War Powers Clause does not authorize abrogation of state sovereign immunity, holds NM Court of Appeals

It’s not often that our state courts have an opportunity to address the War Powers Clause of the Constitution (otherwise known as Article I, Section 8, Clause 11), but the Court of Appeals has held, in Ramirez v. State of N.M. ex rel. Children, Youth and Families Department (March 3, 2014), that while this clause makes Congress supreme in matters of war and peace, it gives Congress no power to authorize a lawsuit against the State of New Mexico.

The plaintiff was employed by New Mexico’s Children, Youth and Families Department (CYFD), but filed a lawsuit alleging that the agency had discriminated against him because of his military service in the national guard, in violation of the Uniformed Services Employment and Reemployment Rights Act (– USERRA).

CYFD asserted a state sovereign immunity defense, and argued that Congress cannot use its Article I powers to abrogate that immunity. Congress enacted — USERRA using the authority granted to it by the War Powers Clause, which is located in Article I of the Constitution.

It is true that the Supreme Court made broad statements, in cases like Seminole Tribe of Florida v. Florida (1996) and Alden v. Maine (1999), to the effect that Congress could not use its Article I powers to abrogate state sovereign immunity, but just a few years later, the Court said that Congress could abrogate state sovereign immunity under the Bankruptcy Clause, an Article I power. See Central Virginia Community College v. Katz (2006).

So which authority is controlling? The majority opinion, written by Judge Fry, followed the decisions in Seminole Tribe and Alden, and held that the War Powers Clause does not give Congress power to abrogate state sovereign immunity. The Court explained that the Katz exception to this general rule was based on the “unique nature” of bankruptcy jurisdiction, which gives federal courts jurisdiction over property, and thus authorizes what is only a minimal intrusion on state sovereignty. Judge Bustamante dissented, arguing that the need for unity in the field of national defense provided a sound basis for abrogating state sovereign immunity.

In other words, CYFD may have violated — USERRA, but the plaintiff cannot sue CYFD for those violations. Judge Fry sympathized with the plaintiff, and disapproved of a state agency violating federal law, but noted that it’s up to the Legislature to change this situation (i.e. the Legislature could choose to waive the state’s sovereign immunity to such claims).

Do you think it’s unfair that a plaintiff who has suffered illegal discrimination should be deprived of a legal remedy? Or do you think it’s more important that Congress should be prevented from interfering with state sovereignty? Please feel free to leave a comment.

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