The Supreme Court sounded ready Tuesday to back the power of Congress to recruit and retain armed forces, in an oral argument that touched on the current conflict in Ukraine as an example of the unpredictable need to defend the nation.
The case centers on a federal law, the Uniformed Services Employment and Reemployment Rights Act, or USERRA, that gives employment protections for military service members who return from duty. The law includes the right to be promptly reemployed upon return from service and to be free from discrimination based on military service.
State courts in Texas, Virginia, Florida, Tennessee, Georgia, Delaware and Alabama have ruled Congress doesn’t have the power to give service members the right to file civil lawsuits to enforce those protections against a state, unless that state has given its permission to be sued.
While questions from the justices explored the history of the Constitution and whether states consented to such lawsuits upon its adoption, some justices kept front and center the lessons from the Vietnam War and the potential for another international conflict.
Justice Brett M. Kavanaugh used his questions to defend Congress’s broad and sweeping powers to raise and support military forces, known as the War Powers, and brought up the importance of recruitment and retention. Members of Congress filed a brief in the case with those concerns.
Assistant Solicitor General Christopher G. Michel, defending the law, told Kavanaugh that the...
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