Hencely v. Fluor Corp.

P R E L I M I N A R Y P R I N T
Volume 608 U. S. Part 1
Pages 31–66
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 22, 2026
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2025
31
Syllabus
HENCELY v. FLUOR CORP. et al.
certiorari
to the united states court of appeals for
the fourth circuit
No. 24–924. Argued November 3, 2025—Decided April 22, 2026
Military contractor Fluor Corporation hired Ahmad Nayeb to work at a
U. S. base in Afghanistan as part of the “Afghan First” initiative, a mili-
tary program that required contractors to hire Afghans to help stimu-
late the local economy and stabilize the Afghan Government. Nayeb, a
Taliban operative, later carried out a suicide-bomb attack at the base
that killed 5 and wounded 17. The Army's investigation found Fluor
primarily responsible for the attack because it negligently supervised
Nayeb in complying with base procedures. Former Army specialist
Winston T. Hencely, who suffered a fractured skull and brain injuries in
the course of stopping Nayeb before he could reach a larger crowd,
sued Fluor in the United States District Court for the District of South
Carolina seeking damages under South Carolina law for negligent su-
pervision, negligent entrustment of tools, and negligent retention of
Nayeb. The District Court entered summary judgment for Fluor, and
the Fourth Circuit affrmed. It held that during wartime, state-law
claims against military contractors under military command arising out
of combatant activities are preempted. The Fourth Circuit reasoned
that the Federal Tort Claims Act's combatant-activities exception,
which preserves the Federal Government's immunity against claims
“arising out of the combatant activities of the military” during wartime,
28 U. S. C. § 2680( j), also refects a congressional intent to bar tort suits
against contractors connected with those combatant activities, even
when the contractor is alleged to have violated its instructions from
the military.
Held: The Fourth Circuit erred in fnding Hencely's state-law tort claims
preempted where the Federal Government neither ordered nor author-
ized Fluor's challenged conduct. Pp. 37–48.
(a) Neither the Constitution nor any federal statute expressly pre-
empts Hencely's suit. The Supremacy Clause requires state law to
yield only when it conficts with rights or restrictions that stem from
the Constitution or a valid federal statute or treaty. Kansas v. Garcia,
589 U. S. 191, 202. Here, no constitutional provision or federal statute
expressly preempts Hencely's suit. And the Court has already held
that the FTCA's combatant-activities exception does not itself apply to

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32 HENCEL
Y v. FLUOR CORP.
Syllabus
suits against federal contractors. See United States v. Orleans, 425
U
. S. 807, 813–814. Pp. 37–48.
(b) Lacking any constitutional or statutory text supporting preemp-
tion, the Fourth Circuit relied on Boyle v. United Technologies Corp.,
487 U. S. 500. Boyle does not support the Fourth Circuit's preemption
rule. Boyle involved a procurement contract, not a performance con-
tract like the one here, and it did not involve the FTCA's combatant-
activities exception. More importantly, Boyle recognized displacement
of state law only when there is a “signifcant confict” between state law
and “an identifable federal policy or interest.” Id., at 507 (internal
quotation marks omitted). Boyle accordingly protects a contractor
only when the Government directed the contractor to do the very thing
challenged in the suit. Correctional Services Corp. v. Malesko, 534
U. S. 61, 74, n. 6. Hencely, by contrast, sued Fluor for conduct that was
not authorized by the military and was allegedly contrary to federal
instructions. Boyle's reasoning thus contradicts the Fourth Circuit's
analysis. Even assuming a “uniquely federal interest” in regulating
military bases overseas, no “signifcant confict” exists between that in-
terest and state-law negligence liability based on a contractor's depar-
ture from military instructions. Boyle, 487 U. S., at 507. Pp. 38–43.
(c) The Fourth Circuit's preemption test sweeps too broadly. The
FTCA's combatant-activities exception protects the Government's own
combat-related decisions. Any comparable federal interest would
therefore preempt state law only where the challenged conduct can
fairly be treated as the military's own conduct or decision. But the
Fourth Circuit expressly concluded that resolving Hencely's claims
would not require evaluating the reasonableness of military judgments,
and it nonetheless found preemption simply because the suit arose in
a wartime combat setting. Boyle's rationale justifes no such blanket
preemption. Pp. 43-45.
(d) Nor does the Constitution's structure implicitly bar this suit. Al-
though the Constitution gives Congress and the President broad war
powers, that assignment has never been understood to bar all war-
related tort suits. And federal contractors do not automatically share
the Government's immunity merely because they perform services for
it. Absent a statute to the contrary, States can regulate or tax federal
contractors on the same terms as any private company. See, e. g.,
James Stewart & Co. v. Sadrakula, 309 U. S. 94, 104. Fluor does not
attempt to, and could not, invoke a defense under Yearsley v. W. A. Ross
Constr. Co., 309 U. S. 18. The Yearsley doctrine shields a contractor only
when it is being sued precisely for accomplishing what the Federal Gov-
ernment requested. Because Fluor is alleged to have acted outside the
authority the military granted it, Yearsley does not apply. Pp. 45–48.

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33
Syllabus
120 F. 4th 412, vacated and remanded.
Thomas
, J., delivered the opinion of the Court, in which Sotomayor,
Kagan, Gorsuch, Barrett, and Jackson, JJ., joined. Alito, J., fled a
dissenting opinion, in which Roberts, C. J., and Kavanaugh, J., joined,
post, p. 49.
Frank H. Chang argued the cause for petitioner. With
him on the briefs were Tyler R. Green, Thomas R. McCar-
thy, Taylor A. R. Meehan, Cody Ray Milner, James E. But-
ler, Jr., W. Andrew Bowen, Paul W. Painter III, Stephen D.
Morrison III, and Robert H. Snyder, Jr.
Mark W. Mosier argued the cause for respondents. With
him on the brief were Daniel L. Russell, Jr., Raymond B.
Biagini, and Kendall T. Burchard.
Deputy Solicitor General Gannon argued the cause for
the United States as amicus curiae urging affrmance.
With him on the brief were Solicitor General Sauer, Assist-
ant Attorney General Shumate, Joshua Y. Dos Santos, Brad
Hinshelwood, and Lowell V. Sturgill, Jr.*
*Briefs of amici curiae urging reversal were fled for the State of West
Virginia et al. by John B. McCuskey, Attorney General of West Virginia,
and Michael R. Williams, Solicitor General, and by the Attorneys General
for their respective States as follows: Steve Marshall of Alabama, Tim
Griffn of Arkansas, Kathleen Jennings of Delaware, James Uthmeier of
Florida, Raúl Labrador of Idaho, Theodore E. Rokita of Indiana, Kris
Kobach of Kansas, Liz Murrill of Louisiana, Keith Ellison of Minnesota,
Lynn Fitch of Mississippi, Austin Knudsen of Montana, Michael T. Hil-
gers of Nebraska, Raúl Torrez of New Mexico, Jeff Jackson of North Caro-
lina, Gentner Drummond of Oklahoma, Dan Rayfeld of Oregon, Alan
Wilson of South Carolina, Marty Jackley of South Dakota, and Ken Pax-
ton of Texas; for the American Association for Justice by Jeffrey R. White
and Bruce Plaxen; for the Center for Military Law and Policy et al. by
Noah Heinz and Harvey Weiner; for Public Citizen by Scott L. Nelson and
Allison M. Zieve; and for the Veterans of Foreign Wars of the United
States by Peter B. Rutledge and Hillary K. Lukacs.
Briefs of amici curiae urging affrmance were fled for the Atlantic
Legal Foundation by Lawrence S. Ebner; for the Chamber of Commerce
of the United States of America by Elbert Lin, Maya M. Eckstein, David
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34 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
In
2016, a Taliban operative working for respondent Fluor
Corporation, a military contractor, carried out a suicide-
bomb attack at Bagram Airfeld in Afghanistan. After then-
Army Specialist Winston T. Hencely confronted him, the
bomber detonated his suicide vest. As a result of the in-
juries he received, Hencely is now permanently disabled.
In an effort to recover damages for his injuries, Hencely
sued Fluor, bringing state-law tort claims for negligently
retaining and supervising the attacker. According to
Hencely and the United States military, Fluor's conduct was
not authorized by the military and even violated instructions
the military had given it as a condition of operating on the
base.
Fluor argues that federal law preempts Hencely's suit.
But, no statute or constitutional provision expressly does so.
And, our precedent suggests that state law is generally not
preempted when the “contractor could comply with both its
contractual obligations” to the military and state law—unlike
when the state-imposed duty “is precisely contrary to the
duty imposed by the Government contract.” Boyle v.
United Technologies Corp., 487 U. S. 500, 509 (1988). How-
ever, the United States Court of Appeals for the Fourth Cir-
cuit held that federal law preempts Hencely's suit based on
a different rule: During wartime, all state-law claims against
military contractors under military command arising out of
combatant activities are preempted regardless of whether
any confict exists between the military's instructions and
state law. 120 F. 4th 412, 426 (2024). We disagree. The
preemption rule on which the Fourth Circuit relied lacks any
foundation in the Constitution, federal statutes, or our
precedents.
M. Parker, and Jonathan D. Urick; and for Retired Senior Military Off-
cers by Jeffrey B. Wall.
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35
Opinion of the Court
I
A
H
encely, a former Army specialist, was seriously injured
in a Taliban suicide attack on Veteran's Day 2016 at Bagram
Air field, then the largest U. S. base i n Afghanist an.
Hencely saw the perpetrator, Taliban operative Ahmad
Nayeb, as Nayeb was walking toward a Veteran's Day 5K
race. When Hencely attempted to question him, Nayeb det-
onated his suicide vest. The explosion killed 5 and wounded
17. Hencely, then just 20 years old, suffered a fractured
skull and brain injuries. The Army concluded that
Hencely's intervention “likely prevent[ed] a far greater trag-
edy.” App. to Pet. for Cert. 156.
Nayeb worked as a “Local National” contractor at Bagram
as part of the military's “Afghan First” program. 120 F. 4th,
at 418. That program sought to stimulate the local economy
and stabilize the Afghan Government by requiring contrac-
tors to hire Afghans “ `to the maximum extent possible.' ”
Ibid. The military interviewed and screened potential em-
ployees. During this process, it learned that Nayeb had
been involved with the Taliban in the past. Nonetheless, it
approved him for employment.
After this approval, Fluor's subcontractor hired Nayeb to
work in the base's nontactical vehicle yard. The Army's
contract with Fluor made it “ `responsible for oversight of
[its] personnel or Subcontractors to ensure compliance with
all terms of the' ” contract. Id., at 419. Fluor was also re-
quired to comply with base-security policies. Under the
“Bagram Airfeld Badge, Screening, and Access Policy,” all
nonuniformed personnel, including Nayeb, were assigned a
color-coded badge. Ibid. The policy required that Fluor
escort red-badge holders like Nayeb in all areas of the base
except at their work sites and maintain “ `constant view' of
them.” Id., at 419–420.
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36 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
The Army's investigation found Fluor primarily respon-
sible
for the attack. Interviews of Fluor personnel “re-
veal[ed] a poor understanding by Fluor supervisors as to who
was responsible for Nayeb's supervision” and “an unreason-
able complacency by Fluor to ensure Local National employ-
ees were properly supervised at all times, as required by
their contract.” App. to Pet. for Cert. 171. The Army also
concluded that Fluor failed to impose adequate disciplinary
measures on Nayeb, who slept on the job and was absent
from his work area without justifcation, even though these
were grounds for fring him. Fluor's lax supervision, the
Army's report continued, allowed Nayeb to check out tools
that he did not need for his job and that he used to make the
bomb inside Bagram. And, Fluor “was . . . defcient in [its]
performance of executing and supervising escort duties”
when employees like Nayeb left their work stations to leave
the base. Id., at 174. Instead of escorting Nayeb to the
base exit at the end of his shift, Fluor relied on a sign-out
system administered by another Afghan employee, in viola-
tion of the base's badge policies. The report found that this
lax supervision “enabled Nayeb to go undetected” for nearly
an hour on the day of the attack and to walk at liberty
throughout the base until Hencely confronted him. Id., at
176. In sum, the report concluded that “the primary con-
tributing factor” to the attack was “Fluor's complacency and
its lack of reasonable supervision of its personnel.” Id.,
at 158.
B
Hencely sued Fluor and its subsidiaries in the United
States District Court for the District of South Carolina,
where two Fluor subsidiaries are located. Hencely brought
claims under South Carolina law for negligent supervision,
negligent entrustment of tools, and negligent retention of an
employee. Following Circuit precedent, the District Court
entered summary judgment for Fluor. 554 F. Supp. 3d 770,
774 (2021). Under that precedent, suits against military
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as: 608 U. S. 31 (2026)
37
Opinion of the Court
contractors arising out of combatant activities are generally
preempted.
See In re KBR, Inc., Burn Pit Litigation, 744
F. 3d 326, 349, 351 (CA4 2014).
The Fourth Circuit affrmed under this “battlefeld pre-
emption” doctrine. 120 F. 4th, at 418, 430. According to
the Fourth Circuit, “ `[d]uring wartime, where a private
service contractor is integrated into combatant activities
over which the military retains command authority, a tort
claim arising out of the contractor's engagement in such ac-
tivities shall be preempted.' ” In re KBR, 744 F. 3d, at 349
(quoting Saleh v. Titan Corp., 580 F. 3d 1, 9 (CADC 2009)).
The court reasoned that the Federal Tort Claims Act's
combatant-activities exception, which preserves the Federal
Government's immunity against claims “arising out of the
combatant activities of the military” during wartime, 28
U. S. C. § 2680( j), also refects a congressional intent to bar
all tort suits against contractors connected with those com-
batant activities. On the Fourth Circuit's view, state-law
tort suits cannot proceed even when the contractor is alleged
to have violated its instructions from the military.
We granted Hencely's petition for a writ of certiorari to
decide whether a state-law suit premised on a military con-
tractor's activities in a war zone is preempted even when the
contractor was not required or authorized to take the action
at issue. 605 U. S. 968 (2025).
II
Neither the Constitution nor any federal statute supports
the Fourth Circuit's broad rule. Nor does the Court's opin-
ion in Boyle support preemption in this case.
A
The Supremacy Clause provides that the Constitution, fed-
eral statutes, and treaties are “the supreme Law of the
Land; . . . any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” Art. VI, cl. 2. “[W]hen
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38 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
a regulated party cannot comply with both federal and state
direc
tives, the Supremacy Clause tells us the state law must
yield.” Martin v. United States, 605 U. S. 395, 409 (2025).
But, “[t]here is no federal pre-emption in vacuo, without a
constitutional text or a federal statute to assert it.” Puerto
Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.,
485 U. S. 495, 503 (1988). Instead, “the federal restrictions
or rights that are said to confict with state law must stem
from either the Constitution itself or a valid statute enacted
by Congress.” Kansas v. Garcia, 589 U. S. 191, 202 (2020).
Fluor has not identifed any provision of law expressly pre-
empting Hencely's suit. No constitutional provision says it
is preempted, and neither the Fourth Circuit nor Fluor sug-
gests otherwise. Nor does any federal statute preempt this
suit. Fluor cites only the FTCA's combatant-activities ex-
ception, § 2680( j), which, this Court has explained, does not
apply to suits against federal contractors, see United States
v. Orleans, 425 U. S. 807, 813–814 (1976) (citing § 2671); ac-
cord, post, at 62–63. (Alito, J., dissenting).
B
Without any constitutional or statutory text expressly
supporting preemption, the Fourth Circuit, like the D. C. Cir-
cuit before it, resorted to our precedent in Boyle. 120
F. 4th, at 425–426; see also Saleh, 580 F. 3d, at 5. According
to the Fourth Circuit, Boyle requires preemption of all
claims against contractors engaged in combatant activities
under the military's command authority. 120 F. 4th, at 425–
426. For its part, the Government asserts that an action is
preempted if it “arises from both combatant activities and a
contractor's actions within the scope of its contract.” Brief
for United States as Amicus Curiae 28. Our precedents do
not support either rule.
To start, Boyle does not squarely govern. It concerned
the performance of a procurement contract, not a perform-
ance contract, and the combatant-activities exception was
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as: 608 U. S. 31 (2026)
39
Opinion of the Court
not at issue. Accord, post, at 64 (opinion of Alito, J.). But,
regardless,
its reasoning does not support the Fourth Cir-
cuit's preemption rule.
Under our precedents, Boyle explained, “a few areas, in-
volving `uniquely federal interests,' are so committed by the
Constitution and laws of the United States to federal control
that state law is pre-empted and replaced, where necessary,
by federal law,” fashioned by federal courts in the absence
of congressional action. 487 U. S., at 504 (quoting Texas In-
dustries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640
(1981); citation omitted); see, e. g., Clearfeld Trust Co. v.
United States, 318 U. S. 363, 366–367 (1943); United States v.
Kimbell Foods, Inc., 440 U. S. 715, 726–729 (1979). In those
rare areas of “uniquely federal interest,” the Court has held
state law preempted when there is a “signifcant confict”
between “an identifable federal policy or interest and the
[operation] of state law,” or when “specifc objectives” of fed-
eral legislation would be frustrated. Boyle, 487 U. S., at
505, 507 (internal quotation marks omitted). This Court has
emphasized the narrowness of this doctrine, which will
rarely apply when “litigation is purely between private par-
ties and does not touch the rights and duties of the United
States.” Bank of America Nat. Trust & Sav. Assn. v. Par-
nell, 352 U. S. 29, 33 (1956); see Boyle, 487 U. S., at 506.
In Boyle, the confict between federal interests and state
law was particularly sharp. There, a Marine helicopter pilot
drowned after a crash during a training exercise. Id., at
502. The pilot's father sued the manufacturer of the helicop-
ter, alleging that, under state tort principles, the escape
hatch for the helicopter should have opened inward even
though the federal procurement contract for the helicopter
required that it open outward. Id., at 503.
To assess preemption of that suit, the Court frst identifed
a “ `uniquely federal' interest” in the “the civil liabilities aris-
ing out of the performance of federal procurement con-
tracts.” Id., at 505–506. After all, the Court reasoned, in
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40 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), the
Cour
t had rejected “an attempt by a landowner to hold a
construction contractor liable under state law” for eroding
land in the course of constructing dikes for the Government.
Boyle, 487 U. S., at 506 (citing Yearsley, 309 U. S., at 20–21).
There was “no basis for a distinction,” Boyle explained, be-
tween a contractor's fulfllment of a performance contract
like the one in Yearsley and a contractor's faithful execution
of a procurement contract for helicopters. 487 U. S., at 506.
Boyle was clear that the identifcation of a uniquely federal
interest “does not, however, end the inquiry.” Id., at 507.
Instead, this Court's precedents require “a signifcant con-
fict . . . between an identifable federal policy or interest and
the operation of state law.” Ibid. (internal quotation marks
and alterations omitted).
To craft a rule of decision for suits against federal procure-
ment contractors, Boyle turned to the FTCA, which pre-
serves the Federa l Gover nment's sovereig n i mmunity
against a claim “based upon the exercise or performance or
the failure to exercise or perform a discretionary function
or duty,” § 2680(a). See id., at 511. Because the Federal
Government cannot be sued for exercising its discretion to
select helicopter designs, the Court concluded that “state law
which holds Government contractors liable for design defects
in military equipment does in some circumstances” require
displacement. Id., at 512. But even then, not all tort suits
arising out of design defects in federally procured equipment
are preempted. The Court instead adopted a three-part
test requiring preemption if (1) the United States approved
precise specifcations; (2) the equipment conformed to them;
and (3) the supplier warned the United States about the dan-
gers the specifcations entailed. Ibid.
Under this approach, many suits are not preempted. For
example, there would generally be no preemption when the
procured equipment was a stock model, or when the Govern-
ment's specifcations were silent as to the complained-of de-
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41
Opinion of the Court
fect in the product. Id., at 509. And, the Court explained
that
preemption of all suits by military personnel against
procurement contractors would be “too broad” a preemption
rule because it would bar suits even when the Government
did not instruct the contractor to produce equipment with
the challenged feature. Id., at 510.
Boyle's reasoning contradicts the Fourth Circuit's analysis.
Boyle addressed “a special circumstance” in which the con-
tractor has a defense because “the government has directed
a contractor to do the very thing that is the subject of the
claim.” Correctional Services Corp. v. Malesko, 534 U. S.
61, 74, n. 6 (2001). Hencely sued Fluor for conduct that, we
assume (as the Fourth Circuit did), was not authorized by,
but was even contrary to, federal instructions. See 120
F. 4th, at 430. Fluor does not dispute that military offcials
found it to have failed in its contractual obligations. It also
does not dispute that the Army found this failure to be a
cause of Hencely's injuries. Even granting that there is a
“uniquely federal interest” in the regulation of military bases
overseas, there would be no “signifcant confict” between
that interest and state-law negligence liability premised on
a contractor's departure from military instructions. Boyle,
487 U. S., at 507.
An example Boyle gave confrms that Boyle does not jus-
tify the Fourth Circuit's rule. The Court thought it clear
that in a case in which the Government asks a contractor for
a certain result, and the contractor is sued for how it
achieved that result, the suit is not preempted if the Govern-
ment was silent about the conduct that allegedly violated
state law:
“If, for example, the United States contracts for the pur-
chase and installation of an air-conditioning unit, speci-
fying the cooling capacity but not the precise manner of
construction, a state law imposing upon the manufac-
turer of such units a duty of care to include a certain
safety feature would not be a duty identical to anything
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42 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
promised the Government, but neither would it be con-
trary
. The contractor could comply with both its con-
tractual obligations and the state-prescribed duty of
care. No one suggests that state law would generally
be pre-empted in this context.” Id., at 509.
The contract at issue in this case is “like the one for the
hypothetical air conditioner, not the helicopter.” Saleh, 580
F. 3d, at 22 (Garland, J., dissenting). The Fourth Circuit did
not conclude “that the government required or authorized
the contractor personnel at [Bagram Airfeld] to do what
state law forbids,” and Boyle cannot be read to “protect a
contractor from liability resulting from the contractor's vio-
lation of federal . . . policy.” 580 F. 3d, at 22–23. The Gov-
ernment required Fluor to hire Afghan employees and to
provide logistics for Bagram Airfeld. But, it did not,
Hencely contends, require Fluor to leave Nayeb unsuper-
vised, allow him to walk alone for an hour after his shift, or
permit him to obtain unauthorized tools with which he could
build a bomb. Instead, on each score, the Army concluded
that Fluor failed express duties to the Government. Given
this, Hencely's suit premised on Fluor's negligence in carry-
ing out those duties is, under Boyle's reasoning, not pre-
empted just as the hypothetical claims about the air-
conditioner would not be preempted.
None of this should come as a surprise to Fluor under
existing statutes and regulations. “Congress knows full
well how to make its intention to preclude private liability
known.” Saleh, 580 F. 3d, at 26 (Garland, J., dissenting).
Congress gave some contractors express protection from
suits related to their activities. 42 U. S. C. §§ 233(a), (g)
(channeling suits against employees at certain federally
funded health centers); 50 U. S. C. § 2783(b) (providing the
same for contractors carrying out an atomic weapons testing
program). And, in the Defense Base Act, Congress chan-
neled claims by contractors' employees to an administrative
process, see 42 U. S. C. §§ 1651(a), (c), but did not do the same
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43
Opinion of the Court
for suits by soldiers on military bases. Moreover, the Gov-
er
nment advised Fluor that it would not have a blanket de-
fense based on its status as a military contractor. See
Saleh, 580 F. 3d, at 27 (Garland, J., dissenting). Before the
suicide attack that injured Hencely, the Department of De-
fense responded to concerns that its regulations “may lead
courts to deny contractors certain defenses in tort litiga-
tion.” 73 Fed. Reg. 16767 (2008). The Department ob-
served that courts generally “absolv[e] contractors of liabil-
ity to third parties where the Government carried ultimate
responsibility for the operation.” Ibid. But, beyond that
context, the Department warned, contractors must “research
host nation laws and proposed operating environments” be-
cause existing law held “contractors accountable for the neg-
ligent or willful actions of their employees, offcers, and sub-
contractors.”
1
Id., at 16768. The Department explained
that Boyle did not protect nonprocurement contractors and
that contractors should not expect “to avoid accountability
to third parties for their own actions by raising defenses
based on the sovereignty of the United States.” 73 Fed.
Reg. 16768.
C
Since Boyle did not reach this case, the Fourth Circuit
expanded it. “ `In the context of the combatant activities
exception,' ” it observed, “ `the relevant question is not so
much whether the substance of the federal duty is inconsist-
1
The Department of Defense therefore did not share the dissent's alarm
at the prospect of military contractors' being subject to foreign law.
Post, at 60–62, and nn. 5–7. In fact, American courts have long decided
cases relying on foreign law. See, e. g., Animal Science Products, Inc. v.
Hebei Welcome Pharmaceutical Co., 585 U. S. 33, 37–41 (2018); Canada
Malting Co. v. Paterson S. S., Ltd., 285 U. S. 413, 421–422 (1932). Regard-
less, the issue is academic here, as both sides invoked South Carolina law
in this case, and, in the Fourth Circuit, Fluor did not “provid[e] any indi-
cation . . . how the outcome would be different under Afghan law.” 120
F. 4th 412, 424, n. 4 (2024).
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44 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
ent with a hypothetical duty imposed by the state.' ” 120
F
. 4th, at 429 (quoting Saleh, 580 F. 3d, at 7; emphasis added).
Instead, the court reasoned, “it is the imposition per se of
the state . . . tort law that conficts with the federal policy of
eliminating ” state regulation of the military during wartime.
120 F. 4th, at 429 (internal quotation marks omitted).
That test sweeps too broadly. The FTCA's combatantac-
tivities exception forecloses suits “arising out of the combat-
ant activities of the military or naval forces, or the Coast
Guard.” 28 U. S. C. § 2680( j) (emphasis added). Like the
discretionary-function exception on which Boyle relied, the
combatant-activities exception protects the Government's
decisionmaking. Accordingly, the Fourth Circuit seems to
have recognized that the relevant federal interest is “fore-
closing state regulation of the military's battlefeld conduct
and decisions.” In re KBR, 744 F. 3d, at 350 (emphasis
added). But, even assuming such an interest can preempt
state law, “[n]o signifcant confict exists between that inter-
est and state law unless the challenged action can reasonably
be considered the military's own conduct or decision and the
operation of state law would confict with that decision.”
Badilla v. Midwest Air Traffc Control Serv., Inc., 8 F. 4th
105, 128 (CA2 2021).
The Fourth Circuit's decision not only extended, but con-
tradicted, Boyle. Boyle created a defense for contractors
only insofar as the suit challenged a decision of the Govern-
ment that the contractor merely carried out. A confict
even with the new “uniquely federal interest” the lower
courts have identifed in military operations, then, would
have to emerge from a state-law suit challenging the mili-
tary's decisions on the battlefeld. The Fourth Circuit did
not ask that question. To the contrary, it expressly con-
cluded that resolving Hencely's claims under South Carolina
law would not require “evaluat[ing] the reasonableness of
military judgments.” 120 F. 4th, at 424; contra, post, at 59
(opinion of Alito, J.). But, it went on to fnd preemption in

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as: 608 U. S. 31 (2026)
45
Opinion of the Court
any case because it thought that the Government's “ `interest
i
n combat is always precisely contrary to the imposition of a
non-federal tort duty.' ” 120 F. 4th, at 426 (quoting KBR, 744
F. 3d, at 349; emphasis added). Boyle's rationale justifes no
such blanket preemption.
D
Perhaps sensing this, Fluor and the Government argue
that, even without Boyle, the Constitution's structure implic-
itly preempts any suit against a military contractor operat-
ing in a combat zone. See Brief for Respondents 30–33;
Brief for United States as Amicus Curiae 30. This argu-
ment has no basis in the text of the Constitution or our
precedent.
All acknowledge that the Federal Government has “ `broad
and sweeping ' ” war powers. Rumsfeld v. Forum for Aca-
demic and Institutional Rights, Inc., 547 U. S. 47, 58–59
(2006) (quoting United States v. O'Brien, 391 U. S. 367, 377
(1968)). The Constitution assigns Congress the power to
“declare War,” “raise and support Armies,” “provide and
maintain a Navy,” and “make Rules for the Government and
Regulation of the land and naval Forces.” Art. I, § 8, cls.
11–13. The President is the “Commander in Chief of the
Army and Navy of the United States” and militias in federal
service. Art. II, § 2, cl. 1. States, for their part, may not
“engage in War, unless actually invaded.” Art. I, § 10, cl. 3.
But, the Constitution's grant of war powers does not imply
that courts must reject any tort claim connected to a war
zone, as the Fourth Circuit's rule requires.
2
See 120 F. 4th,
at 429. The assignment of those powers to Congress and
the Executive has never been understood to bar all war-
related tort suits. To the contrary, barring other statutory
or constitutional considerations, plaintiffs have been able to
2
The dissent does not appear to disagree. See post, at 64. Nor does
it defend the preemption rule applied below, even while it would fnd pre-
emption on other grounds.
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46 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
enforce their legal rights even when they are violated during
war
. Only a few years after the adoption of the Constitu-
tion, the Court addressed the case of Captain Little, com-
mander of a United States frigate. Little v. Barreme, 2
Cranch 170 (1804) (Marshall, C. J.). Captain Little acted on
the Secretary of the Navy's orders and seized a Danish ves-
sel for violating American neutrality laws during the Quasi-
War with France. Id., at 176–178. The Court found that
the orders exceeded the President's statutory authority and
held that “Captain Little then must be answerable in dam-
ages to the owner of this neutral vessel” despite a seizure
“with pure intention” to carry out U. S. military policy. 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 trav-
eling with the military in the war zone. Id., at 129–130.
The merchant sued, and the Court affrmed the tort judg-
ment against Colonel Mitchell. Id., at 137. As this history
shows, the mere fact that the conduct here occurred 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 consti-
tutional immunity of the national government from state
taxation and from state regulation of the performance, by
3
The dissent observes that these decisions applied the “bygone” federal
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 65. 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 activi-
ties under the rule that Fluor urges, these suits would have been barred
regardless of the source of the tort principles they relied on.

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47
Opinion of the Court
federal offcers and agencies, of governmental functions.”
P
enn 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 offcers 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,
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 increas-
ing 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
“fnd in Congressional legislation . . . any disclosure of a pur-
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48 HENCEL
Y v. FLUOR CORP.
Opinion of the Court
pose to immunize government contractors from local price-
fxi
ng regulations which would otherwise be applicable.”
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
U. S., at 19. The landowners sued and secured a judgment
against the contractor. Id., at 20. This Court reversed.
The Court explained that “if th[e] authority to carry out the
project 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
contrasted with Yearsley cases in which a Government agent
had `exceeded his authority' or the authority `was not validly
conferred'; in those circumstances, the Court said, the agent
could be held liable for conduct causing injury to another.”
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 pre-
empted even though the conduct complained of was neither
ordered nor authorized by the Federal Government. No
provision of the Constitution and no federal statute justifes
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 consist-
ent with this opinion.
It is so ordered.
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49
Alito, J., dissenting
Justice Alito, with whom The Chief Justice and Jus-
tice
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 mili-
tary 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 Airfeld 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
U. 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 decided
for strategic reasons to adopt a policy known as “Afghan
First,” which required contractors working on the base to
maximize the employment of Afghans. Under that policy,
military offcials 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 defense objectives justifed
that danger. As a result, a subcontractor for Fluor Corpora-
tion, a defense contractor engaged in work on the base, em-
ployed Nayeb. Fluor had responsibility for supervising
Nayeb's conduct, and Fluor allegedly failed to provide ade-
quate 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 Government,
petitioner brought this diversity suit against Fluor and as-
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50 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
serted tort claims under South Carolina law. Like all mem-
bers
of the military wounded in the service of our country,
petitioner deserves a full measure of support from the Amer-
ican people, who owe him a debt that can never be fully re-
paid. 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 feld, Art. I, § 10, cl. 3, and thus no state law,
including state tort law, may intrude on the Federal Govern-
ment'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 deci-
sions about the operation of Bagram Airfeld during the War
on Terror. Fluor has stated that it will attempt to assign
blame for the bombing to the military. In doing so, Fluor is
likely to challenge the military's decision to give Nayeb ac-
cess to the base in the frst place, as well as the suffciency 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 policy decisions that in-
volved a delicate and contestable balancing of wartime inter-
ests. In the end, a jury may be asked to decide whether
petitioner's injuries were caused by the negligence or bad
judgment of military decisionmakers and the offcers respon-
sible 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 sim-
ply ascertaining those principles would be a daunting task.
Because petitioner's state-law claims intrude on the Fed-
eral Government's exclusive power to make war and conduct
combat operations, the Constitution preempts them.

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51
Alito, J., dissenting
I
A
The
Constitution makes federal law the “supreme Law of
the Land,” Art. VI, cl. 2, and over the years, this Court has
identifed 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 evi-
dent: 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 34, 37–38. But
these two categories do not constitute an exhaustive list.
Our precedents squarely establish that the Constitution and
other federal laws may also impliedly preempt state law.
Kansas v. Garcia, 589 U. S. 191, 202–203 (2020). And most
pertinent here, we have long recognized that federal law pre-
empts state laws that intrude on the powers that the Consti-
tution confers exclusively on the Federal Government, as
well as laws that substantially interfere with the operation
of the Federal Government's organs or the work of federal
offcers.
Our decisions in this vein began at least as early as Mc-
Culloch v. Maryland, 4 Wheat. 316 (1819), where the Court
held that Maryland could not tax the Second Bank of the
United States. Writing for the Court, Chief Justice Mar-
shall 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 Marshall 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 operations of the con-
stitutional laws enacted by Congress to carry into execution
the powers vested in the general government.” Id., at 436.
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52 HENCEL
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Alito, J., dissenting
That principle doomed Maryland's tax even though no provi-
si
on 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. Rather, 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 landmark
case involving the Second Bank of the United States reaf-
frmed the principle of implied preemption recognized in Mc-
Culloch. 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 anything to pre-
empt them. Id., at 865. For example, the “collectors of the
revenue, the carriers of the mail, the mint establishment, and
all those institutions which are public . . . are protected,
while in the line of duty; and yet this protection is not ex-
pressed 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 felds
that are “exclusively federal, because made so by constitu-
tional or valid congressional command,” or because they “so
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 felds the
“ `States have traditionally occupied.' ” Wyeth v. Levine, 555
U. S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518
U. S. 470, 485 (1996)). But when state law intrudes in an
exclusively federal domain, the rationale for the presumption
does not apply. In those felds, the “confict with federal pol-
icy need not be as sharp as that which must exist for ordi-
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53
Alito, J., dissenting
nary pre-emption when Congress legislates `in a feld which
the
States have traditionally occupied.' ” Boyle v. 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 otherwise be a
confict that cannot produce pre-emption into one that can.”
Boyle, 487 U. S., at 508 (emphasis deleted).
Osborn, as noted, enumerated several exclusive federal do-
mains into which States may not intrude, and later cases
reaffrmed and further developed that list. For example,
the Court held that States cannot prosecute federal agents
for their offcial 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 qualifca-
tions for membership in Congress that go beyond those set
out in the Constitution. U. S. Term Limits, Inc. v. Thorn-
ton, 514 U. S. 779, 806 (1995). Nor can States enact qualif-
cations for federal employees that surpass the minimum
qualifcations imposed by federal law. Johnson v. Mary-
land, 254 U. S. 51, 57 (1920). States are also barred from
singling out the Federal Government for unfavorable treat-
ment in contracting. United States v. 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 priority of federal liens that
arise under a nationwide program. United States v. Kim-
bell 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 38, and preemption cannot be based on “ `some brood-
ing federal interest' ” or a “ `freewheeling judicial inquiry

54 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
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., con-
curring in part and dissenting in part); id., at 437–438
(Thomas, J., concurring in part and dissenting in part); id.,
at 441 (Alito, J., concurring in part and dissenting in part).
1
But any argument that constitutional structure cannot itself
preempt state law comes more than two centuries too late.
B
Preemption based on constitutional structure is especially
important when state law intrudes upon the Federal Govern-
ment's exclusive authority to conduct relations with other
nations or to wage war. As the Court has repeatedly ex-
plained, 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 . . . impera-
tively requires that federal power in the feld affecting for-
eign relations be left entirely free from local interference.”
Ibid.; see also United States v. Belmont, 301 U. S. 324, 330–
1
In that case, a state law required law enforcement offcers to contact
federal authorities regarding the immigration status of a detainee if they
reasonably suspected that he or she was in this country unlawfully. Ari-
zona, 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
conficted with the Government's enforcement policy, which gave priority
to the removal of those illegal aliens who had criminal records or pre-
sented 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 rejected that argument.
Just because the state law might have led to phone calls or emails that
federal immigration offcers did not wish to receive provided no sound
basis for preemption. See, e. g., Arizona, 567 U. S., at 412–413; id., at
442–446 (Alito, J., concurring in part and dissenting in part).
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55
Alito, J., dissenting
331 (1937) (“Governmental power over external affairs is not
distr
ibuted, but is vested exclusively in the national govern-
ment . . . and cannot be subject to any curtailment or inter-
ference on the part of the several states”); Zschernig v.
Miller, 389 U. S. 429, 432 (1968) (the Constitution permits no
“intrusion by the State into the feld of foreign affairs which
the Constitution entrusts to the President and the Con-
gress”); 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 fed-
eral wartime policy-making ”).
We have applied this principle in numerous preemption
cases. In Crosby v. National Foreign Trade Council, 530
U. S. 363 (2000), we held that a federal statute imposing sanc-
tions 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 conclusion 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 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 delega-
tion of authority to the Federal Government to provide for
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56 HENCEL
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Alito, J., dissenting
the common defense.” Torres v. Texas Dept. of Public
Sa
fety, 597 U. S. 580, 590 (2022). The framing generation
well understood this point. “The States ultimately ratifed
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 au-
thority over foreign affairs and the conduct of wars, federal
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 Airfeld, which for many
years had been regularly attacked by Taliban supporters.
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
contractor and wounded nine servicemembers. A Novem-
ber 2013 rocket attack killed two civilian contractors, and
a December 2015 suicide bombing killed six American
servicemembers.
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,
2
P. Wellman, A Timeline of Important Moments at Bagram Airfeld from
2001– 2021, St ars & Str ipes (Ju ly 2, 2021), https://www.str ipes.com/
theaters/middle_east/2021-07-02/ bagram-airfield-timeline-of-events-since-
2001-2026849.html (archived at https://perma.cc/J3Y7-MFNQ).
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57
Alito, J., dissenting
776, n. 7 (SC 2021). President George W. Bush laid out those
ai
ms as follows: “Our goal in Afghanistan is to help the peo-
ple of that country to defeat the terrorists and establish 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 terrorists.”
3
Later, as President Obama looked forward to the day when
American troops could come home, he added that the United
States supported “open[ing] the door to those Taliban who
abandon violence and respect the human rights of their fel-
low citizens.”
4
Balancing these strategic objectives and Bagram's security
needs, military decisionmakers adopted a policy that entailed
what they must have thought were tolerable and manageable
risks. The policy manifested trust in the Afghan 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
3
President Bush Discusses Progress in Afghanistan, Global War on Ter-
ror (Feb. 15, 2007), https://georgewbush-whitehouse.archives.gov/news/
releases/2007/02/20070215-1.html (archived at https://perma.cc/A6SK-
VVBD).
4
Remarks By the President in Address to the Nation on the Way For-
ward 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).
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58 HENCEL
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Alito, J., dissenting
population.” Ibid. The memo recognized that this direc-
tive
would risk some adverse consequences, but it justifed
the program on the ground that it would “provide opportuni-
ties 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
products,” the memo proclaimed, “we shall do so.” Ibid.
The memo therefore directed military offcials to award
contracts to Afghans, rather than American contractors,
whenever possible. And when offcials awarded contracts to
American companies like Fluor, the memo stated that “[o]r-
ders are to be scoped to maximize employment of Afghans.”
Ibid. Commanders were instructed to set goals and write
reports regarding the percentage of Afghans employed
under the contracts they administered, and the memo chal-
lenged commanders to “be creative and aggressive in carry-
ing 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.
The Afghan First program was incorporated into Fluor's
contract. Specifcally, § 1.07(b) of the relevant task order re-
quired Fluor to “hire [host nation] personnel and Subcontrac-
tors 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 justifed
that danger. The military relied on Fluor to supervise Na-
yeb's conduct on the base, and this arrangement led to the
bombing that seriously injured petitioner.
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Based on what is known about the events leading to the
bombi
ng, it may well be that both the military and Fluor are
responsible for petitioner's injuries. Under South Carolina
law, they could be jointly and severally liable, but because
the military is shielded by sovereign immunity, Fluor is po-
tentially liable for all the compensatory damages that peti-
tioner 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 damages.
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 Fed-
eral Government does not work, Fluor could also use evi-
dence 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
defense is very likely to entail an evaluation of the way the
Federal Government assessed the risks and benefts of Na-
yeb'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 refected in setting security policy. The United States
will have to decide whether public disclosure of such docu-
ments is consistent with the Nation's defense and foreign
policy interests, and its only way to resist their disclosure
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 Dynam-

60 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
ics Corp. v. United States, 563 U. S. 478, 492 (2011). But in
th
is 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 offcers re-
sponsible for setting and implementing base security policy
and protocols may pose similar problems and may also inter-
fere with these offcers' current responsibilities regarding ur-
gent national security challenges. Members of the military
who investigated the bombing may likewise be deposed, sub-
poenaed to testify, and cross-examined about their conclu-
sions regarding Fluor's conduct, and this could take a toll.
All these harms will be compounded if active-duty service-
members can bring state tort suits like petitioner's. Having
active-duty servicemembers depose their commanders and
question military judgments could interfere with military
discipline and the proper chain of command.
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 quota-
tion 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 battlefeld needs as dictated by mili-
tary command against what a judge or jury might say years
after the fact.” Brief for Retired Senior Military Offcers
as Amici Curiae 22. Putting contractors in this conficted
position could lead to adversarial relationships with mili-
tary 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 fled in federal court in South
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Carolina, so that State's choice-of-law rules govern. See
Kl
axon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941).
Under those rules, “the substantive law governing a tort ac-
tion is determined by the lex loci delicti, the law of the state
in which the injury occurred.” Boone v. Boone, 345 S. 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
5
would call for a trial under Afghan law
as it existed in 2016.
6
Just identifying the relevant princi-
ples in that body of law would be a challenge.
7
And if the
5
The result might be the same under choice of law rules like the
government-interest test or the test in the Restatement (Second) of Con-
fict of Laws § 145 (1969). See, e. g., M. M. v. Islamic Republic of Iran,
708 F. 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”).
6
It is possible that a South Carolina court would not apply the lex loci
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 193.
But determining whether Afghan law contravenes South Carolina's public
policy would seem to require the identifcation 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 involving federal
contractor); Haskins v. Midwest Air Traffc Control Serv., Inc., 2016 WL
3653531, *5 (ND Ill., July 8, 2016) (plane crash in Afghanistan involving
American passenger). In fact, Fluor itself has had to litigate 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).
7
Despite its length (2416 Articles), the 1977 Afghan Civil Code gives
only cursory treatment to standard tort issues and omits discussion of
some key topics altogether. The Code states simply that “[i]f harm is
inficted 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

62 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
application of state law would impermissibly intrude in an
exclusively
federal domain, then adjudicating this case under
foreign law would be even worse.
III
Despite this suit's intrusion into a domain of exclusive fed-
eral authority, petitioner contends that his suit is not pre-
empted for two main reasons: (1) the Federal Tort Claims
Act's retention of sovereign immunity for “combatant activi-
ties . . . during time of war” does not apply here, 28 U. S. C.
§ 2680( j), and (2) our decision in Boyle does not dictate pre-
emption. Neither argument provides a ground for reject-
ing preemption.
A
The Federal Tort Claims Act (FTCA) does not help peti-
tioner because that law simply does not speak to the question
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 excep-
tions covers claims “arising out of the combatant activities
of the military or naval forces, or the Coast Guard, during
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
2014). The Code similarly treats causation and joint and several liability
in one-sentence provisions. Arts. 783, 789. If these bare-bones provi-
sions supply insuffcient guidance for courts, then the problems multiply.
Under Afghanistan's now apparently defunct 2004 Constitution, when no
specifc provision of law on a question could be found, courts were in-
structed 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 Af-
ghan 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”).
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Alito, J., dissenting
policies on a military base in theater. Indeed, that provision
does
not even give rise to an inference of non-preemption.
Since the FTCA concerns the Government's sovereign im-
munity, and since government contractors enjoy no such im-
munity, that Act would be a strange place to include a provi-
sion shielding such contractors from state-law liability. If
anything, § 2680( j) lends support to preemption because it is
based on the same strong federal interest that provides the
basis for preemption here: the exclusive authority of the
President and Congress to decide how combat-related activi-
ties should be conducted.
B
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 inter-
est, namely, the Government's interest in “the performance
of federal procurement contracts.” 487 U. S., at 506. When
preemption is sought on the ground that the application of
state law would impermissibly undermine that interest,
Boyle provides a test for determining whether application of
the state law in question would actually have that effect.
It asks whether “(1) the United States approved reasonably
precise specifcations; (2) the equipment conformed to those
specifcations; and (3) the supplier warned the United States
about the dangers in the use of the equipment 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 refect a sig-
nifcant policy judgment by Government offcials.” Id., at
513. Therefore, imposing liability on a contractor for an al-
legedly dangerous feature of the design the Government re-
quired would pressure contractors to deviate from that de-
sign, and that would undermine the Government's interest
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64 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
in “the performance of federal procurement contracts” in ac-
cordance
with its wishes. Id., at 506.
The preemption claim in this case rests on a different
basis. 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 fgure in Boyle's preemption
analysis. As the Court notes, the claim in Boyle did not
involve combatant activities. Ante, at 38–39. It concerned
a helicopter crash off the coast of Virginia. Although the
plaintiff was a Marine and the helicopter was designed for
military use, the Court treated the contract under which the
helicopter was procured like any other government con-
tract. 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
U. S., at 504. But its relevance for present purposes stops
there.
C
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 45. 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 Afghanistan
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 pre-
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65
Alito, J., dissenting
cisely because of “constitutional considerations” that peti-
ti
oner'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 afeld. The frst, 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 regulation
of milk prices for a stateside military base presents a far
lower risk of intrusion into federal war powers than state
regulation of defense contractors' activities in a foreign
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.
8
Little involved the seizure of a vessel in the Ca-
ribbean 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 Mex-
ico during the Mexican-American War. 13 How., at 128. It,
too, appears to have applied general federal common law.
See id., at 135–136.
9
Thus, neither case addresses whether
8
Additionally, both cases arose when the United States had plenary sov-
ereign immunity from tort suits. During that period, wronged parties
often obtained judgments against the offcers who engaged in the con-
tested conduct (and did not enjoy qualifed immunity), and Congress often
passed private bills indemnifying the offcers. 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
“refected the Court's perception that Congress bore responsibility for in-
demnifying Captain Little”).
9
The majority says that the “source of the tort principles” in Little and
Mitchell is irrelevant because all tort claims would be preempted under
Fluor's rule. Ante, at 46, n. 3. But I do not contend that the Constitu-
tion bars all tort claims against Fluor, regardless of their source. Be-
cause the Constitution makes war an exclusively federal domain, federal
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66 HENCEL
Y v. FLUOR CORP.
Alito, J., dissenting
the Constitution preempts the application of state tort law
to
those carrying out federal wartime policies on a foreign
military base.
***
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.
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
dichotomy because they applied federal common law, not state law. The
question of what, if any, federal tort claims Hencely could bring against
Fluor is not presented here.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. Other revisions may include adjustments to formatting, cap-
tions, citation form, and any errant punctuation. The following additional
edits were made:
None