Torres v. Texas Department of Public Safety

(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 em-
ployers 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 de-
ployed 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 res-
piratory condition that narrowed his airways and made breathing dif-
ficult. 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 condi-
tion 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 im-
munity. 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 dam-
ages suits against nonconsenting States, as in USERRA. Pp. 3–16.
(a) While courts generally may not hear private suits against non-
consenting 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 rele-
vant 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 struc-
ture of the original Constitution itself” reflects a waiver of States’ im-
munity, Alden v. Maine, 527 U. S. 706, 728.
Consistent with these principles, the Court long ago found struc-
tural 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 pri-
vate 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 Post-
secondary 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 im-
plicitly 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 it-
self, and the States consented to the exercise of that power—in its en-
tirety—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
 Cite as: 597 U. S. ____ (2022) 3

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 author-
ity, 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,” “ac-
cording 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 Gov-
ernment “dependen[t] upon the States” to supply military forces via a
system of quotas and requisition that had nearly cost the fledging Na-
tion 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 mil-
itary forces at the expense of state sovereignty. See, e.g., 1 Stat. 182.
This Court’s precedents likewise show that ordinary background prin-
ciples of state sovereignty are displaced in this uniquely federal area.
See, e.g., Tarble’s Case, 13 Wall. 397, 398 (the “National government[’s]
. . . power ‘to raise and support armies’ ” cannot be “question[ed by]
any State authority”); United States v. Oregon, 366 U. S. 643, 648–649
(authority “normally left to the States” is displaced by Congress’ “con-
stitutional powers to raise armies and navies”).
Under PennEast’s test, Congress’ power to build and maintain a na-
tional military is “complete in itself”: Upon entering the Union, the
States agreed that their sovereignty would “yield . . . so far as is nec-
essary” to federal policy for the Armed Forces. 594 U. S., at ___. Be-
cause the States committed not to “thwart” this federal power, “[t]he
consent of a State,” including to suit, “can never be a condition prece-
dent” to Congress’ chosen exercise. Id., at ___. Pp. 6–12.
(c) No contention to the contrary persuades the Court otherwise.
The categorical claim that Congress may not exercise its Article I pow-
ers to abrogate state sovereign immunity ignores the fact that “con-
gressional 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 distin-
guishable 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 ba-
sis for the Court’s decisions in PennEast and Katz, as well as the deci-
sion 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, Wash-
ington, 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 veter-
ans the right to reclaim their prior jobs with state employ-
ers and authorizes suit if those employers refuse to accom-
modate 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 it-
self.’ ” 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 em-
ployment. H. R. Rep. No. 105–448, p. 2 (1998); see Selective
Training and Service Act of 1940, §§8(b)(A)–(B), (e), 54 Stat.
890, 891 (damages remedy against private employers).
The Vietnam War prompted Congress to extend these
protections to employment by States. Amidst political op-
position to the war, “some State and local jurisdictions
ha[d ] demonstrated a reluctance, and even an unwilling-
ness, 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 pro-
tections 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.
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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 re-
hire 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 noncon-
senting States pursuant to its Article I powers except under
the Bankruptcy Clause and citing Central Va. Community
College v. Katz, 546 U. S. 356 (2006). See 583 S. W. 3d 221,
225–230 (Tex. App. 2018). The Supreme Court of Texas de-
nied discretionary review.
After the decision below, this Court decided PennEast,
594 U. S. ___. There, we recognized that the States had
waived their sovereign immunity as to the exercise of the
federal eminent domain power under the structure of the
Constitution pursuant to the “plan of the Convention.” See
id., at ___ (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 employ-
ers is constitutional.
II
Congress enacted USERRA as an exercise of its power
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Opinion of the Court

“[t]o raise and support Armies” and “[t]o provide and main-
tain a Navy.” U. S. Const., Art. I, §8, cls. 12–13. The ques-
tion before us is whether the Constitution allows Congress
to enforce these federal reemployment protections by au-
thorizing private litigation against noncompliant state em-
ployers that do not wish to consent to suit.
A
The Constitution forged a Union, but it also protected the
sovereign prerogatives of States within our government.
Generally speaking, “the States entered the federal system
with their sovereignty,” including their sovereign immun-
ity, “intact.” Blatchford v. Native Village of Noatak, 501
U. S. 775, 779 (1991). Basic tenets of sovereign immunity
teach that courts may not ordinarily hear a suit brought by
any person against a nonconsenting State. See ibid.
But States still remain subject to suit in certain circum-
stances. States may, of course, consent to suit. See Sossa-
mon v. Texas, 563 U. S. 277, 284 (2011). Congress may also
enact laws abrogating their immunity under the Four-
teenth 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 Consti-
tution itself ” reflects a waiver of States’ sovereign immun-
ity, Alden, 527 U. S., at 728. “[A]ctions do not offend state
sovereignty” if “the States consented” to them “at the found-
ing.” 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 Un-
ion; 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 Da-
kota v. North Carolina, 192 U. S. 286 (1904), and suits by
the United States against a State, in United States v. Texas,
143 U. S. 621 (1892). The States, we said, must have rec-
ognized 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 struc-
tural waiver. We held that States could not assert sover-
eign 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 Bank-
ruptcies,” U. S. Const., Art. I, §8, cl. 4, the Framers’ con-
cerns about States’ passing patchwork legislation and re-
fusing to discharge the debts of noncitizens (as had
happened under the Articles of Confederation), and the his-
tory 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 na-
tional bankruptcy policy. See id., at 379.
For several years, both before and after Katz, the Court
declined to acknowledge additional waivers of sovereign im-
munity 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 Post-
secondary Ed. Expense Bd. v. College Savings Bank, 527
U. S. 627 (1999). Two Terms ago, we even described Katz’s
analysis as “good for one clause only,” suggesting we would
not 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 Gov-
ernment ‘so far as is necessary to the enjoyment of the pow-
ers 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 “con-
sent,” including to suit, could “never be a condition prece-
dent 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 en-
tered the federal system, they renounced their right” to in-
terfere with national policy in this area. Id., at ___ (slip op.,
at 15).
For one thing, the Constitution’s text, across several Ar-
ticles, strongly suggests a complete delegation of authority
to the Federal Government to provide for the common de-
fense. Unlike most of the powers given to the National Gov-
ernment, 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 disciplin-
ing.” §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 limita-
tions on state authority, together with the assignment of
sweeping power to the Federal Government, provide strong
evidence that the structure of the Constitution prevents
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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 cre-
ate 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 fore-
most, “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 bat-
tlefield 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 Wash-
ington 304 (W. Ford ed. 1890). In short, “[t]he experience
of the whole country, during the revolutionary war, estab-
lished, to the satisfaction of every statesman, the utter in-
adequacy 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 fail-
ing 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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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 “sub-
versive of the state governments,” which retained “no con-
trol on congress” under the new arrangement. 3 Story
§§1176, 1177, at 67. Some state conventions pitched pro-
posals 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 sov-
ereignty would give way to national military policy.
Consistent with that structural understanding, Congress
has, since the founding era, directed raising and maintain-
ing 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 Con-
stitution, 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 con-
clusion: Congress may legislate at the expense of tradi-
tional 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 sol-
dier “held in the custody of a recruiting officer of the United
States.” Tarble’s Case, 13 Wall. 397, 398 (1872). The “Na-
tional government[’s] . . . power ‘to raise and support ar-
mies’ ” 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 pro-
visions, 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 or-
dinary federalism principles were “untenable.” Id., at 507.
In the early 20th century, the Court again rejected state-
sovereignty objections in this area, this time to the draft.
See Selective Draft Law Cases, 245 U. S., at 381. We wrote
that Congress’ authority to raise armies could not be quali-
fied or restricted by the States because the Constitution
“manifestly intended to give . . . all” such power to the Fed-
eral Government and “leave none to the States.” Ibid.
Modern examples illustrate the same structural point. In
United States v. Oregon, 366 U. S. 643, 644–649 (1961), this
Court rejected a State’s Tenth Amendment challenge to a
federal law providing that, when certain veterans die with-
out heirs, their property distributes to veterans’ facilities
rather than escheating to the State. Even though estate
and property law are areas “normally left to the States,” the
Court explained that those background assumptions are
displaced when it comes to Congress’ “constitutional powers
to raise armies and navies.” Id., at 648–649. When, years
later, the Court adopted a broader view of state sovereignty
under the Tenth Amendment, the Court was careful to clar-
ify that “[n]othing we say in this opinion addresses the
scope of Congress’ authority under its war power.” National
League of Cities v. Usery, 426 U. S. 833, 854–855, n. 18
(1976), overruled on other grounds, Garcia v. San Antonio
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 Per-
pich v. Department of Defense, 496 U. S. 334, 349 (1990).
After the Governors of California and Maine refused to al-
low 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 im-
portant 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 mil-
itary 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 omit-
ted). Text, history, and precedent show the States agreed
that their sovereignty would “yield . . . so far as is neces-
sary” to national policy to raise and maintain the military.
Id., at ___ (slip op., at 16) (internal quotation marks omit-
ted). 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 prece-
dent to [Congress’] enjoyment” of it. Id., at ___, ___ (slip op.,
at 8, 10) (internal quotation marks omitted). We conse-
quently 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 sover-
eign immunity through the exercise of Article I powers.”
Brief for Respondent 33. But, as explained, “congressional
abrogation is not the only means of subjecting States to
suit. . . . States can also be sued if they have consented to
suit in the plan of the Convention.” PennEast, 594 U. S., at
___ (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, in-
cluding 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 sover-
eign immunity. Seminole Tribe, 517 U. S., at 72; see post,
at 11–12. We agree. In Seminole Tribe, we held that Con-
gress could not rely on its Article I commerce powers to ab-
rogate 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 “ ‘com-
plete 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 sov-
ereign other than the Federal Government (a State or
tribe). That feature of commerce arguably makes the fed-
eral 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 de-
scribed indicate that an assertion of state sovereignty to
frustrate federal prerogatives to raise and maintain mili-
tary 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 Pre-
paid, 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 es-
sential 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 to-
gether, 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 dele-
gated to Congress under Article I of the United States Con-
stitution do not include the power to subject nonconsenting
States to private suits for damages in state courts.’ ” Post,
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 ex-
pressly 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 pri-
vate suits in their own courts . . . if there is ‘compelling ev-
idence’ 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 estab-
lish 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’ reason-
ing 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 immun-
ity cases, Alden “understood the Eleventh Amendment to
stand not so much for what it says, but for the presupposi-
tion 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 struc-
ture that allows Congress to authorize private suits against
States only by abrogation under the Fourteenth Amend-
ment, by legislation under the Bankruptcy Clause (but only
for suits in federal courts), or by delegation of the federal
eminent domain power (but, again, only in federal courts).
The logic of that constitutional design is anything but clear.
Texas tries another tack to distinguish PennEast and
Katz, focusing on a technical aspect of those cases. Texas
says that both eminent domain and bankruptcy involved
in rem proceedings, which are “ ‘inextricably intertwined’ ”
with the exercise of those federal powers. See Brief for Re-
spondent 40 (quoting PennEast, 594 U. S., at ___ (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 be-
tween 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 do-
main 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 Con-
gress’ 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 his-
tory of similar litigation against States. See Brief for Re-
spondent 25. But PennEast did not require any such his-
tory, as the dissent acknowledges. 594 U. S., at ___ (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 immun-
ity under Article I, §8, cls. 12 and 13.
Texas’ contrary view would permit States to thwart na-
tional military readiness. We need not stray from the stat-
ute at hand to see the danger of this approach. If a State—
or even 25 States—decided to protest a war by refusing to
employ returning servicemembers, Congress, on Texas’ tell-
ing, would be powerless to authorize private reinstatement
suits against those States. The potentially debilitating ef-
fect on national security would not matter.
We think it does matter for a simple reason. Text, his-
tory, and precedent show that the States, in coming to-
gether 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 prece-
dents 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 con-
sented in the plan of the Convention to the Federal Govern-
ment’s exercise of Article I’s eminent domain power, includ-
ing 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] ex-
ercise 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 con-
sented 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 Conven-
tion’s plan. The overriding goal of the Convention was “to
create a cohesive national sovereign in response to the fail-
ings of the Articles of Confederation.” Ibid. And among
those failings, none was more important than “the want of
power in Congress to raise an army and the dependence
upon the States” to provide armed forces. Selective Draft
Law Cases, 245 U. S. 366, 381 (1918). For that reason, the
war powers—more than any other power, and surely more
than eminent domain—were “complete in themselves.”
They were given by the States, entirely and exclusively, to
the Federal Government. See ante, at 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 it-
self ” test, the Court there answered the question here: At
the Convention, the States waived their sovereign immun-
ity 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 Gov-
ernment a power to subject nonconsenting States to private
suits in these fora.” Alden v. Maine, 527 U. S. 706, 743
(1999). Accordingly, we held—without qualification—that
“the powers delegated to Congress under Article I of the
United States Constitution do not include the power to sub-
ject nonconsenting States to private suits for damages in
state courts.” Id., at 712 (emphasis added).
No longer. Today, by adopting contrived interpretations
of Alden and the recent decision in PennEast Pipeline Co. v.
New Jersey, 594 U. S. ___ (2021), the Court holds that at
least two (and perhaps more) Article I “war powers” do, in
fact, include “the power to subject nonconsenting States to
private suits for damages in state courts,” Alden, 527 U. S.,
at 712, and that Congress has exercised that power by en-
acting the Uniformed Services Employment and Reemploy-
ment 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 rati-
fied the Constitution, they did not implicitly consent to pri-
vate 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 respect-
fully dissent.
I
After declaring independence, the former Colonies “con-
sidered 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 en-
tered 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 substan-
tial 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. Fran-
chise Tax Bd., 587 U. S., at ___ (slip op., at 6) (quoting Fed-
eral Maritime Comm’n, 535 U. S., at 751–752). That “doc-
trine . . . 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 sys-
tem considered immunity from private suits central to sov-
ereign dignity,” 527 U. S., at 715; see also, e.g., Federal
Maritime Comm’n, 535 U. S., at 760. In fact, sovereign im-
munity 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 ex-
pressly 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 ex-
plained in The Federalist, sovereign immunity was part of
“the general sense and the general practice of mankind,”
and the Constitution therefore left it “with the States” un-
less they had “surrender[ed]” some portion “of this immun-
ity 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 main-
tained that “the Framers thought it an impermissible af-
front to a State’s dignity to be required to answer the com-
plaints of private parties in federal courts,” Federal
Maritime Comm’n, 535 U. S., at 760, and that “the Conven-
tion did not disturb States’ immunity from private suits,”
id., at 752.
Nevertheless, in the last two decades, the Court has rec-
ognized two surrenders of sovereign immunity in cases im-
plicating 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 immun-
ity 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 Penn-
East centered on whether or not the plan of the Conven-
tion—i.e., the Constitution itself—required States to sur-
render 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 congres-
sional “abrogation” of state sovereign immunity. Abroga-
tion 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 en-
act “unequivocal statutory language” abrogating States’ im-
munity. 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 “congres-
sional 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 Re-
gents, 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 Bank-
ruptcies’ ”). 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 ei-
ther 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-the-
Convention waiver. Thus, the question presented is
whether, in ratifying the Constitution, the States surren-
dered their immunity in their own courts against private
damages actions authorized by Congress’ war powers.
 Cite as: 597 U. S. ____ (2022) 5

THOMAS, J., dissenting

II
In answering that question, the Court discounts two im-
portant points. First, it creates a constitutional problem by
adopting a questionable interpretation of USERRA that as-
sumes Congress intended to legislate with indifference to
States’ state-law immunity. Second, the Court cannot es-
cape the fact that Alden already answered the question pre-
sented and held that the States did not surrender their
state-court immunity when ratifying Article I of the Consti-
tution.
A
When it was originally enacted, USERRA authorized cov-
ered employees to sue States in federal district court. See
38 U. S. C. §4323(b) (1994 ed.). In 1996, this Court decided
Seminole Tribe, holding that Congress could not abrogate
state sovereign immunity in federal courts using its Article
I powers. See 517 U. S., at 72–73. In response to Seminole
Tribe, Congress amended USERRA in 1998, and the statute
now provides: “In the case of an action against a State (as
an employer) by a person, the action may be brought in a
State court of competent jurisdiction in accordance with the
laws of the State.” §4323(b)(2) (emphasis added).
USERRA’s requirement that employee damages actions
be “in accordance with the laws of the State” would seem to
include a State’s “laws” that render it immune from suit in
the State’s own courts, as well as any “laws” that expressly
waive such immunity. See, e.g., Tex. Govt. Code Ann.
§311.034 (West 2013); Prairie View A & M Univ. v. Chatha,
381 S. W. 3d 500, 512 (Tex. 2012). In other words, there is
nothing in the text of USERRA necessarily implying that
Congress intended to require nonconsenting States to de-
fend themselves in their own courts.1 The Court, however,
——————
1 To be sure, if USERRA authorizes suits in state courts only “in ac-

cordance 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 stat-
ute “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 “abro-
gate” the States’ sovereign immunity in their own courts;
plan-of-the-Convention waiver asks whether the States
surrendered that immunity when the Constitution was rat-
ified 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 immun-
ity, 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 uni-
formity; 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 Commit-
tee 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”).
2 The 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 sover-
eign immunity in state courts.
 Cite as: 597 U. S. ____ (2022) 7

THOMAS, J., dissenting

creditors insofar as concerns ‘Laws on the subject of Bank-
ruptcies’ or exempt them from the operation of such laws”).
The Court should not casually consider the constitution-
ality of USERRA’s supposed subjection of nonconsenting
States to damages actions in state court when it is not clear
the statute does any such thing. By doing so, the Court
gives short shrift to the “well-established principle govern-
ing the prudent exercise of this Court’s jurisdiction that
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 cre-
ated by the Fair Labor Standards Act (FLSA). See 527
U. S., at 711–712. The question presented was “whether
Congress has the power, under Article I, to subject noncon-
senting States to private suits in their own courts.” Id., at
730. In a detailed opinion, the Court in Alden held—with-
out qualification—that the States had not consented in the
plan of the Convention to any congressionally created pri-
vate damages actions in state court.
To begin, Alden framed its inquiry around plan-of-the-
Convention waiver, not congressional abrogation: “In exer-
cising its Article I powers Congress may subject the States
to private suits in their own courts only if there is compel-
ling 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 (empha-
sis 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 ar-
eas of national concern”—including, of course, the war pow-
ers. 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 understand-
ing that they had surrendered to Congress any power to au-
thorize private damages actions against them in their own
courts. See id., at 731–733.
Alden spoke emphatically and categorically when ex-
plaining 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 sover-
eign’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 con-
cern that “Article III might be used to circumvent state-
court 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 nonconsent-
ing 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 dam-
ages 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 vari-
ous 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 immun-
ity 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” them-
selves, 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 em-
braces the one that the Court answers today. And there is
no serious dispute that Alden’s explicit holding is irrecon-
cilable with the Court’s holding here.
* * *
Until today, Alden meant what it said. Both Katz and
PennEast considered plan-of-the-Convention waivers appli-
cable to federal, not state, court. See Katz, 546 U. S., at 360;
PennEast, 594 U. S., at ___ (slip op., at 4). Nothing in those

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

elsewhere in Alden. For instance, the Court emphasizes that Alden ex-
pressly recognized “ ‘the postulate that States . . . shall be immune from
suits, without their consent, save where there has been “a surrender of
this immunity in the plan of the convention.” ’ ” Ante, at 14 (quoting Alden,
527 U. S., at 730). That is true enough, but beside the point. After stat-
ing 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 hold-
ing.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 Ap-
peals.
III
Even if Alden’s holding were not alone dispositive, thus
requiring us to consider our “plan of the Convention” prec-
edents applicable to private actions in federal court, I would
still conclude that the States have not waived their immun-
ity to private damages actions authorized by the war pow-
ers.
——————
4 The Court asserts that “those opinions’ reasoning . . . is not so lim-

ited” to render them inapplicable to state courts. Ante, at 15. But the
reasoning in Katz is necessarily limited to federal courts, given that fed-
eral 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 cate-
gorical rule. The Framers did not even think to address state sovereign
immunity in state courts because “the sovereign’s right to assert immun-
ity 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 discus-
sion, something inconceivable to the founding generation. See 527 U. S.,
at 743.
Similarly unconvincing is the Court’s assumption that “waiver pursu-
ant 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 im-
munity unless there is “compelling evidence that the
Founders thought such a surrender inherent in the consti-
tutional 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 Con-
stitution,” 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 im-
plicitly agree to surrender their state-court immunity
against congressional exercises of the war powers.
A
Torres claims (and the Court agrees) that the original un-
derstanding of the Constitution’s text implies that the
States agreed to surrender their immunity against private
actions authorized by Congress’ “war powers,” which in-
clude 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 argu-
ment, 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-re-
lated 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 Con-
gress to subject nonconsenting States to private damages
actions. Seminole Tribe involved a federal cause of action
created pursuant to Congress’ authority under the Indian
Commerce Clause, see 517 U. S., at 60, which this Court
has said grants Congress “ ‘plenary and exclusive’ ” “powers
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 sover-
eign immunity . . . is not so ephemeral as to dissipate when
the subject of the suit is an area . . . that is under the exclu-
sive 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 ex-
ercise of a particular power is reinforced by an explicit di-
vestment of state authority under Article I, §10. Our prec-
edents teach that whenever a power is “exercised
exclusively by Congress, the subject is as completely taken
from the State Legislatures, as if they had been expressly
forbidden to act on it.” Sturges v. Crowninshield, 4 Wheat.
122, 193 (1819) (Marshall, C. J., for the Court) (emphasis
added). Whether or not a prohibition on state power also
appears in Article I, §10, is irrelevant when deciding
whether the Constitution has granted Congress power to
subject 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, “pro-
vide strong evidence” supporting “a complete delegation of
authority to the Federal Government to provide for the com-
mon defense.” Ante, at 7. States obviously have no author-
ity 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 over-
lap with Congress’ power over the military. For example,
we have sustained state legislation related to the enlist-
ment 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 es-
chewed 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, un-
aided by Congressional enactment, to prohibit” States from
exercising their police powers in ways that arguably burden
Congress’ “power to raise and support armies.” Penn Dair-
ies, 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 ter-
ritory of a dual system of government,” and they may per-
sist “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 con-
gressional power to pre-empt state law alone demonstrates
a State’s surrender of sovereign immunity. That line of rea-
soning, apart from being foreclosed by Seminole Tribe,
proves too much. The upshot is that the States would have
consented in the plan of the Convention to surrender their
immunity against the exercise of any Article I power. Be-
cause such a result is a dramatic departure from our prece-
dents, and the power granted to Congress under the Army
and Navy Clauses does not displace state regulation any
more readily or completely than other Article I powers,
these arguments from constitutional text provide no sound
basis for authorizing private actions against nonconsenting
States.
B
Constitutional history and practice do Torres and the
Court no better. To begin, we must view the historical evi-
dence in light of the “presumption that no anomalous and
unheard-of proceedings or suits were intended to be raised
up by the Constitution.” Hans, 134 U. S., at 18; see also
Alden, 527 U. S., at 727. Applying that presumption, the
Court in the past has “attribute[d] great 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 ab-
sence 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 inextri-
cably 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 af-
front to a State’s dignity” to require it “to defend itself in an
adversarial proceeding against a private party.” Id., at
760–761.
To overcome that presumption, Torres and the Court in-
voke some historical sources that generally discuss the
scope and importance of Congress’ war-related powers. See
Brief for Petitioner 26–37; ante, at 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 Peti-
tioner 27–31. But it is not likely that the Founders did, in
fact, expect foreign creditor suits against States; “it is more
likely that they expected creditors to sue their individual

——————
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 par-
ties. 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 de-
fenses.” B. Clark, The Eleventh Amendment and the Na-
ture of the Union, 123 Harv. L. Rev. 1817, 1910 (2010). And
when the Eleventh Amendment was adopted “to restore the
original constitutional design” after Chisholm v. Georgia, 2
Dall. 419 (1793), Alden, 527 U. S., at 722, Congress refused
“to make an exception for cases arising under treaties made
under the authority of the United States,” id., at 721 (inter-
nal quotation marks omitted). “Congress’ refusal to modify
the text of the Eleventh Amendment to create an exception
to sovereign immunity for cases arising under treaties” sug-
gests that the States’ immunity from private-party litiga-
tion extended even to treaty-based claims. Id., at 735; see
also D. Currie, The Constitution in Congress: The Federal-
ist 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 in-
stance 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 in-
ferring a surrender of state sovereign immunity in this con-
text. 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 pur-
ports “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—“es-
sential to our liberty and republican form of government”—
breaks down when “the Federal Government asserts au-
thority over a State’s most fundamental political pro-
cesses.” Ibid.7
Notwithstanding these countervailing structural con-
cerns, 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 Govern-
ment’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
——————
7 These unique structural dangers posed by granting the Federal Gov-

ernment authority to turn the State against itself again show why the
Court errs in concluding that precedents concerning plan-of-the-Conven-
tion waivers applicable to suits in federal court necessarily support waiv-
ers 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 con-
flates 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 “es-
tablished military bonuses to reward service, even requir-
ing Virginia to give land to some Revolutionary War offic-
ers.” 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).

——————
8 The 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 re-
served 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 sol-
diers, 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 fed-
eral 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 cor-
rect 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 surren-
der 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 Bank-
ruptcy 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, clause-
by-clause reexamination of Article I” that the Court en-
dorses 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 ex-
ercised 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 con-
demnation actions for just compensation. See id., at ___
(slip op., at 17). The Court did not think that kind of ar-
rangement “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-of-
the-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 im-
munity against any exercises of that power. After framing
the inquiry this way, the Court concludes that because Con-
gress’ “power to build and maintain the Armed Forces” is
“ ‘complete in itself,’ ” States necessarily relinquished their
sovereign immunity against private damages actions au-
thorized 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 Penn-
East, which suggested only that because the federal emi-

——————
9 Although 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, alt-
hough 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, interre-
lated provisions” delegating the relevant power to the Federal Govern-
ment, 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 Constitu-
tion,” 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 na-
ture, “inextricably intertwined” with judicial condemnation
proceedings, States surrendered any sovereign immunity
that would otherwise render the eminent domain power in-
complete. 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 threat-
ens to rework or erase the Court’s prevailing sovereign im-
munity jurisprudence.
A
The sentence in PennEast upon which the Court fabri-
cates its test for plan-of-the-Convention waiver reads as fol-
lows: “[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 decades-
old State sovereign immunity jurisprudence to merely ask-
ing whether a federal power is “complete in itself.” That
cannot be correct.
The Court in PennEast borrowed the “complete in itself ”
idea from Kohl, which had approved the Federal Govern-
ment’s condemnation of private land to build a post office in
Cincinnati, Ohio. 91 U. S., at 373–374. Although the Fed-
eral Government had relied on Ohio’s eminent domain
power, rather than its own, Kohl made clear that the Fed-
eral Government’s authority to condemn land did not de-
pend 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 prece-
dents. PennEast itself invoked the concept for one purpose:
to reject the contention that one could “[s]eparat[e] the em-
inent 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 im-
munity. 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 pri-
vate delegatees would be tantamount to depriving the Gov-
ernment of part of the eminent domain power itself, con-
trary 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 ” rep-
resented 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 con-
text of eminent domain. And because PennEast did not in-
voke Kohl to break new doctrinal ground, the Court made
no attempt to reconcile the “complete in itself ” inquiry with
this Court’s longstanding sovereign immunity precedents
(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 dis-
cussed 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 sur-
rendered their sovereign immunity with respect to any fed-
eral power that is “inextricably intertwined” with judicial
proceedings, like eminent domain; otherwise, sovereign im-
munity would excuse the States from the judicial proceed-
ing and the federal power would be incomplete. PennEast,
594 U. S., at ___–___ (slip op., at 16–17) (linking complete-
ness of eminent domain power to condemnation proceed-
ings). Yet, now, the Court abandons the only limiting prin-
ciple 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 fed-
eral 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 Conven-
tion.’ ” 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 de-
scribed. Absent that limit, the Court’s indefinite test will
provide future courts cover to further erode the States’ sov-
ereign immunity.

——————
10 My “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 di-
vorced 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 con-
cept of a federal power being “complete in itself ” long pre-
dates Kohl and means something quite different from what
the Court says it does. In fact, the phrase’s provenance in
our jurisprudence dates back to no less seminal a decision
than Chief Justice Marshall’s opinion in Gibbons v. Ogden,
9 Wheat. 1 (1824). There, the Court stated that Congress’
power “[t]o regulate Commerce with foreign Nations, and
among the several States,” U. S. Const., Art. I, §8, cl. 3, “like
all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limita-
tions, other than are prescribed in the constitution,” 9
Wheat., at 196 (emphasis added).
Gibbons’ discussion is revealing. First, unlike the Court’s
decision today, which attempts to cabin congressional pow-
ers 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 (em-
phasis added). Second, unlike the Court today, Gibbons de-
fines 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 regu-
late interstate and foreign commerce.11 And, over time, the
Court confirmed that because Congress’ power over inter-
state commerce “is plenary and complete in itself . . . [i]t fol-
lows 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 is-
sue in Seminole Tribe) involves goods that, before they
——————
11 See, e.g., Brown v. Maryland, 12 Wheat. 419, 446 (1827) (Marshall,

C. J., for the Court) (a power “complete in itself ” is “coextensive with the
subject on which it acts”); Kidd v. Pearson, 128 U. S. 1, 17 (1888);
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’ au-
thority 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 reg-
ulation 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 characteriza-
tion of Congress’ commerce power as plenary. See, e.g., Ar-
mour & 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 distin-
guish 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.” De-
spite 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
——————
12 The Court also makes what appears to be an alternative argument.

Invoking Hamilton’s discussion of state sovereignty in The Federalist,
the Court says that States surrendered their sovereign immunity where
the Constitution “ ‘granted an authority to the Union, to which a similar
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 repug-
nant’ 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 congres-
sional 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 sov-
ereign 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 dimin-
ished to the extent of the grants of power to the federal gov-
ernment in the Constitution,” and that granting Congress
“plenary power to regulate commerce” amounts to a surren-
der 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 author-
ity, the plurality thought Congress’ commerce power “would
be incomplete without the authority to render States liable
in damages.” Id., at 19 (emphasis added). To complete that
congressional power, the plurality reasoned that “to the ex-
tent that the States gave Congress the authority to regulate
commerce, they also relinquished their immunity where
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 interpreta-
tion 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 Sem-
inole 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 repu-
diate[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” stand-
ard 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 one-
year-old, highly circumscribed precedent. It then uses that
phrase to fashion a test for plan-of-the-Convention waiver
that mimics earlier attempts by this Court to deny States
the dignity owed to them in our system of dual federalism.
Our sovereign States deserved better. I respectfully dis-
sent.