372. But we read PennEast as resting on

a broader point: The Federal Government’s eminent domain power is complete, such that no State may frustrate

its exercise by claiming immunity to forestall the transfer

of property. And that conclusion applies equally to Congress’ powers to raise and maintain the military. 

Texas further argues that Congress cannot subject it to

suit under USERRA because there is no founding-era history of similar litigation against States. See Brief for Respondent 25. But PennEast did not require any such history, as the dissent acknowledges. 594 U. S., at ___ (slip 

op., at 19) (citing Texas, 143 U. S., at 646); see post, at 14, 

n. 6. Again, in PennEast, we considered the inferences that 

flow from our constitutional structure and asked whether 

States may, consistent with that structure, claim immunity

to frustrate federal objectives. And again, answering that

question here, we find that the States waived their immunity under Article I, §8, cls. 12 and 13. 

Texas’ contrary view would permit States to thwart national military readiness. We need not stray from the statute at hand to see the danger of this approach. If a State— 

or even 25 States—decided to protest a war by refusing to

employ returning servicemembers, Congress, on Texas’ telling, would be powerless to authorize private reinstatement 

suits against those States. The potentially debilitating effect on national security would not matter.

We think it does matter for a simple reason. Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign

immunity for the good of the common defense. 

* * * 

We consequently reverse the judgment of the Texas Court

of Appeals and remand the case for further proceedings not 

inconsistent with this opinion. 

It is so ordered. 
 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

KAGAN, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 20–603 

LE ROY TORRES, PETITIONER v. TEXAS 

DEPARTMENT OF PUBLIC SAFETY 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

TEXAS, THIRTEENTH DISTRICT 

[June 29, 2022] 

JUSTICE KAGAN, concurring. 

In my view, our sovereign immunity decisions have not

followed a straight line. Two years ago, I described Katz’s 

“plan of the Convention” analysis as “good for one clause

only”—i.e., Article I’s Bankruptcy Clause. Allen v. Cooper, 

589 U. S. ___, ___–___ (2020) (slip op., at 8–9) (hyphens 

omitted); see Central Va. Community College v. Katz, 546 

U. S. 356, 373–379 (2006). I thought then that our precedents had shut the door on further Article I exceptions to

state sovereign immunity. But PennEast proved me wrong. 

See PennEast Pipeline Co. v. New Jersey, 594 U. S. ___ 

(2021). The question there was whether the States had consented in the plan of the Convention to the Federal Government’s exercise of Article I’s eminent domain power, including through private parties’ suits. Relying on our prior

decisions, I concluded that the States had not so consented. 

See id., at ___–___ (BARRETT, J., dissenting) (slip op., at 1– 

4). But the Court ruled otherwise. Using a new test, it held

that the eminent domain power was “complete in itself,”

meaning that the States had “consented to the [federal] exercise of that power[] in its entirety.” Id., at ___ (slip op., 

at 22). The question today, given PennEast, is whether the 

same is true of the war powers. Were those powers also

“complete in themselves,” so that the States likewise consented to congressionally authorized private litigation? 
 

 

2 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

KAGAN, J., concurring 

The answer is yes, as the Court holds. Much more than 

eminent domain, war powers lie at the heart of the Convention’s plan. The overriding goal of the Convention was “to

create a cohesive national sovereign in response to the failings of the Articles of Confederation.” Ibid. And among

those failings, none was more important than “the want of 

power in Congress to raise an army and the dependence 

upon the States” to provide armed forces. Selective Draft 

Law Cases, 245 U. S. 366, 381 (1918). For that reason, the 

war powers—more than any other power, and surely more

than eminent domain—were “complete in themselves.” 

They were given by the States, entirely and exclusively, to

the Federal Government. See ante, at 7–12; U. S. Const., 

Art. I, §8, cls. 11–16, §10, cls. 1, 3. PennEast’s analysis thus 

compels today’s result. In setting out the “complete in itself ” test, the Court there answered the question here: At

the Convention, the States waived their sovereign immunity to any suit Congress authorized under the war powers. 
 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 20–603 

LE ROY TORRES, PETITIONER v. TEXAS 

DEPARTMENT OF PUBLIC SAFETY 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

TEXAS, THIRTEENTH DISTRICT 

[June 29, 2022] 

JUSTICE THOMAS, with whom JUSTICE ALITO, JUSTICE 

GORSUCH, and JUSTICE BARRETT join, dissenting. 

More than two decades ago, this Court found it “difficult

to conceive that the Constitution would have been adopted 

if it had been understood to strip the States of immunity 

from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private 

suits in these fora.” Alden v. Maine, 527 U. S. 706, 743 

(1999). Accordingly, we held—without qualification—that

“the powers delegated to Congress under Article I of the 

United States Constitution do not include the power to subject nonconsenting States to private suits for damages in

state courts.” Id., at 712 (emphasis added). 

No longer. Today, by adopting contrived interpretations 

of Alden and the recent decision in PennEast Pipeline Co. v. 

New Jersey, 594 U. S. ___ (2021), the Court holds that at 

least two (and perhaps more) Article I “war powers” do, in 

fact, include “the power to subject nonconsenting States to

private suits for damages in state courts,” Alden, 527 U. S., 

at 712, and that Congress has exercised that power by enacting the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U. S. C. §4301 et 

seq. Alden should have squarely foreclosed that holding.

As the Court there already explained, constitutional text, 
 

2 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

history, and precedent all show that when the States ratified the Constitution, they did not implicitly consent to private damages actions filed in their own courts—whether

authorized by Congress’ war powers or any other Article I 

power. Because the Court today holds otherwise, I respectfully dissent. 

I 

After declaring independence, the former Colonies “considered themselves fully sovereign nations.” Franchise Tax 

Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 6). 

And, when the States ratified the Constitution, “they entered the Union ‘with their sovereignty intact,’” Federal 

Maritime Comm’n v. South Carolina Ports Authority, 535 

U. S. 743, 751 (2002) (quoting Blatchford v. Native Village 

of Noatak, 501 U. S. 775, 779 (1991)), retaining “a substantial portion of the Nation’s primary sovereignty, together 

with the dignity and essential attributes inhering in that 

status,” Alden, 527 U. S., at 714. 

 “‘An integral component’ of the States’ sovereignty was

‘their immunity from private suits’” absent consent. Franchise Tax Bd., 587 U. S., at ___ (slip op., at 6) (quoting Federal Maritime Comm’n, 535 U. S., at 751–752). That “doctrine . . . was universal in the States when the Constitution 

was drafted and ratified,” Alden, 527 U. S., at 715–716; see 

also Hans v. Louisiana, 134 U. S. 1, 16 (1890), because 

“[t]he generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity,” 527 U. S., at 715; see also, e.g., Federal 

Maritime Comm’n, 535 U. S., at 760. In fact, sovereign immunity was so important that “[t]he Constitution never 

would have been ratified if the States and their courts were 

to be stripped of their sovereign authority except as expressly provided by the Constitution itself.” Atascadero 

State Hospital v. Scanlon, 473 U. S. 234, 239, n. 2 (1985); 

see also Ex parte New York, 256 U. S. 490, 497 (1921); 
Cite as: 597 U. S. ____ (2022) 3 

THOMAS, J., dissenting 

Alden, 527 U. S., at 716. 

Although States generally retained their immunity from

suit, “in ratifying the Constitution, [they] did surrender a 

portion of their inherent immunity.” Federal Maritime 

Comm’n, 535 U. S., at 752. As Alexander Hamilton explained in The Federalist, sovereign immunity was part of 

“the general sense and the general practice of mankind,”

and the Constitution therefore left it “with the States” unless they had “surrender[ed]” some portion “of this immunity in the plan of the convention.” The Federalist No. 81, 

pp. 487–488 (C. Rossiter ed. 1961); see also Hans, 134 U. S., 

at 13; Alden, 527 U. S., at 755. 

During the Nation’s first 200 years, this Court recognized 

only two instances in which the States had surrendered 

their sovereign immunity in the constitutional plan, both of 

which involved suits prosecuted by other sovereigns. The 

States had agreed to be sued by other States in this Court, 

see Principality of Monaco v. Mississippi, 292 U. S. 313, 328 

(1934), and by the United States in federal court, see United 

States v. Texas, 143 U. S. 621, 644–645 (1892); Franchise 

Tax Bd., 587 U. S., at ___–___ (slip op., at 9–10). When it 

came to private litigation, however, this Court long maintained that “the Framers thought it an impermissible affront to a State’s dignity to be required to answer the complaints of private parties in federal courts,” Federal 

Maritime Comm’n, 535 U. S., at 760, and that “the Convention did not disturb States’ immunity from private suits,” 

id., at 752. 

Nevertheless, in the last two decades, the Court has recognized two surrenders of sovereign immunity in cases implicating private parties. First, in Central Va. Community 

College v. Katz, 546 U. S. 356 (2006), this Court held that 

States waived immunity against the federal discharge of

debts when they ratified the Bankruptcy Clause. And, in 

PennEast, 594 U. S. ___, it held that States waived immunity against condemnation proceedings brought by private 
 

4 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

parties to whom the Federal Government has delegated its

eminent domain power. Taken together, Katz and PennEast centered on whether or not the plan of the Convention—i.e., the Constitution itself—required States to surrender their sovereign immunity. See Katz, 546 U. S., at 

379; PennEast, 594 U. S., at ___ (slip op., at 15). 

These cases contrast with those that involve congressional “abrogation” of state sovereign immunity. Abrogation rests on some “statement Congress ha[s] made on the

subject of state sovereign immunity.” Katz, 546 U. S., at 

378–379. Specifically, we have held that Congress must enact “unequivocal statutory language” abrogating States’ immunity. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 56 

(1996) (internal quotation marks omitted). That said, the 

line between “plan-of-the-Convention waiver” and “congressional abrogation” is a murky one. Both inquiries ask the

same basic question: whether Congress has authorized suit

against a nonconsenting State pursuant to “a valid exercise 

of constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 78 (2000); see also Katz, 546 U. S., at 

379 (asking whether Congress’ decision to bind States to

discharge orders in bankruptcy proceedings is “within the 

scope of its power to enact ‘Laws on the subject of Bankruptcies’”). And both inquiries center on “history, practice, 

precedent, and the structure of the Constitution,” Alden, 

527 U. S., at 741, to determine whether the Constitution either grants authority to Congress to abrogate immunity or

strips States of their immunity on its own. 

The parties agree that this case involves only plan-of-theConvention waiver. Thus, the question presented is

whether, in ratifying the Constitution, the States surrendered their immunity in their own courts against private 

damages actions authorized by Congress’ war powers. 
Cite as: 597 U. S. ____ (2022) 5 

THOMAS, J., dissenting 

II 

In answering that question, the Court discounts two important points. First, it creates a constitutional problem by 

adopting a questionable interpretation of USERRA that assumes Congress intended to legislate with indifference to 

States’ state-law immunity. Second, the Court cannot escape the fact that Alden already answered the question presented and held that the States did not surrender their 

state-court immunity when ratifying Article I of the Constitution. 

A 

When it was originally enacted, USERRA authorized covered employees to sue States in federal district court. See 

38 U. S. C. §4323(b) (1994 ed.). In 1996, this Court decided 

Seminole Tribe, holding that Congress could not abrogate

state sovereign immunity in federal courts using its Article 

I powers. See 517 U. S., at 72–73. In response to Seminole 

Tribe, Congress amended USERRA in 1998, and the statute 

now provides: “In the case of an action against a State (as

an employer) by a person, the action may be brought in a 

State court of competent jurisdiction in accordance with the 

laws of the State.” §4323(b)(2) (emphasis added). 

 USERRA’s requirement that employee damages actions 

be “in accordance with the laws of the State” would seem to 

include a State’s “laws” that render it immune from suit in 

the State’s own courts, as well as any “laws” that expressly 

waive such immunity. See, e.g., Tex. Govt. Code Ann. 

§311.034 (West 2013); Prairie View A & M Univ. v. Chatha, 

381 S. W. 3d 500, 512 (Tex. 2012). In other words, there is 

nothing in the text of USERRA necessarily implying that 

Congress intended to require nonconsenting States to defend themselves in their own courts.1 The Court, however, 

—————— 1To be sure, if USERRA authorizes suits in state courts only “in accordance with the laws of the State,” the ability to bring such actions 

would vary by State—some States would consent to suit, others would 
 

 

6 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

breezes past USERRA’s language to conclude that the statute “authoriz[es] private litigation against noncompliant

state employers that do not wish to consent to suit.” Ante, 

at 4.2 

To be clear, I am not disputing whether USERRA speaks

clearly enough to express a congressional intent to “abrogate” the States’ sovereign immunity in their own courts; 

plan-of-the-Convention waiver asks whether the States

surrendered that immunity when the Constitution was ratified and thus “agreed . . . not to assert that immunity” in

particular contexts. Katz, 546 U. S., at 373. But even if the 

Constitution itself partially strips state sovereign immunity, it would still fall to Congress to decide whether, and on

what terms, to render States amenable to suit, or to permit 

States to assert immunity. Cf. id., at 379 (“Congress may,

at its option, either treat States in the same way as other 

—————— 

not, and still others would be amenable to suit under the Supremacy 

Clause because their state courts were authorized to hear analogous 

state-law actions against the State. See, e.g., Testa v. Katt, 330 U. S. 

386, 394 (1947). But there is nothing strange about that lack of uniformity; in fact, a House Subcommittee considering the effect of Seminole 

Tribe of Fla. v. Florida, 517 U. S. 44 (1996), on USERRA heard testimony 

suggesting that might be how things worked if covered employees sued

in state courts. See Hearing on USERRA et al. before the Subcommittee 

on Education, Training, Employment and Housing of the House Committee on Veterans’ Affairs, 104th Cong., 2d Sess., 90 (1996) (explaining that

“the rights of state employees to recover under the USERRA might vary

from state to state”). 2The Court invokes 38 U. S. C. §4302(b) to bolster its interpretation of 

§4323, see ante, at 12, but that provision supersedes only those state laws 

that abridge the “right[s]” and “benefit[s]” defined in §4303(2). §4302(b). 

Those “rights and benefits” are “all substantive rights”; they do not “deal

with the procedure or process for enforcing those rights and benefits.” 

Wysocki v. International Bus. Machine Corp., 607 F. 3d 1102, 1106–1107 

(CA6 2010). Meanwhile, §4323 clearly applies to procedure and process 

and its plain text—“in accordance with the laws of the State”—gives no 

hint that Congress meant to supersede state laws governing state sovereign immunity in state courts. 
Cite as: 597 U. S. ____ (2022) 7 

THOMAS, J., dissenting 

creditors insofar as concerns ‘Laws on the subject of Bankruptcies’ or exempt them from the operation of such laws”). 

The Court should not casually consider the constitutionality of USERRA’s supposed subjection of nonconsenting 

States to damages actions in state court when it is not clear

the statute does any such thing. By doing so, the Court 

gives short shrift to the “well-established principle governing the prudent exercise of this Court’s jurisdiction that

normally the Court will not decide a constitutional question 

if there is some other ground upon which to dispose of the

case.” Northwest Austin Municipal Util. Dist. No. One v. 

Holder, 557 U. S. 193, 205 (2009) (internal quotation marks

omitted). 

B 

Having interpreted USERRA to render nonconsenting

States amenable to suit, the Court goes on to distinguish 

Alden v. Maine without any plausible basis for doing so. In 

truth, Alden directly controls this case. 

In Alden, a group of private plaintiffs sued the State of

Maine in state court, invoking a private cause of action created by the Fair Labor Standards Act (FLSA). See 527 

U. S., at 711–712. The question presented was “whether 

Congress has the power, under Article I, to subject nonconsenting States to private suits in their own courts.” Id., at 

730. In a detailed opinion, the Court in Alden held—without qualification—that the States had not consented in the 

plan of the Convention to any congressionally created private damages actions in state court. 

 To begin, Alden framed its inquiry around plan-of-theConvention waiver, not congressional abrogation: “In exercising its Article I powers Congress may subject the States

to private suits in their own courts only if there is compelling evidence that the States were required to surrender this 

power to Congress pursuant to the constitutional design”— 
 

 

8 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

i.e., in the plan of the Convention. Id., at 730–731 (emphasis added; internal quotation marks omitted); see also ante, 

at 4. In determining whether such evidence existed, Alden 

began with the text of the Constitution. See 527 U. S., at 

731. It recognized that Article I, §8, “grants . . . Congress

broad powers to enact legislation in several enumerated areas of national concern”—including, of course, the war powers. Ibid. But neither the breadth of those powers nor their 

connection to “areas of national concern” sufficed to show 

that States ratified the Constitution with the understanding that they had surrendered to Congress any power to authorize private damages actions against them in their own 

courts. See id., at 731–733. 

Alden spoke emphatically and categorically when explaining why the States had effected no such surrender. We 

found it telling that “no one, not even the Constitution’s 

most ardent opponents, suggested the document might

strip the States of the[ir] immunity” from suit “in their own

courts.” Id., at 741. That was likely because “the sovereign’s right to assert immunity from suit in its own courts

was a principle so well established that no one conceived it 

would be altered by the new Constitution.” Ibid. (emphasis

added). We explained how the founding generation’s concern that “Article III might be used to circumvent statecourt immunity” counseled against “infer[ring] that the 

Constitution stripped the States of immunity in their own

courts and allowed Congress to subject them to suit there.” 

Id., at 743. Rather, in light of the historical record, we

found it “difficult to conceive that the Constitution would 

have been adopted if it had been understood to strip the

States of immunity from suit in their own courts and cede

to the Federal Government a power to subject nonconsenting States to private suits in these fora.” Ibid. 

Importantly, the scope of Alden’s holding was broad: “We 

hold that the powers delegated to Congress under Article I

of the United States Constitution do not include the power 
 

 

Cite as: 597 U. S. ____ (2022) 9 

THOMAS, J., dissenting 

to subject nonconsenting States to private suits for damages in state courts.” Id., at 712; see also id., at 754. That 

holding plainly applied to all Article I powers. Thus, we did

not engage in a clause-by-clause parsing of Article I’s various powers, nor did we even mention which Article I power 

authorized the FLSA. It did not matter because the States 

would not have surrendered to Congress any of the immunity they enjoyed in their own courts. 

Finally, concluding its analysis, Alden contrasted the 

States’ amenability to suit “by the United States on behalf

of the employees” with a suit “by the employees” themselves, holding that “history, precedent, and the structure

of the Constitution make clear that, under the plan of the 

Convention, the States have consented to suits of the first 

kind but not of the second.” Id., at 759–760 (emphasis 

added).3 The question that Alden answered plainly embraces the one that the Court answers today. And there is 

no serious dispute that Alden’s explicit holding is irreconcilable with the Court’s holding here. 

* * * 

 Until today, Alden meant what it said. Both Katz and 

PennEast considered plan-of-the-Convention waivers applicable to federal, not state, court. See Katz, 546 U. S., at 360; 

PennEast, 594 U. S., at ___ (slip op., at 4). Nothing in those 

—————— 3The Court ignores all of this and instead invokes inapposite language

elsewhere in Alden. For instance, the Court emphasizes that Alden expressly recognized “ ‘the postulate that States . . . shall be immune from 

suits, without their consent, save where there has been “a surrender of 

this immunity in the plan of the convention.” ’ ” Ante, at 14 (quoting Alden, 

527 U. S., at 730). That is true enough, but beside the point. After stating this “postulate,” Alden exhaustively evaluated constitutional history, 

precedent, and structure and expressly held that the States, “under the 

plan of the Convention, . . . have [not] consented to suits” filed by private 

individuals in state court. Id., at 759–760 (emphasis added). 
 

 

10 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

decisions, therefore, undermined Alden’s categorical holding.4 It is only the Court’s holding today that does so. I 

would adhere to Alden and reaffirm that the States did not 

surrender the immunity applicable in their own courts 

when they delegated the enumerated powers—including 

the war powers—to Congress in Article I. And, because 

Torres has not invoked a waiver of immunity under state

law, I would affirm the judgment of the Texas Court of Appeals. 

III

 Even if Alden’s holding were not alone dispositive, thus 

requiring us to consider our “plan of the Convention” precedents applicable to private actions in federal court, I would 

still conclude that the States have not waived their immunity to private damages actions authorized by the war powers. 

—————— 4The Court asserts that “those opinions’ reasoning . . . is not so limited” to render them inapplicable to state courts. Ante, at 15. But the 

reasoning in Katz is necessarily limited to federal courts, given that federal district courts have “original and exclusive jurisdiction” over all 

bankruptcy proceedings under Title 11. 28 U. S. C. §1334(a). Nor is it 

probable that PennEast silently carved an exception from Alden’s categorical rule. The Framers did not even think to address state sovereign

immunity in state courts because “the sovereign’s right to assert immunity from suit in its own courts was a principle so well established that no

one conceived it would be altered by the new Constitution.” Alden, 527 

U. S., at 741. We should not read PennEast to establish, without discussion, something inconceivable to the founding generation. See 527 U. S., 

at 743. 

Similarly unconvincing is the Court’s assumption that “waiver pursuant to the plan of the Convention,” necessarily “displaces the background 

principles of state sovereign immunity wherever those suits proceed.” 

Ante, at 15. For instance, we have held that “the only forums in which 

the States have consented to suits by one another and by the Federal 

Government are Article III courts.” Franchise Tax Bd. of Cal. v. Hyatt, 

587 U. S. ___, ___ (2019) (slip op., at 10) (emphasis added). A surrender 

of immunity in federal court therefore does not necessarily translate to a 

surrender of immunity in state court. 
Cite as: 597 U. S. ____ (2022) 11 

THOMAS, J., dissenting 

Our settled test for plan-of-the-Convention waiver is a

stringent one: We cannot infer a waiver of sovereign immunity unless there is “compelling evidence that the 

Founders thought such a surrender inherent in the constitutional compact.” Blatchford, 501 U. S., at 781; see also 

Alden, 527 U. S., at 731. “Compelling evidence” of this sort

includes “evidence of the original understanding of the Constitution,” id., at 741, “early congressional practice,” id., at 

743, “the structure of the Constitution” itself, id., at 748, 

and the “theory and reasoning of our earlier cases,” id., at 

745; see also id., at 754. 

Applying this test, it is clear that the States did not implicitly agree to surrender their state-court immunity

against congressional exercises of the war powers. 

A 

Torres claims (and the Court agrees) that the original understanding of the Constitution’s text implies that the 

States agreed to surrender their immunity against private 

actions authorized by Congress’ “war powers,” which include eight powers enumerated in Article I, §8, along with

the Necessary and Proper Clause. See Brief for Petitioner 

4 (invoking Art. I, §8, cls. 1, 10–16, 18); see also ante, at 7 

(listing Art. I, §8, cls. 1, 11–16). In support of that argument, Torres and the Court point out that the war powers

delegated to Congress are sweeping, and that Article I, §10,

expressly and completely divests States of various war-related powers. See ante, at 7–8; Brief for Petitioner 24. This 

argument falters on at least two fronts.

First, Seminole Tribe long ago explained that the breadth

and exclusivity of a federal power does not authorize Congress to subject nonconsenting States to private damages 

actions. Seminole Tribe involved a federal cause of action 

created pursuant to Congress’ authority under the Indian 

Commerce Clause, see 517 U. S., at 60, which this Court 

has said grants Congress “‘plenary and exclusive’” “powers 
 

12 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

to legislate in respect to Indian tribes,” United States v. 

Lara, 541 U. S. 193, 200 (2004). Although Seminole Tribe 

recognized that States had been “divested of virtually all

authority over Indian commerce and Indian tribes,” 517

U. S., at 62, the Court nonetheless held that “state sovereign immunity . . . is not so ephemeral as to dissipate when 

the subject of the suit is an area . . . that is under the exclusive control of the Federal Government,” id., at 72. That 

“the Constitution vests in Congress complete lawmaking

authority over a particular area,” we explained, does not 

implicitly authorize Congress to abrogate immunity with

respect to that power. Ibid.5 

Nor is the answer different when the exclusive federal exercise of a particular power is reinforced by an explicit divestment of state authority under Article I, §10. Our precedents teach that whenever a power is “exercised 

exclusively by Congress, the subject is as completely taken

from the State Legislatures, as if they had been expressly 

forbidden to act on it.” Sturges v. Crowninshield, 4 Wheat. 

122, 193 (1819) (Marshall, C. J., for the Court) (emphasis

added). Whether or not a prohibition on state power also 

appears in Article I, §10, is irrelevant when deciding

whether the Constitution has granted Congress power to

subject nonconsenting States to private suits.

Second, even if express textual divestment of state power 

were relevant, Torres and the Court incorrectly conclude

that the specific divestments listed in Article I, §10, “provide strong evidence” supporting “a complete delegation of

authority to the Federal Government to provide for the common defense.” Ante, at 7. States obviously have no authority to take certain actions specified in Article I, §10. They 

—————— 5 It is true that Seminole Tribe purportedly addressed congressional 

abrogation of sovereign immunity, rather than plan-of-the-Convention 

waiver. But its logic applies equally to the latter context, especially given 

the murky line that our precedents draw between the two concepts. See 

supra, at 4. 
 

 

Cite as: 597 U. S. ____ (2022) 13 

THOMAS, J., dissenting 

cannot, for example, “keep Troops, or Ships of War in time 

of Peace . . . unless actually invaded, or in such imminent 

Danger as will not admit of delay” without the consent of 

Congress. Art. I, §10, cl. 3. But to say that Congress’ much

more general authority to “raise and support Armies,” Art. 

I, §8, cl. 12, acts to completely derogate all state authority

related to the subject is inaccurate. 

States have significant residual police powers that overlap with Congress’ power over the military. For example,

we have sustained state legislation related to the enlistment of men in the U. S. Army and Navy against the charge

that “‘all power of legislation regarding the subject matter 

. . . is conferred upon Congress and withheld from the 

States.’” Gilbert v. Minnesota, 254 U. S. 325, 327–328 

(1920). In doing so, we rejected the idea “that a State has 

no interest or concern in the United States or its armies or 

power of protecting them from public enemies,” and eschewed any “[c]old and technical reasoning” that “insist[s] 

on a separation of the sovereignties” in the army-raising 

context. Id., at 328–329. Similarly, we have held that

“there is no clause of the Constitution which purports, unaided by Congressional enactment, to prohibit” States from

exercising their police powers in ways that arguably burden

Congress’ “power to raise and support armies.” Penn Dairies, Inc. v. Milk Control Comm’n of Pa., 318 U. S. 261, 269 

(1943). Nor have we “implied from the relationship of the 

two governments established by the Constitution” any such

prohibition. Ibid. State regulations “inevitably impos[e]

some burdens on the national government,” but those are 

the “normal incidents of the operation within the same territory of a dual system of government,” and they may persist “save as Congress may act to remove them.” Id., at 271. 

Therefore, even though the Army and Navy Clauses grant 

Congress “exclusive” authority over raising and supporting 

armies and navies, that exclusivity is no different from that

which attends any other Article I power. 
 

 

14 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

To nonetheless find plan-of-the-Convention waiver, as

Torres proposes and the Court accepts, is to hold that a congressional power to pre-empt state law alone demonstrates 

a State’s surrender of sovereign immunity. That line of reasoning, apart from being foreclosed by Seminole Tribe, 

proves too much. The upshot is that the States would have 

consented in the plan of the Convention to surrender their

immunity against the exercise of any Article I power. Because such a result is a dramatic departure from our precedents, and the power granted to Congress under the Army

and Navy Clauses does not displace state regulation any 

more readily or completely than other Article I powers, 

these arguments from constitutional text provide no sound

basis for authorizing private actions against nonconsenting 

States. 

B 

Constitutional history and practice do Torres and the 

Court no better. To begin, we must view the historical evidence in light of the “presumption that no anomalous and 

unheard-of proceedings or suits were intended to be raised

up by the Constitution.” Hans, 134 U. S., at 18; see also 

Alden, 527 U. S., at 727. Applying that presumption, the 

Court in the past has “attribute[d] great significance” to the 

absence of analogous suits “at the time of the founding or 

for many years thereafter.” Federal Maritime Comm’n, 535 

U. S., at 755.6 Moreover, the presumption is arguably at its 

—————— 6 It is true that the Court in PennEast Pipeline Co. v. New Jersey, 594 

U. S. ___ (2021), found plan-of-the-Convention waiver even in “the absence of a perfect historical analogue” to private condemnation suits by

federal delegatees against States. Id., at ___ (slip op., at 19). But 

PennEast excused this absence of historically analogous actions because

it refused to “divorce the eminent domain power from the power to bring 

condemnation actions,” given that “the eminent domain power is inextricably intertwined with the ability to condemn,” and “the federal eminent 

domain power was a means that was ‘known and appropriate’ at the time

of the founding.” Id., at ___–___, ___ (slip op., at 16–17, 19). Thus, the 
Cite as: 597 U. S. ____ (2022) 15 

THOMAS, J., dissenting 

strongest here, for private damages actions were precisely 

“the type of proceedings from which the Framers would

have thought the States possessed immunity.” Id., at 756. 

The Framers would have “thought it an impermissible affront to a State’s dignity” to require it “to defend itself in an

adversarial proceeding against a private party.” Id., at 

760–761. 

To overcome that presumption, Torres and the Court invoke some historical sources that generally discuss the 

scope and importance of Congress’ war-related powers. See 

Brief for Petitioner 26–37; ante, at 8–9. But virtually none 

of them addresses directly the central question here:

whether the States understood that they had surrendered

their sovereign immunity from suit in their own courts

when delegating those powers to Congress. Instead, the 

founding-era history is largely silent on this question, and 

that “silence is most instructive” in confirming that “no one 

conceived that [state sovereign immunity] would be altered 

by the new Constitution[’s]” distribution of war powers. 

Alden, 527 U. S., at 741. “[T]he Founders’ silence is best

explained by the simple fact that no one . . . suggested the

document might strip the States of [their] immunity” under 

the war powers. Ibid. 

More specifically, Torres (but not the Court) points to the 

1783 Treaty of Paris. He maintains that private actions

would not have been anomalous to the Founders because 

they expected British creditors to sue States under the 

treaty in order to collect on their debts. See Brief for Petitioner 27–31. But it is not likely that the Founders did, in 

fact, expect foreign creditor suits against States; “it is more 

likely that they expected creditors to sue their individual 

—————— 

PennEast holding turned on the unique connection between the eminent 

domain power, the ability to initiate condemnation proceedings, and the 

long history of Congress delegating its eminent domain to private parties. See also infra, at 19–20. 
 

 

 

16 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

debtors and rely on the Treaty to defeat any state law defenses.” B. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1910 (2010). And 

when the Eleventh Amendment was adopted “to restore the

original constitutional design” after Chisholm v. Georgia, 2 

Dall. 419 (1793), Alden, 527 U. S., at 722, Congress refused 

“to make an exception for cases arising under treaties made 

under the authority of the United States,” id., at 721 (internal quotation marks omitted). “Congress’ refusal to modify

the text of the Eleventh Amendment to create an exception

to sovereign immunity for cases arising under treaties” suggests that the States’ immunity from private-party litigation extended even to treaty-based claims. Id., at 735; see 

also D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, p. 197 (1997).

Early congressional practice accords with the Framers’ 

assumption that Congress could not use any Article I power

to subject the States to private damages actions in their 

own courts. In fact, we already have “discovered no instance in which [early Congresses] purported to authorize 

suits against nonconsenting States in [state courts].” 

Alden, 527 U. S., at 744. Contrasted against the numerous 

statutes authorizing other federal suits in state courts, it

“appears early Congresses did not believe they had the

power to authorize private suits against the States in their

own courts.” Ibid. 

C 

Constitutional structure also cuts decisively against inferring a surrender of state sovereign immunity in this context. See id., at 748–754. 

First and most fundamentally, all private suits against 

nonconsenting States present “‘the indignity of subjecting

a State to the coercive process of judicial tribunals at the 

instance of private parties.’” Id., at 749 (quoting In re 

Ayers, 123 U. S. 443, 505 (1887)). USERRA’s cause of action 
Cite as: 597 U. S. ____ (2022) 17 

THOMAS, J., dissenting 

is uniquely offensive to the States’ dignity because it purports “to press a State’s own courts into federal service to

coerce the other branches of the State,” thereby “turn[ing]

the State against itself ” and “commandeer[ing] the entire

political machinery of the State against its will and at the 

behest of individuals.” Alden, 527 U. S., at 749. That kind 

of “plenary federal control of state governmental processes 

denigrates the separate sovereignty of the States.” Ibid. 

Second, congressional authorization of private damages

actions “threaten[s] the financial integrity of the States.” 

Id., at 750. It can “create staggering burdens” and give 

“Congress a power and a leverage over the States that is not 

contemplated by our constitutional design.” Ibid.

 Third, representative government itself is jeopardized

when “deliberation by the political process established by 

the citizens of the State” is replaced with “judicial decree 

mandated by the Federal Government and invoked by the

private citizen.” Id., at 751. Political accountability—“essential to our liberty and republican form of government”—

breaks down when “the Federal Government asserts authority over a State’s most fundamental political processes.” Ibid.7 

Notwithstanding these countervailing structural concerns, both Torres and the Court think that constitutional 

structure supports finding plan-of-the-Convention waiver 

because confirming States’ sovereign immunity in their 

own courts would supposedly threaten the Federal Government’s “power to wage war successfully” and jeopardize the 

Nation’s safety. Ante, at 11 (quoting Lichter v. United 

States, 334 U. S. 742, 780 (1948); internal quotation marks 

—————— 7These unique structural dangers posed by granting the Federal Government authority to turn the State against itself again show why the

Court errs in concluding that precedents concerning plan-of-the-Convention waivers applicable to suits in federal court necessarily support waivers of immunity from suit in state court. See ante, at 15; see also supra,

at 10, n. 4. 
 

 

18 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

omitted); Brief for Petitioner 26. But this argument conflates the preservation of state sovereign immunity with a

license to interfere with federal warmaking. As we already

cautioned in Alden, “The constitutional privilege of a State

to assert its sovereign immunity in its own courts does not

confer upon the State a concomitant right to disregard the

Constitution or valid federal law.” 527 U. S., at 754–755. 

For example, the Court notes that early Congresses “established military bonuses to reward service, even requiring Virginia to give land to some Revolutionary War officers.” Ante, at 9 (citing Act of Aug. 10, 1790, ch. 40, 1 Stat. 

182).8 It asks, incredulously, “Could Virginia have refused 

to go along?” Ante, at 9. But that question is a non sequitur. 

No one disputes “the supremacy of federal power in the area

of military affairs.” Perpich v. Department of Defense, 496 

U. S. 334, 351 (1990). Instead, all agree that the United 

States could lawfully sue Virginia in federal court to secure 

an injunction requiring it to comply with federal law. In 

fact, USERRA already authorizes suits by the United

States to enforce USERRA’s requirements. §4323(a)(1). 

—————— 8The Court’s characterization of the Act of Aug. 10, 1790, as “requiring

Virginia to give land to some Revolutionary War officers” “at the expense

of state sovereignty,” ante, at 9, is deeply misleading. Virginia had ceded

the relevant lands to the United States in 1784, but conditionally reserved some of it for the State’s Revolutionary War soldiers. See Wallace 

v. Parker, 6 Pet. 680, 687 (1832) (Marshall, C. J., for the Court). The 

1790 Act opened up the ceded land to those soldiers, and provided that 

the Secretary of War would send the Virginia Governor the names of 

those soldiers who were entitled to the land under Virginia law. See §2, 

1 Stat. 183. The 1790 Act also provided that the land would be surveyed, 

that the Executive Branch would draw up land patents for eligible soldiers, and that the Secretary of State would transmit those patents to 

the Virginia Governor who would, in turn, deliver the patents to the 

grantees. See §§4–6, id., at 183–184. At most, the 1790 Act required the 

Virginia Governor only to deliver advantageous federal land patents to 

the State’s own soldiers. How that statute was enacted “at the expense 

of state sovereignty,” ante, at 9, is beyond me. 
Cite as: 597 U. S. ____ (2022) 19 

THOMAS, J., dissenting 

And even if private suits were necessary to enforce the federal scheme, individuals could still sue in equity to enjoin 

state officials from violating federal law, see Ex parte 

Young, 209 U. S. 123 (1908), or, if Congress authorizes it,

pursue damages actions against such state officials in their 

individual capacities, see, e.g., Rev. Stat. §1979, 42 U. S. C. 

§1983. Ultimately, if the Court reaffirmed Texas’ sovereign

immunity, “[e]stablished rules provide ample means to correct ongoing violations of law and to vindicate the interests

which animate the Supremacy Clause.” Alden, 527 U. S., 

at 757. 

D 

Finally, our precedents do not support finding a surrender of state sovereign immunity here. As explained above, 

Alden is the most on-point precedent—and, in fact, our only 

recent precedent discussing States’ immunity from suit in

their own courts. It therefore disposes of this case. Neither 

Katz nor PennEast supports a different result. 

Katz found plan-of-the-Convention waiver based on the 

“singular nature” of bankruptcy jurisdiction and “the Bankruptcy Clause’s unique history.” 546 U. S., at 369, n. 9. As 

the Court later explained, Katz “viewed bankruptcy as on a

different plane, governed by principles all its own,” and 

nothing in its analysis “invites the kind of general, clauseby-clause reexamination of Article I” that the Court endorses today. Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip 

op., at 9) (internal quotation marks omitted).

For its part, PennEast emphasized several factors unique

to the eminent domain context. First, PennEast discussed 

the Federal Government’s long history of exercising the 

power of eminent domain—including its delegation of that 

power to private parties to take property within state

boundaries. See 594 U. S., at ___ (slip op., at 7). Here, there 

is a long history showing that the Federal Government exercised its war powers, but there is no comparable history 
 

20 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

of the Federal Government using those powers to impose 

financial liabilities on States enforceable by private parties. 

Nor is there any evidence demonstrating that any kind of

judicial proceedings—let alone private damages actions—

are “inextricably intertwined” with the war powers in the 

way that judicial condemnation actions are intertwined

with eminent domain. See supra, at 14–15, n. 6. 

Second, PennEast emphasized that the Constitution

vests the Federal Government “‘with full and complete

power to execute and carry out its purposes’”—including 

the power of eminent domain—and that history shows that 

the Government may exercise that sovereign power 

through private delegatees. 594 U. S., at ___ (slip op., at 

15). Here, there is no argument that employees granted a

cause of action under USERRA are “delegatees” of the war

powers in any meaningful sense.

Third, PennEast reasoned that recognizing New Jersey’s

immunity claim would require federal delegatees to take 

state property, thereby forcing States to file inverse condemnation actions for just compensation. See id., at ___ 

(slip op., at 17). The Court did not think that kind of arrangement “would vindicate the principles underlying state

sovereign immunity,” including the principle of affording

States “the respect owed them as joint sovereigns.” Ibid. 

(internal quotation marks omitted). Here, by contrast, 

there is no sense in which confirming Texas’ immunity 

would similarly undermine the principles underlying that 

immunity. 

* * * 

In the end, the “history, practice, precedent, and the 

structure of the Constitution” all demonstrate that States 

did not surrender their sovereign immunity in their own 

courts when Congress legislates pursuant to one of its war 

powers. Alden, 527 U. S., at 741, 754. 
 

Cite as: 597 U. S. ____ (2022) 21 

THOMAS, J., dissenting 

IV 

The Court nevertheless holds that States surrendered 

their sovereign immunity for any congressional causes of 

action passed pursuant to Article I’s Army and Navy 

Clauses. Ante, at 11–12.9 To reach that conclusion, the 

Court adopts a test that even Torres did not press. Relying

exclusively on PennEast, the Court maintains that plan-ofthe-Convention waiver distills to a single question: whether 

the federal power at issue is “‘complete in itself.’” Ante, at 

6 (quoting PennEast, 594 U. S., at ___ (slip op., at 22)). If 

so, then the States have surrendered their sovereign immunity against any exercises of that power. After framing 

the inquiry this way, the Court concludes that because Congress’ “power to build and maintain the Armed Forces” is 

“‘complete in itself,’” States necessarily relinquished their

sovereign immunity against private damages actions authorized by that power. Ante, at 6, 11. 

In my view, the Court is asking the wrong question. It 

unjustifiably asserts that the entire plan-of-the-Convention 

inquiry rests on whether a power is “complete in itself.” 

Further, its “complete in itself ” standard misreads PennEast, which suggested only that because the federal emi-

—————— 9Although the Court lists the panoply of congressional “war powers” 

that Torres invokes, see ante, at 7, it appears to limit its holding today

only to the Army and Navy Clauses, see ante, at 11–12. In addition, although the Court’s “complete in itself ” inquiry is unsound, see infra, at 

22–29, its opinion at least suggests that plan-of-the-Convention waiver

may be found only if (1) the Constitution includes “many broad, interrelated provisions” delegating the relevant power to the Federal Government, ante, at 7; (2) the Constitution expressly “divests the States of like

power” in Article I, §10, ante, at 7; and (3) the power at issue is “essential

to the survival of the Union” and is “itself a foundational purpose” for 

abandoning the Articles of Confederation and “drafting the Constitution,” ante, at 13. Until the Court jettisons this erroneous decision from

its doctrine, plan-of-the-Convention waiver would appear to exist only 

under those circumstances. 
 

22 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

nent domain power was “complete in itself ” and, by its nature, “inextricably intertwined” with judicial condemnation

proceedings, States surrendered any sovereign immunity

that would otherwise render the eminent domain power incomplete. PennEast, 594 U. S., at ___ (slip op., at 17). By

saddling “completeness” with more analytical weight than

it can bear, the Court has devised a method that has the 

certainty and objectivity of a Rorschach test. Beyond its 

inconsistency with PennEast, this contrivance also threatens to rework or erase the Court’s prevailing sovereign immunity jurisprudence. 

A 

The sentence in PennEast upon which the Court fabricates its test for plan-of-the-Convention waiver reads as follows: “[T]he federal eminent domain power is ‘complete in 

itself,’ and the States consented to the exercise of that 

power—in its entirety—in the plan of the Convention.” 594 

U. S., at ___ (slip op., at 22) (quoting Kohl v. United States, 

91 U. S. 367, 374 (1876); citation omitted). The Court today 

claims that this sentence in PennEast reduced our decadesold State sovereign immunity jurisprudence to merely asking whether a federal power is “complete in itself.” That 

cannot be correct. 

The Court in PennEast borrowed the “complete in itself ” 

idea from Kohl, which had approved the Federal Government’s condemnation of private land to build a post office in

Cincinnati, Ohio. 91 U. S., at 373–374. Although the Federal Government had relied on Ohio’s eminent domain 

power, rather than its own, Kohl made clear that the Federal Government’s authority to condemn land did not depend upon state law. In doing so, Kohl stated that “[i]f the

United States have the [eminent domain] power, it must be

complete in itself.” Id., at 374. “It can neither be enlarged 

nor diminished by a State. Nor can any State prescribe the 

manner in which it must be exercised. The consent of a 
Cite as: 597 U. S. ____ (2022) 23 

THOMAS, J., dissenting 

State can never be a condition precedent to its enjoyment.” 

Ibid. 

Before PennEast, the phrase “complete in itself ” never

appeared in our modern state sovereign immunity precedents. PennEast itself invoked the concept for one purpose:

to reject the contention that one could “[s]eparat[e] the eminent domain power from the power to condemn”—i.e., to 

disaggregate those “inextricably intertwined” powers—

when determining whether the history of federal eminent 

domain supported finding a waiver of state sovereign immunity. 594 U. S., at ___ (slip op., at 17). According to 

PennEast, to deprive the Federal Government of a power to

condemn property in judicial proceedings brought by private delegatees would be tantamount to depriving the Government of part of the eminent domain power itself, contrary to Kohl’s characterization of that power as “complete 

in itself.” 594 U. S., at ___–___ (slip op., at 17–18). 

The Court today errs by attributing to Kohl an outsized 

role in PennEast’s sovereign immunity analysis. The Court 

in PennEast never stated that “completeness in itself ” represented the governing test for plan-of-the-Convention

waiver. Likewise, PennEast made no effort to explain how 

the “complete in itself ” inquiry would work beyond the context of eminent domain. And because PennEast did not invoke Kohl to break new doctrinal ground, the Court made 

no attempt to reconcile the “complete in itself ” inquiry with

this Court’s longstanding sovereign immunity precedents

(e.g., Alden, Seminole Tribe, Federal Maritime Comm’n, 

Hans, etc.). Again, if PennEast had made “completeness in 

itself ” the applicable test, surely the Court would have discussed the concept more thoroughly.

The Court compounds its overreading of PennEast’s 

“complete in itself ” language by unjustifiably dismissing 

PennEast’s “inextricably intertwined” rationale as a mere 

“technical aspect” of the decision. Ante, at 15. PennEast is 

best read to stand for the proposition that, because every 
 

 

24 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

federal power must be “complete in itself,” the States surrendered their sovereign immunity with respect to any federal power that is “inextricably intertwined” with judicial 

proceedings, like eminent domain; otherwise, sovereign immunity would excuse the States from the judicial proceeding and the federal power would be incomplete. PennEast, 

594 U. S., at ___–___ (slip op., at 16–17) (linking completeness of eminent domain power to condemnation proceedings). Yet, now, the Court abandons the only limiting principle in PennEast’s test.10 

That is mistaken. To begin with, disaggregating the 

“complete in itself ” standard from PennEast’s “inextricably

intertwined” justification renders meaningless the idea of 

“completeness” in the context of state sovereign immunity.

Consider the Court’s opinion here, which says that any federal power “complete in itself ” must be accompanied with a 

surrender of state sovereign immunity. The Court does not 

define what it means for a federal power to be “complete in 

itself,” except that “‘the States consented to the exercise of 

that power—in its entirety—in the plan of the Convention.’” Ante, at 6 (quoting PennEast, 594 U. S., at ___ (slip 

op., at 22)). But that self-referential definition begs the 

question. If the Court tied the “completeness” of a federal 

power to an inherent connection with judicial proceedings, 

it could give the term independent meaning and make 

sense of PennEast’s actual analysis.

Worse still, today’s decision removes the one important 

guardrail on the “completeness” inquiry that PennEast described. Absent that limit, the Court’s indefinite test will 

provide future courts cover to further erode the States’ sovereign immunity. 

—————— 10My “quarrel” therefore does not “li[e] with PennEast,” ante, at 13, but 

with the Court’s decision today to convert PennEast’s “complete in itself ” 

language into an all-encompassing sovereign-immunity test that is divorced from PennEast’s “inextricably intertwined” principle. 
Cite as: 597 U. S. ____ (2022) 25 

THOMAS, J., dissenting 

B 

To the extent that the Court’s new “complete in itself ” 

standard has any definable contours, it is inconsistent with

our modern sovereign immunity doctrine and, in particular, 

Seminole Tribe. 

As I noted above, the Court does not define what it means 

for a federal power to be “complete in itself ” under 

PennEast and Kohl. All we are told is that eminent domain 

and the powers to raise and support armies and navies are

powers “complete” in themselves. See ante, at 6, 11. 

The Court’s “completeness” standard is indeterminate in 

large part because the Court fails to recognize that the concept of a federal power being “complete in itself ” long predates Kohl and means something quite different from what 

the Court says it does. In fact, the phrase’s provenance in 

our jurisprudence dates back to no less seminal a decision 

than Chief Justice Marshall’s opinion in Gibbons v. Ogden, 

9 Wheat. 1 (1824). There, the Court stated that Congress’ 

power “[t]o regulate Commerce with foreign Nations, and 

among the several States,” U. S. Const., Art. I, §8, cl. 3, “like 

all others vested in Congress, is complete in itself, may be

exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution,” 9 

Wheat., at 196 (emphasis added). 

Gibbons’ discussion is revealing. First, unlike the Court’s 

decision today, which attempts to cabin congressional powers that are “complete in themselves” to only a few, Gibbons 

is explicit that it considered every power vested in Congress 

to be “complete in itself.” Ibid. That understanding would 

explain why Kohl said that “[i]f the United States have the 

power, it must be complete in itself.” 91 U. S., at 374 (emphasis added). Second, unlike the Court today, Gibbons defines what it means for a power to be complete in itself—

the power “may be exercised to its utmost extent” with “no 

limitations” beyond those in Constitution itself. 9 Wheat., 

at 196. In other words, the power is plenary as to those 
 

26 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

subjects to which it applies. See id., at 197. 

Gibbons’ understanding of a congressional power being 

“complete in itself ” was repeated by this Court time and

time again for nearly two centuries. Almost always, the

Court used the term to refer to Congress’ authority to regulate interstate and foreign commerce.11 And, over time, the 

Court confirmed that because Congress’ power over interstate commerce “is plenary and complete in itself . . . [i]t follows that no form of state activity can constitutionally 

thwart the regulatory power granted by the commerce 

clause to Congress.” United States v. Wrightwood Dairy 

Co., 315 U. S. 110, 119 (1942); see also Wickard v. Filburn, 

317 U. S. 111, 124 (1942). This language echoes Kohl’s 

holding that the federal eminent domain power “can neither 

be enlarged nor diminished by a State.” 91 U. S., at 374. 

Ignoring this long history about the very “completeness” 

standard that it purports to apply, the Court grasps for 

some basis to explain how its decision is consistent with this

Court’s understanding of Congress’ commerce power in 

Seminole Tribe. It asserts that Congress’ power under the 

Army and Navy Clauses is somehow “complete in itself ” 

while its power under the Commerce Clause is less than

“complete” because “federal regulation of commerce (at issue in Seminole Tribe) involves goods that, before they 

—————— 11See, e.g., Brown v. Maryland, 12 Wheat. 419, 446 (1827) (Marshall, 

C. J., for the Court) (a power “complete in itself ” is “coextensive with the 

subject on which it acts”); Kidd v. Pearson, 128 U. S. 1, 17 (1888); 

Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228 (1899); 

Lottery Case, 188 U. S. 321, 347 (1903); Second Employers’ Liability 

Cases, 223 U. S. 1, 47 (1912); Hoke v. United States, 227 U. S. 308, 323 

(1913); United States v. Carolene Products Co., 304 U. S. 144, 147 (1938); 

United States v. Darby, 312 U. S. 100, 114 (1941); Heart of Atlanta Motel, 

Inc. v. United States, 379 U. S. 241, 254–255 (1964); Hodel v. Virginia 

Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981); 

United States v. Lopez, 514 U. S. 549, 553 (1995); see also South Carolina 

v. Katzenbach, 383 U. S. 301, 327 (1966) (characterizing Congress’ authority under §2 of the Fifteenth Amendment as “ ‘complete in itself ’ ”). 
 

Cite as: 597 U. S. ____ (2022) 27 

THOMAS, J., dissenting 

travel between States or outside a tribe, are subject to regulation by a sovereign other than the Federal Government 

(a State or tribe).” Ante, at 13. 

But the Court’s proposed distinction makes no sense. For 

one, it conflicts with the Court’s longstanding characterization of Congress’ commerce power as plenary. See, e.g., Armour & Co. v. Virginia, 246 U. S. 1, 6 (1918). As long as the

goods mentioned by the Court are in fact part of “interstate

commerce,” then Congress has authority to regulate their

travel at all times. For another, it does nothing to distinguish Congress’ commerce power from its power to raise 

and maintain a military. Following the Court’s logic, one

could just as easily say that Congress’ power under the 

Army and Navy Clauses is “less than complete” because 

“federal regulation of soldiers involves men and women 

who, before they join the military, are subject to regulation 

by a sovereign other than the Federal Government.” Despite the Court’s efforts, its “completeness” analysis simply 

fails to distinguish the Army and Navy Clauses from other 

Article I powers delegated to Congress in the plan of the

Convention.12 

—————— 12The Court also makes what appears to be an alternative argument. 

Invoking Hamilton’s discussion of state sovereignty in The Federalist, 

the Court says that States surrendered their sovereign immunity where 

the Constitution “ ‘granted an authority to the Union, to which a similar

authority in the States would be absolutely and totally contradictory and 

repugnant.’” Ante, at 4–5 (quoting The Federalist No. 32, p. 200 (J. 

Cooke ed. 1961)). The Court then remarks, seemingly in dicta, that “an 

assertion of state sovereignty to frustrate federal prerogatives to raise

and maintain military forces would be strongly ‘contradictory and repugnant’ to the constitutional order.” Ante, at 13 (quoting The Federalist 

No. 32, at 200). But that reasoning is hardly different from the argument

made by Justice Souter when he dissented in Seminole Tribe with respect 

to the Indian Commerce Clause and Congress’ exclusive authority in that 

area. See 517 U. S., at 148 (“[S]ince the States have no sovereignty in 

the regulation of commerce with the tribes, on Hamilton’s view there is 

no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce”). Similarly, the Court has often held 
 

 

28 TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY 

THOMAS, J., dissenting 

Most troubling, however, is the clear parallel between the

Court’s analysis today and the discredited approach to sovereign immunity that we rejected in Seminole Tribe. For 

example, in Parden v. Terminal R. Co. of Ala. Docks Dept., 

377 U. S. 184 (1964), the Court relied on Gibbons’ “complete

in itself ” language to hold that “the States surrendered a

portion of their sovereignty when they granted Congress 

the power to regulate commerce.” Id., at 191; see also id., 

at 192. Parden reasoned, not unlike the Court today, that

“[t]he sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution,” and that granting Congress

“plenary power to regulate commerce” amounts to a surrender of immunity. Id., at 191 (internal quotation marks 

omitted).

 Similarly, in Pennsylvania v. Union Gas Co., 491 U. S. 1 

(1989), the plurality emphasized how “[i]t would be difficult

to overstate the breadth and depth of the commerce power,” 

id., at 20, and how the “[t]he Commerce Clause with one

hand gives power to Congress while, with the other, it takes

power away from the States,” id., at 16. In light of this dual

grant of federal authority and divestment of state authority, the plurality thought Congress’ commerce power “would 

be incomplete without the authority to render States liable 

in damages.” Id., at 19 (emphasis added). To complete that

congressional power, the plurality reasoned that “to the extent that the States gave Congress the authority to regulate

commerce, they also relinquished their immunity where 

Congress found it necessary, in exercising this authority, to 

—————— 

that Congress’ power to regulate interstate and foreign commerce is also

“exclusive.” E.g., Cloverleaf Butter Co. v. Patterson, 315 U. S. 148, 154– 

155 (1942); Board of Trustees of Univ. of Ill. v. United States, 289 U. S. 

48, 56–57 (1933). So again, the Court cannot explain how its interpretation of Hamilton or its understanding of the war powers coheres with 

Seminole Tribe and does not sweep in other Article I powers like the 

Commerce Clause. 
 

Cite as: 597 U. S. ____ (2022) 29 

THOMAS, J., dissenting 

render them liable.” Id., at 19–20. 

 We repudiated Parden and overruled Union Gas in Seminole Tribe. See 517 U. S., at 66; see also College Savings 

Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 

527 U. S. 666, 683 (1999) (Seminole Tribe “expressly repudiate[d]” Parden’s theory of plan-of-the-Convention

waiver). Therefore, if Seminole Tribe was right, then the 

Court’s decision today is wrong. Hopefully, the Court will

someday purge the newly fashioned “completeness” standard from our jurisprudence. 

* * * 

“Congress has ample means to ensure compliance with

valid federal laws, but it must respect the sovereignty of the 

States.” Alden, 527 U. S., at 758. If the Court’s reading of

USERRA is correct—and I am unsure it is, see supra, at 5– 

7—then Congress has not “accord[ed] States the esteem due

to them as joint participants in a federal system.” 527 U. S., 

at 758. To nonetheless deem USERRA constitutional, the 

Court brushes aside a 23-year-old, pathbreaking precedent,

while elevating a single phrase, made in passing in a oneyear-old, highly circumscribed precedent. It then uses that 

phrase to fashion a test for plan-of-the-Convention waiver 

that mimics earlier attempts by this Court to deny States 

the dignity owed to them in our system of dual federalism.

Our sovereign States deserved better. I respectfully dissent.