PROF. ROBERT LEIDER: Sovereign Immunity and Military Federalism.

At oral argument, some Justices and Torres’s attorney, Andrew Tutt, contended that a “plan of the Convention” theory applies because of the exclusivity of federal war powers. During questioning, Justice Kavanaugh emphasized that the Constitution gave the war powers entirely to the federal government. For example, he asked Mr. Tutt, “[H]ow important is the text of Article I, Section 10, which explicitly divests the states of anything on the war powers?” Justice Barrett asked Texas’s Solicitor General Judd Stone, “if the states gave up all of this [i.e., their war powers] . . . does it make sense to think, oh, but they retained sovereign immunity?” She called sovereign immunity “small potatoes when you think about everything else they relinquished in this area.” And on rebuttal, Mr. Tutt argued that “[t]he purpose of sovereign immunity is to protect liberty and the local autonomy of the states . . . . But, in the area of war,” he continued, “it is only by vesting the war powers exclusively in the federal government that liberty can [be] protected in the way that the Constitution intends.”

This theory for abrogating sovereign immunity might have some plausibility if the Framers had actually vested all the war powers in the federal government. But they did not. Quite the contrary, the Framers feared giving any level of government an unchecked monopoly of force, so they divided the war powers between the federal government and the states.

Article I Section 10 does not divest the states of “anything on the war powers.” In fact, it explicitly reserves to them the power to make war when actually invaded, or in such imminent danger as will admit of no delay. Perhaps Justice Kavanaugh should reread that text.

I should also note that the militia system meant that states actually had a lot of control over the bulk of the military force available to the federal government. That was the reason why the militia system was largely replaced by the National Guard, after the federal government found itself unable to send militia units to invade Mexico in 1912.

More on that here.