Hencely v. Fluor Corp. — Military Contractor State Tort Claims Not Preempted

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The dissent does not appear to disagree. See post, at 17. Nor does it 2

defend the preemption rule applied below, even while it would find preemption on other grounds.

14 HENCELY v. FLUOR CORP.

that the orders exceeded the President's statutory author- ity and held that "Captain Little then must be answerable in damages to the owner of this neutral vessel" despite a seizure "with pure intention" to carry out U. S. military pol- icy. Id., at 179. In Mitchell v. Harmony, 13 How. 115 (1852), Colonel Mitchell seized property in Mexico during the Mexican-American war that belonged to an American merchant traveling with the military in the war zone. Id., at 129-130. The merchant sued, and the Court affirmed the tort judgment against Colonel Mitchell. Id., at 137. As this history shows, the mere fact that the conduct here oc- curred overseas in a warzone perhaps makes this a good case for Congress to intervene, but it does not give courts a license to bar all such suits on their own authority. 3 Nor is Fluor protected from the consequences of its con- duct simply because it was working for the Federal Govern- ment and state law is at issue. "[T]here is an implied con- stitutional immunity of the national government from state taxation and from state regulation of the performance, by federal officers and agencies, of governmental functions."

Penn Dairies, Inc. v. Milk Control Comm'n of Pa., 318 U. S. 261, 269 (1943). For example, States ordinarily cannot "di- rectly regulate or discriminate against" federal officers and agencies. United States v. Washington, 596 U. S. 832, 835 (2022); see also McCulloch v. Maryland, 4 Wheat. 316, 436- 437 (1819). "But those who contract to furnish supplies or render services to the government are not such agencies and do not perform governmental functions." Penn Dairies,

------------ The dissent observes that these decisions applied the "bygone" federal 3 general common law before the Court declared that "[t]here is no federal general common law" in Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938); they did not apply state law. Post, at 18. We fail to see the relevance of this distinction. The pre-Erie "federal general common law" would have been subject to structural constitutional law just as state law is today. So, if the Constitution foreclosed tort claims arising from wartime activ- ities under the rule that Fluor urges, these suits would have been barred regardless of the source of the tort principles they relied on.

15 Cite as: 608 U. S. ____ (2026)

318 U. S., at 269. Accordingly, absent a statute to the con- trary, States can regulate or tax federal contractors on the same terms as any private company, even where the party asserts an indirect burden on federal activities. See, e.g.,

James Stewart & Co. v. Sadrakula, 309 U. S. 94, 104 (1940) (allowing state labor-law liability against a contractor con- structing a federal building); James v. Dravo Contracting

Co., 302 U. S. 134, 159-161 (1937) (upholding a tax imposed

on a federal contractor despite a constitutional objection that doing so would burden the Federal Government by in- creasing its costs). The Court has not hesitated to apply this principle in the military context. In Penn Dairies, the Court allowed a state milk-price regulation to apply to a military contractor providing milk to soldiers on a military base during the Sec- ond World War. 318 U. S., at 266-267, 278-279. The con- tractor argued that applying the regulations to its military contracting operations was unconstitutional, because Con- gress alone has the power to raise and support armies, and the regulation interfered with the exercise of that power.

Id., at 268-269; see Art. I, §8, cl. 12. The Court rejected that argument. It explained that while Congress's enumer- ated powers enable it to "declare state regulations like" the one at issue "inapplicable to sales to the government," the state law was not preempted because the Court could not "find in Congressional legislation . . . any disclosure of a purpose to immunize government contractors from local price-fixing regulations which would otherwise be applica- ble." 318 U. S., at 269, 278. Instead, without a federal statute, contractors ordinarily have a constitutional defense only when the contractor is being sued precisely for accomplishing what the Federal Government requested. In Yearsley, a contractor, acting under military orders, built dikes on the Missouri River and "washed away a part of petitioners' land" as a result. 309

1. S., at 19. The landowners sued and secured a judgment 16 HENCELY v. FLUOR CORP.

against the contractor. Id., at 20. This Court reversed. The Court explained that "if th[e] authority to carry out the pro- ject was validly conferred . . . there is no liability on the part of the contractor for executing its will." Id., at 20-21. But, by its own terms, Yearsley was limited: "The Court con- trasted with Yearsley cases in which a Government agent had 'exceeded his authority' or the authority 'was not val- idly conferred'; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to an- other." Campbell-Ewald Co. v. Gomez, 577 U. S. 153, 167 (2016) (quoting Yearsley, 309 U. S., at 21). Because Fluor is alleged to have acted outside the authority the military granted it, it does not attempt to invoke a Yearsley defense. And, we decline to extend Yearsley to bar allegations such as Hencely's. III The Fourth Circuit's decision held Hencely's claims preempted even though the conduct complained of was nei- ther ordered nor authorized by the Federal Government. No provision of the Constitution and no federal statute jus- tifies that preemption of the State's ordinary authority over tort suits. Nor does any precedent of this Court command such a result. Therefore, we vacate the judgment of the Fourth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

1 Cite as: 608 U. S. ____ (2026) A

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No. 24-924

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WINSTON TYLER HENCELY, PETITIONER v. FLUOR CORPORATION, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [April 22, 2026]

JUSTICE ALITO, with whom THE CHIEF JUSTICE and JUSTICE KAVANAUGH join, dissenting. May a State regulate security arrangements on a military base in an active warzone? May state judges and juries pass judgment on questions that are inextricably tied to military decisions that balance war-related risks against long-term strategic objectives? In my judgment, the answer to these questions must be "no," and for that reason, this state-law tort case is preempted by the Constitution's grant of war powers exclusively to the Federal Government. The event that gave rise to this case was a tragic break- down in security at Bagram Airfield in Afghanistan in 2016, when the United States military was engaged in combat in that theater. Ahmad Nayeb, an Afghan national employed to work on the base, detonated a suicide bomb that killed 3

1. S. soldiers and 2 civilians and injured 17 others. In the years before this event, Taliban supporters repeat- edly attacked Bagram, but the military nevertheless de- cided for strategic reasons to adopt a policy known as "Af- ghan First," which required contractors working on the base to maximize the employment of Afghans. Under that policy, military officials vetted Nayeb, a former Taliban member, and cleared him to work on the base. Giving a person with Nayeb's background regular access to Bagram presented an obvious risk, but the decisionmakers

apparently concluded that long-term foreign policy and de- fense objectives justified that danger. As a result, a subcon- tractor for Fluor Corporation, a defense contractor engaged in work on the base, employed Nayeb. Fluor had responsi- bility for supervising Nayeb's conduct, and Fluor allegedly failed to provide adequate supervision. Among those injured when Nayeb detonated his bomb was petitioner, former Army Specialist Winston Tyler Hencely, who suffered severe and permanent injuries. Barred by sovereign immunity from suing the Federal Gov- ernment, petitioner brought this diversity suit against Fluor and asserted tort claims under South Carolina law. Like all members of the military wounded in the service of our country, petitioner deserves a full measure of support from the American people, who owe him a debt that can never be fully repaid. But this state-law tort suit is not the way to give petitioner what he is due. Under the Constitution, the power to make war and con- duct combat operations is entrusted exclusively to Congress and the President. See Art. I, §8, cls. 1, 11-16; Art. II, §1, cl. 1, §2, cl. 1. The Constitution expressly excludes the States from this field, Art. I, §10, cl. 3, and thus no state law, including state tort law, may intrude on the Federal Government's authority over combat-related operations. This suit violates that cardinal principle. Among other concerns, the trial proceedings that will result from today's decision are likely to implicate the Government's policy de- cisions about the operation of Bagram Airfield during the War on Terror. Fluor has stated that it will attempt to as- sign blame for the bombing to the military. In doing so, Fluor is likely to challenge the military's decision to give Nayeb access to the base in the first place, as well as the sufficiency of the military's periodic reassessments of his trustworthiness. And to support this defense, Fluor may demand discovery of sensitive Government documents and may depose and cross-examine military commanders about

3 Cite as: 608 U. S. ____ (2026) A

policy decisions that involved a delicate and contestable balancing of wartime interests. In the end, a jury may be asked to decide whether petitioner's injuries were caused by the negligence or bad judgment of military decisionmak- ers and the officers responsible for the operation of the base. And to make matters worse, there is a possibility that the case will be decided under the principles of Afghan law in effect in 2016, even though simply ascertaining those prin- ciples would be a daunting task. Because petitioner's state-law claims intrude on the Fed- eral Government's exclusive power to make war and con- duct combat operations, the Constitution preempts them. I A The Constitution makes federal law the "supreme Law of the Land," Art. VI, cl. 2, and over the years, this Court has identified a variety of circumstances in which federal law preempts state law. In this case, the opinion of the Court stresses the two situations in which preemption is most ev- ident: where a federal law expressly preempts state law and where it is impossible for a regulated party to comply with both federal and state law. See ante, at 1, 5. But these two categories do not constitute an exhaustive list. Our prece- dents squarely establish that the Constitution and other federal laws may also impliedly preempt state law. Kansas

1. Garcia, 589 U. S. 191, 202-203 (2020). And most perti- nent here, we have long recognized that federal law preempts state laws that intrude on the powers that the Constitution confers exclusively on the Federal Govern- ment, as well as laws that substantially interfere with the operation of the Federal Government's organs or the work of federal officers. Our decisions in this vein began at least as early as

McCulloch v. Maryland, 4 Wheat. 316 (1819), where the

Court held that Maryland could not tax the Second Bank of

4 HENCELY v. FLUOR CORP. A

the United States. Writing for the Court, Chief Justice Marshall noted that some powers, including control over federal instrumentalities like the Bank, belong exclusively to the Federal Government. Id., at 429. Thus, Maryland could not control the Bank, and because the power to tax could be used to control--and indeed destroy--the Bank, the State could not tax it. Id., at 431. Chief Justice Mar- shall stated the holding of the Court in unequivocal terms: "[T]he States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the oper- ations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general gov- ernment." Id., at 436. That principle doomed Maryland's tax even though no provision of federal law expressly preempted the state law and even though the Court did not suggest that the Bank was incapable of paying the tax. Ra- ther, the Court inferred the preemptive effect of federal law from the structure of the Constitution. See id., at 430-431. Five years later, the Court's decision in another land- mark case involving the Second Bank of the United States reaffirmed the principle of implied preemption recognized in McCulloch. Writing for the Court in Osborn v. Bank of

United States, 9 Wheat. 738 (1824), Chief Justice Marshall explained that some state incursions into federal operations are "so objectionable" that federal law need not say any- thing to preempt them. Id., at 865. For example, the "col- lectors of the revenue, the carriers of the mail, the mint es- tablishment, and all those institutions which are public . . . are protected, while in the line of duty; and yet this protec- tion is not expressed in any act of Congress." Ibid. Thus, Ohio, like Maryland in McCulloch, was barred from taxing the Bank simply because of the Constitution's delineation of federal and state authority. McCulloch and Osborn were early cases identifying fields that are "exclusively federal, because made so by constitu- tional or valid congressional command," or because they "so

5 Cite as: 608 U. S. ____ (2026) A

vitally affec[t] interests, powers and relations of the Federal Government as to require uniform national disposition."

United States v. Standard Oil Co. of Cal., 332 U. S. 301, 307

(1947). In such areas, this Court does not apply a presump- tion against preemption. That presumption is grounded in respect for state sovereignty, so it applies to fields the " 'States have traditionally occupied.' " Wyeth v. Levine, 555

1. S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518

2. S. 470, 485 (1996)). But when state law intrudes in an
   exclusively federal domain, the rationale for the presump- tion does not apply. In those fields, the "conflict with fed- eral policy need not be as sharp as that which must exist for ordinary pre-emption when Congress legislates 'in a field which the States have traditionally occupied.' " Boyle

3. United Technologies Corp., 487 U. S. 500, 507 (1988)
   (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)). In other words, the "fact that the area in question is one of unique federal concern changes what would other- wise be a conflict that cannot produce pre-emption into one that can." Boyle, 487 U. S., at 508 (emphasis deleted). Osborn, as noted, enumerated several exclusive federal domains into which States may not intrude, and later cases reaffirmed and further developed that list. For example, the Court held that States cannot prosecute federal agents for their official acts. In re Neagle, 135 U. S. 1, 75-76 (1890); see Tennessee v. Davis, 100 U. S. 257, 262-263 (1880) (quoting Martin v. Hunter's Lessee, 1 Wheat. 304, 363 (1816) (Johnson, J., concurring in judgment)). They cannot impose qualifications for membership in Congress that go beyond those set out in the Constitution. U. S. Term

Limits, Inc. v. Thornton, 514 U. S. 779, 806 (1995). Nor can

States enact qualifications for federal employees that sur- pass the minimum qualifications imposed by federal law.

Johnson v. Maryland, 254 U. S. 51, 57 (1920). States are

also barred from singling out the Federal Government for unfavorable treatment in contracting. United States v.

6 HENCELY v. FLUOR CORP.

Washington, 596 U. S. 832, 839 (2022). They cannot impose

tort liability on federal contractors for the performance of their contractual duties. Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, 20-21 (1940). And they cannot dictate the pri- ority of federal liens that arise under a nationwide program.

United States v. Kimbell Foods, Inc., 440 U. S. 715, 726 (1979). In these situations, the Court found that constitutional structure dictated preemption, but today's majority largely disregards this body of precedent. The majority is certainly correct that " '[t]here is no federal pre-emption in vacuo,'"

ante, at 5, and preemption cannot be based on " 'some brood- ing federal interest' " or a " 'freewheeling judicial inquiry into whether a state statute is in tension with federal objec-

tives.' " Garcia, 589 U. S., at 202. We have been presented

with and have rebuffed preemption arguments that rested

on such airy grounds. See, e.g., Arizona v. United States, 567 U. S. 387, 411-415 (2012): id., at 424-426 (Scalia, J., concurring in part and dissenting in part); id., at 437-438 (THOMAS, J., concurring in part and dissenting in part); id., at 441 (A LITO, J., concurring in part and dissenting in part). But any argument that constitutional structure 1

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In that case, a state law required law enforcement officers to contact1

federal authorities regarding the immigration status of a detainee if they reasonably suspected that he or she was in this country unlawfully. Ar-

izona, 567 U. S., at 411. Even if this detention did not exceed the length of time permitted by the Fourth Amendment, the Federal Government argued that this state-law requirement was preempted because its breadth conflicted with the Government's enforcement policy, which gave priority to the removal of those illegal aliens who had criminal rec- ords or presented a special danger to the community. See Brief for United States in Arizona v. United States, O. T. 2011, No. 11-182, pp. 43-52. Although divided on other issues, the Court unanimously re- jected that argument. Just because the state law might have led to phone calls or emails that federal immigration officers did not wish to receive provided no sound basis for preemption. See, e.g., Arizona, 567

1. S., at 412-413; id., at 442-446 (A ALITO, J., concurring in part and dis- senting in part).

7 Cite as: 608 U. S. ____ (2026) A

cannot itself preempt state law comes more than two cen- turies too late. B Preemption based on constitutional structure is espe- cially important when state law intrudes upon the Federal Government's exclusive authority to conduct relations with other nations or to wage war. As the Court has repeatedly explained, the "Federal Government . . . is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties." Hines v. Davidowitz, 312 U. S. 52, 63 (1941). Indeed, "[o]ur system of government . . . im- peratively requires that federal power in the field affecting foreign relations be left entirely free from local interfer- ence." Ibid.; see also United States v. Belmont, 301 U. S. 324, 330-331 (1937) ("Governmental power over external affairs is not distributed, but is vested exclusively in the national government . . . and cannot be subject to any cur- tailment or interference on the part of the several states");

Zschernig v. Miller, 389 U. S. 429, 432 (1968) (the Consti-

tution permits no "intrusion by the State into the field of foreign affairs which the Constitution entrusts to the Pres- ident and the Congress"); Saleh v. Titan Corp., 580 F. 3d 1, 11 (CADC 2009) (Silberman, J.) ("The states (and certainly foreign entities) constitutionally and traditionally have no involvement in federal wartime policy-making"). We have applied this principle in numerous preemption cases. In Crosby v. National Foreign Trade Council, 530

1. S. 363 (2000), we held that a federal statute imposing sanctions on Burma preempted a state law banning the purchase of goods produced by companies that did business with that nation. Id., at 373-374. We reached that conclu- sion even though it would have been possible to comply with both the federal and state laws. Id., at 379-380. Similarly, in American Ins. Assn. v. Garamendi, 539 U. S. 396 (2003), we held that a federal executive agreement preempted a

8 HENCELY v. FLUOR CORP.

state statute that attempted to facilitate reparations for Holocaust survivors. Id., at 419, and n. 11, 427. As with foreign affairs more broadly, the Constitution as- signs the power to make war exclusively to the Federal Gov- ernment. Congress is given the power to declare war, raise armies, provide a Navy, and make rules governing the Armed Forces. Art. I, §8, cls. 1, 11-16. And the President is made the Commander in Chief of the Armed Forces. Art. II, §2, cl. 1. The Constitution then explicitly strips States of any similar powers. States may not "keep Troops, or Ships of War in time of Peace," or "engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Art. I, §10, cl. 3. The "Constitution's text, across several Articles, strongly suggests a complete dele- gation of authority to the Federal Government to provide for the common defense." Torres v. Texas Dept. of Public

Safety, 597 U. S. 580, 590 (2022). The framing generation well understood this point. "The States ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy." Id., at 592.

• * * In sum, we have long recognized that the Constitution it- self may demand preemption when a state law intrudes upon an area of exclusive federal authority. And because the Constitution gives the Federal Government exclusive authority over foreign affairs and the conduct of wars, fed- eral law preempts all state law that substantially interferes with the Government's exercise of those powers. II Applying state (or foreign) tort law in this case would sub- stantially interfere with the Government's ability to wage war and, in particular, with its ability to implement its pre- ferred security policies at Bagram Airfield, which for many years had been regularly attacked by Taliban supporters.

9 Cite as: 608 U. S. ____ (2026) ALITO, J., dissenting

In February 2007, a suicide bombing on the base killed 23 and injured 20 more. A June 2009 rocket attack killed two soldiers and injured at least six others. In May 2010, insur- gents wearing U. S. Army uniforms killed an American con- tractor and wounded nine servicemembers. A November 2013 rocket attack killed two civilian contractors, and a De- cember 2015 suicide bombing killed six American service- members. 2 In light of this history, military planners had strong rea- sons to worry about base security, but they also had in mind the United States' strategic objectives. 554 F. Supp. 3d 770, 776, n. 7 (SC 2021). President George W. Bush laid out those aims as follows: "Our goal in Afghanistan is to help the people of that country to defeat the terrorists and estab- lish a stable, moderate, and democratic state that respects the right of its citizens, governs its territory effectively, and is a reliable ally in this war against extremists and terror- ists." Later, as President Obama looked forward to the day 3 when American troops could come home, he added that the United States supported "open[ing] the door to those Tali- ban who abandon violence and respect the human rights of their fellow citizens." 4 Balancing these strategic objectives and Bagram's secu- rity needs, military decisionmakers adopted a policy that

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1. Wellman, A Timeline of Important Moments at Bagram Airfield 2 from 2001-2021, Stars & Stripes (July 2, 2021), https://www.stripes .com/theaters/middle_east/2021-07-02/bagram-airfield-timeline-of-events -since-2001-2026849.html (archived at https://perma.cc/J3Y7-MFNQ). President Bush Discusses Progress in Afghanistan, Global War on 3 Terror (Feb. 15, 2007), https://georgewbush-whitehouse.archives.gov/ news/releases/2007/02/20070215-1.html (archived at https://perma.cc/ A6SK-VVBD).

Remarks By the President in Address to the Nation on the Way Forward4

in Afghanistan and Pakistan (Dec. 1, 2009), https://obamawhitehouse .archives.gov/the-press-office/remarks-president-address-nation-way- forward-afghanistan-and-pakistan (archived at https://perma.cc/Z3YB- M88H).

10 HENCELY v. FLUOR CORP. A

entailed what they must have thought were tolerable and manageable risks. The policy manifested trust in the Af- ghan people, sought to promote economic development, and attempted to further the process of bringing former Taliban members back into the fold. This was the military's "Afghan First" policy, which gave heavy preference to the hiring of Afghans. In a March 2006 memorandum, the Commanding General of the Combined Forces Coalition in Afghanistan directed all military com- manders to "make every attempt, within legal and regula- tory limits, to use available Afghan services." Motion for Summary Judgment in No. 6:19-cv-00489 (D SC, Feb. 26, 2021), ECF Doc. 128-18, Exh. 16, p. 2. The memo added that "[w]henever possible, we should plan on providing Af- ghans with training which will add marketable skills to the population." Ibid. The memo recognized that this directive would risk some adverse consequences, but it justified the program on the ground that it would "provide opportunities for economic expansion, increased entrepreneurship, and skills training for the people of Afghanistan." Ibid. "As long as we can legally hire Afghans to provide services or prod- ucts," the memo proclaimed, "we shall do so." Ibid. The memo therefore directed military officials to award contracts to Afghans, rather than American contractors, whenever possible. And when officials awarded contracts to American companies like Fluor, the memo stated that "[o]rders are to be scoped to maximize employment of Af- ghans." Ibid. Commanders were instructed to set goals and write reports regarding the percentage of Afghans em- ployed under the contracts they administered, and the memo challenged commanders to "be creative and aggres- sive in carrying out the Afghan FIRST program." Id., at 3. The memo ended with the proclamation that "[t]his is a powerful way to contribute meaningfully to our campaign end state." Ibid.

11 Cite as: 608 U. S. ____ (2026) A

The Afghan First program was incorporated into Fluor's contract. Specifically, §1.07(b) of the relevant task order required Fluor to "hire [host nation] personnel and Subcon- tractors to the maximum extent possible." ECF Doc. 128- 19, Exh. 17, p. 6. According to Fluor's security director, "[p]ractically, this meant that the Military required Fluor to use [local nationals]. In fact, if Fluor employed persons other than Afghan nationals, the Military usually required Fluor to justify its decision." ECF Doc. 128-7, Exh. 5, p. 17. It was under this program that Nayeb was cleared for em- ployment on Bagram and then hired by one of Fluor's sub- contractors. Because of Nayeb's past Taliban membership, clearing him entailed an obvious risk. But the military con- cluded that the United States' strategic objectives justified that danger. The military relied on Fluor to supervise Nayeb's conduct on the base, and this arrangement led to the bombing that seriously injured petitioner. Based on what is known about the events leading to the bombing, it may well be that both the military and Fluor are responsible for petitioner's injuries. Under South Car- olina law, they could be jointly and severally liable, but be- cause the military is shielded by sovereign immunity, Fluor is potentially liable for all the compensatory damages that petitioner may be awarded. See Green v. McGee, 446 S. C. 343, 350, 919 S. E. 2d 903, 906 (2025); 120 F. 4th 412, 424 (CA4 2024). Any negligence on the part of the military would not diminish Fluor's liability for compensatory dam- ages. At this point, however, we do not know whether South Carolina law will be applied on remand. (I will discuss that question below.) But even if the rule of joint and several liability applies, Fluor will be free to try to show that the military was solely responsible for petitioner's injuries, and Fluor has stated that it will pursue that strategy. See id., at 424-425 (Fluor plans to try the military as the "empty chair"). Even if this attempt to shift all blame to the

12 HENCELY v. FLUOR CORP. A

Federal Government does not work, Fluor could also use ev- idence of the military's responsibility as a defense against petitioner's claim for punitive damages. See App. to Pet. for Cert. 150a. For these reasons, adjudication of Fluor's de- fense is very likely to entail an evaluation of the way the Federal Government assessed the risks and benefits of Nayeb's employment, and this would impermissibly intrude on the Federal Government's exclusive war powers. This suit threatens many other harms to federal interests as well. The parties may seek discovery of sensitive docu- ments about security threats at Bagram and about the trade-offs reflected in setting security policy. The United States will have to decide whether public disclosure of such documents is consistent with the Nation's defense and for- eign policy interests, and its only way to resist their disclo- sure may be the invocation of the state-secrets privilege. For good reason, the Government does not lightly assert that privilege; it is "the option of last resort." General Dy-

namics Corp. v. United States, 563 U. S. 478, 492 (2011). But in this case, the Government has not yet ruled it out. Brief for United States as Amicus Curiae 21, n. 1. Depositions and trial testimony by military officers re- sponsible for setting and implementing base security policy and protocols may pose similar problems and may also in- terfere with these officers' current responsibilities regard- ing urgent national security challenges. Members of the military who investigated the bombing may likewise be de- posed, subpoenaed to testify, and cross-examined about their conclusions regarding Fluor's conduct, and this could take a toll. All these harms will be compounded if active-duty ser- vicemembers can bring state tort suits like petitioner's. Having active-duty servicemembers depose their command- ers and question military judgments could interfere with military discipline and the proper chain of command.

13 Cite as: 608 U. S. ____ (2026) A

The shadow of state tort liability may also undermine the Government's use of contractors to perform tasks that are closely related to actual combat operations. See 120 F. 4th, at 427 (petitioner has acknowledged that Fluor "was inte- grated into combatant activities" on the base (internal quo- tation marks omitted)); accord, 554 F. Supp. 3d, at 774. For a variety of reasons, federal policy has increased the use of contractors to provide security in dangerous locales. And in doing so, contractors take directions from the military. But "[f]aced with the specter of tort liability, . . . a contractor would have to balance battlefield needs as dictated by mili- tary command against what a judge or jury might say years after the fact." Brief for Retired Senior Military Officers as

Amici Curiae 22. Putting contractors in this conflicted po-

sition could lead to adversarial relationships with military commanders. Applying state tort law to events that occur on a military base in an active warzone may also lead to vexing choice-of- law problems--and those problems are certainly present here. This is a diversity case filed in federal court in South Carolina, so that State's choice-of-law rules govern. See

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496

(1941). Under those rules, "the substantive law governing a tort action is determined by the lex loci delicti, the law of the state in which the injury occurred." Boone v. Boone, 345

1. C. 8, 13, 546 S. E. 2d 191, 193 (2001). Hencely's injury occurred in Afghanistan. So a routine application of South Carolina's lex loci delicti rule would call for a trial under 5

------------ The result might be the same under choice of law rules like the gov-5 ernment-interest test or the test in the Restatement (Second) of Conflict of Laws §145 (1969). See, e.g., M. M. v. Islamic Republic of Iran, 708

1. Supp. 3d 22, 47-48 (DC 2023); Sadiqyar v. Mission Essential, LLC, 2020 WL 5210850, *4, n. 3 (SD Ohio, Sept. 1, 2020) ("California choice of law rules, as stated in the 'governmental interests test,' might permit the application of Afghan law").

14 HENCELY v. FLUOR CORP. A

Afghan law as it existed in 2016. Just identifying the rel- 6 evant principles in that body of law would be a challenge. 7 And if the application of state law would impermissibly in- trude in an exclusively federal domain, then adjudicating this case under foreign law would be even worse.

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It is possible that a South Carolina court would not apply the lex loci 6

delicti rule. South Carolina courts, like those in many other States, will not apply another jurisdiction's law when doing so would contravene their own State's public policy. Boone, 345 S. C., at 13, 546 S. E. 2d, at

1. But determining whether Afghan law contravenes South Carolina's public policy would seem to require the identification of the relevant principles of Afghan law. And as petitioner noted at oral argument, some decisions "have applied Afghan law in situations like this." Tr. of Oral Arg. 24; see, e.g., M. M., 708 F. Supp. 3d, at 47-48 (suicide bombing in- volving federal contractor); Haskins v. Midwest Air Traffic Control Serv.,

Inc., 2016 WL 3653531, *5 (ND Ill., July 8, 2016) (plane crash in Afghan-

istan involving American passenger). In fact, Fluor itself has had to lit- igate claims under Afghan law. Allen v. Fluor Corp., 2017 WL 2618821, *5 (ND Tex., June 15, 2017). And other decisions have applied Iraqi law to similar tort claims against American military contractors. See, e.g.,

McGee v. Arkel Int'l, LLC, 671 F. 3d 539, 543 (CA5 2012); Al-Quraishi v.

Nakhla, 728 F. Supp. 2d 702, 763 (Md. 2010).

Despite its length (2416 Articles), the 1977 Afghan Civil Code gives 7 only cursory treatment to standard tort issues and omits discussion of some key topics altogether. The Code states simply that "[i]f harm is inflicted on another due to . . . fault, the perpetrator shall be obligated to pay compensation." Civil Code of the Republic of Afghanistan, Art. 776 (1977 Civil Code) (transl. by Afghanistan Legal Education Project 2014). The Code similarly treats causation and joint and several liability in one- sentence provisions. Arts. 783, 789. If these bare-bones provisions sup- ply insufficient guidance for courts, then the problems multiply. Under Afghanistan's now apparently defunct 2004 Constitution, when no spe- cific provision of law on a question could be found, courts were instructed to consider "Hanafi jurisprudence"--a Sharia legal tradition--and to rule "in a way that attains justice in the best manner." Art. 130; accord, 1977 Civil Code, Art. 2. Cf. Center Khurasan Constr. Co. v. JS Int'l, Inc., 2021 WL 5882342, *2 (D Md., Dec. 10, 2021) ("Ascertaining Afghan law

is no simple task"); Global Fleet Sales, LLC v. Delunas, 203 F. Supp. 3d 789, 805 (ED Mich. 2016) ("[T]he Court would be ill-equipped to apply the law of Afghanistan").

15 Cite as: 608 U. S. ____ (2026) A

III Despite this suit's intrusion into a domain of exclusive federal authority, petitioner contends that his suit is not preempted for two main reasons: (1) the Federal Tort Claims Act's retention of sovereign immunity for "combat- ant activities . . . during time of war" does not apply here, 28 U. S. C. §2680(j), and (2) our decision in Boyle does not dictate preemption. Neither argument provides a ground for rejecting preemption. A The Federal Tort Claims Act (FTCA) does not help peti- tioner because that law simply does not speak to the ques- tion of preemption. The FTCA provides a limited waiver of the United States' sovereign immunity from suit but sets out certain exceptions to that waiver, and one of these ex- ceptions covers claims "arising out of the combatant activi- ties of the military or naval forces, or the Coast Guard, dur- ing time of war." Ibid. This exception protects the Federal Government from liability for petitioner's injuries, but its terms do not address the question whether state tort law applies to a federal contractor carrying out federal wartime policies on a military base in theater. Indeed, that provi- sion does not even give rise to an inference of non-preemp- tion. Since the FTCA concerns the Government's sovereign immunity, and since government contractors enjoy no such immunity, that Act would be a strange place to include a provision shielding such contractors from state-law liabil- ity. If anything, §2680(j) lends support to preemption be- cause it is based on the same strong federal interest that provides the basis for preemption here: the exclusive au- thority of the President and Congress to decide how combat- related activities should be conducted.

16 HENCELY v. FLUOR CORP. A

Boyle, likewise, does not support petitioner's argument. Petitioner urges us not to "extend" the holding in Boyle, Brief for Petitioner 31, but that argument rests on the false premise that Boyle governs the preemption of all tort claims against government contractors. Boyle's holding concerns the preemption of claims based on a particular federal in- terest, namely, the Government's interest in "the perfor- mance of federal procurement contracts." 487 U. S., at 506. When preemption is sought on the ground that the applica- tion of state law would impermissibly undermine that in- terest, Boyle provides a test for determining whether appli- cation of the state law in question would actually have that effect. It asks whether "(1) the United States approved rea- sonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equip- ment that were known to the supplier but not to the United States." Id., at 512. If all those requirements are met, Boyle infers that any dangerous defect in the product "may well reflect a significant policy judgment by Government offi- cials." Id., at 513. Therefore, imposing liability on a con- tractor for an allegedly dangerous feature of the design the Government required would pressure contractors to deviate from that design, and that would undermine the Govern- ment's interest in "the performance of federal procurement contracts" in accordance with its wishes. Id., at 506. The preemption claim in this case rests on a different ba- sis. The federal interest at stake is not the performance of a procurement contract but the interest in making foreign- affairs and strategic military decisions without state inter- ference. That interest did not figure in Boyle's preemption analysis. As the Court notes, the claim in Boyle did not in- volve combatant activities. Ante, at 6. It concerned a heli- copter crash off the coast of Virginia. Although the plaintiff was a Marine and the helicopter was designed for military

CCite as: 608 U. S. ____ (2026) 17 A

use, the Court treated the contract under which the heli- copter was procured like any other government contract. If the helicopter had been designed and procured for a civilian agency, the Court's analysis would have been the same. If anything, Boyle lends support to preemption here be- cause it held state law was preempted even in the absence of any relevant express preemption provision. And it recog- nized that a state tort claim may be preempted if it intrudes on an area involving a "uniquely federal interes[t]." 487

1. S., at 504. But its relevance for present purposes stops there. One other argument offered by the majority requires a response. The majority argues that federal law does not preempt all state-law claims "connected to a war zone."

Ante, at 13. But the claim here is not simply one with some

sort of connection to a "zone" in which there was an ongoing war. Rather, it is a claim that is intertwined with policy decisions regarding the way in which the war in Afghani- stan should have been conducted. The Court suggests that "barring other statutory or con-

stitutional considerations, plaintiffs have been able to en-

force their legal rights even when they are violated during war." Ibid. (emphasis added). Here, however, it is precisely because of "constitutional considerations" that petitioner's state-law claims are preempted. In support of the proposition that a state-law tort claim may by based on war-related conduct, the Court cites three cases, but they are all far afield. The first, Penn Dairies,

Inc. v. Milk Control Comm'n of Pa., 318 U. S. 261 (1943),

concerned the application of a Pennsylvania milk-control law to a base in the State. To state the obvious, state regu- lation of milk prices for a stateside military base presents a far lower risk of intrusion into federal war powers than

18 HENCELY v. FLUOR CORP.

state regulation of defense contractors' activities in a for- eign warzone. The other two cases are the products of a bygone legal era. See Little v. Barreme, 2 Cranch 170 (1804); Mitchell v.

Harmony, 13 How. 115 (1852). Both cases predated Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), and neither applied

state law. Little involved the seizure of a vessel in the Car- 8 ibbean and appears to have applied admiralty or general federal common law. See 2 Cranch, at 179. Mitchell con- cerned the seizure of a merchant's personal property in Mexico during the Mexican-American War. 13 How., at

1. It, too, appears to have applied general federal com- mon law. See id., at 135-136. Thus, neither case ad- 9 dresses whether the Constitution preempts the application of state tort law to those carrying out federal wartime poli- cies on a foreign military base.

------------ Additionally, both cases arose when the United States had plenary8 sovereign immunity from tort suits. During that period, wronged parties often obtained judgments against the officers who engaged in the con- tested conduct (and did not enjoy qualified immunity), and Congress of- ten passed private bills indemnifying the officers. See J. Pfander, Iqbal,

Bivens, and the Role of Judge-Made Law in Constitutional Adjudication,

114 Pa. St. L. Rev. 1387, 1394 (2010). That is what appears to have hap- pened in these cases. See id., at 1393-1394 (the Court's opinion in Little "reflected the Court's perception that Congress bore responsibility for in- demnifying Captain Little"). The majority says that the "source of the tort principles" in Little and 9 Mitchell is irrelevant because all tort claims would be preempted under Fluor's rule. Ante, at 14, n. 3. But I do not contend that the Constitution bars all tort claims against Fluor, regardless of their source. Because the Constitution makes war an exclusively federal domain, federal law-- including federal tort law--governs. State tort law, by contrast, has no role to play in war. Little and Mitchell are consistent with that dichot- omy because they applied federal common law, not state law. The ques- tion of what, if any, federal tort claims Hencely could bring against Fluor is not presented here.

19 Cite as: 608 U. S. ____ (2026) A * * *

The Constitution divides authority between the Federal Government and the States in many areas, but not when it comes to war. War is the exclusive domain of the Federal Government, but the Court allows state (or foreign law) to encroach on that domain. The Constitution precludes that encroachment, and therefore petitioner's suit is preempted. Because the Court holds otherwise, I respectfully dissent.