The US Supreme Court Tuesday heard oral arguments in Torres v. Department of Safety, a case focusing on whether the Congressional war powers allow Congress to authorize suits against nonconsenting States.

In the case, former state trooper Torres resigned from his job with the Texas Department of Safety when the department would not provide accommodations for a condition he developed from his military service. Torres then brought suit against the state under the Uniform Services Employment and Re-employment Rights Act (USERRA), which allows military members to sue to remedy employment discrimination based on their service.

In 2018, a Texas state court ruled that the law was an unconstitutional abridgment of the state’s sovereign immunity. The Supreme granted certiorari to the case in December 2021.

The court heard oral arguments Tuesday, with Justice Thomas participating remotely. Andrew Tutt provided an oral argument on behalf of petitioner Torres. Tutt first began by stating that the US Constitution gave Congress “the tools necessary to fulfill its preeminent national defense function, and the ability to authorize lawsuits.”

He argued that the war powers are “unique and fundamentally different” from other powers granted by the Constitution and that USERRA’s protections are “crucial in light of the structure of the modern military.” In response to a question from Justice Kagan, Tutt argued that the war powers are different because they “are conferred unconditionally and without qualification.” Under the petitioner’s argument, Texas could not assert immunity from USERRA because it would interfere with the power to wage war.

Judd Stone served as counsel for the Department of Safety, and he began by arguing that the states did not authorize Congress to subject states to private actions by delegating war powers to Congress. He argued that the states did not give up all of their powers related to war.

In response to Stone’s arguments, Justice Kavanaugh stated that “a strong argument” from the other side was that individuals are allowed to file suit against the states on issues such as bankruptcy, the Family and Medical Leave Act, and Title VII. He further stated it would be “bizarre not to allow suits in the war powers area, where the national interest is at its apex as compared to those other areas.” The justices also focused on the historical context of the USERRA.

On Monday, the court also heard oral arguments in LeDure v. Union Pacific Railroad Co. and Southwest Airlines Co. v. Saxon.