War Powers Abrogation

The United States' peacetime security is based entirely on its all-volunteer armed forces. These volunteers, split equally between full- and part-time servicemembers, risk not only their health and safety, but also their economic stability when they are called away from home for training or active duty. Servicemembers' duties also interfere with the demands of employers, creditors, and government agencies-which can result in job losses, financial difficulties, and other costs. As a result, the federal government has long used its constitutional war powers to enact legislation protecting servicemembers from many of these hardships. These statutes provide employment leave and antidiscrimination protection, tax relief, and special procedural rights that lessen the burden of military service to ensure that the United States has a sufficient number of well-trained soldiers. Despite these statutes' importance to national security, their applicability to state entities is in doubt. Using the Supreme Court's fluctuating state sovereign immunity jurisprudence, many state employers have invoked sovereign immunity to bar servicemembers' private claims for monetary relief. More often than not, courts have sided with the states and dismissed servicemembers' federal claims for want of jurisdiction. However, these decisions are based on erroneous interpretations of the Court's doctrine of sovereign immunity. Under current law, the federal government's ability to subject states to individual suits is analyzed from a historical perspective. The inquiry asks whether the states, in ratifying the Constitution, believed that they retained immunity in a given area. Based on misinterpretations of Court doctrine and a refusal to apply the required historical analysis, many courts have held that states are immune from claims filed under federal war powers legislation. This Article provides the first comprehensive historical analysis of the constitutional balance of war powers between the federal and state governments. This analysis unequivocally shows that the Constitution was intended to provide the federal government with virtually all war powers. Moreover, the Constitution requires that the very limited war powers left to the states must be entirely under the control of the federal government. As a result of this history, the federal government has constitutional authority to subject states to suit through “war powers abrogation.”

Duke Scholars

Author Jeffrey M Hirsch School of Law