The far-reaching consequences of the Supreme Court's latest terrorism ruling have become clearer following the decision in Hencely v. Fluor Corporation, handed down on Wednesday. The case stems from a tragic incident during a 2016 Veterans Day celebration at Bagram Airfield, a U.S. military base in Afghanistan. A suicide bomber named Ahmad Nayeb detonated an explosion that killed five individuals and wounded 17 others. Among the injured was Army Specialist Winston Hencely, who confronted the bomber and attempted to question him, prompting Nayeb to set off his suicide vest. The Army believes Hencely's actions likely prevented a far greater tragedy by stopping Nayeb from triggering the explosion in a more crowded area. Hencely now suffers permanent disabilities due to skull and brain injuries sustained in the bombing.
Legal Issue: Preemption
The central legal question in Hencely involves preemption, a constitutional principle that federal law supersedes state law when they conflict. After the attack, Hencely sued Fluor Corporation, a military contractor that employed Nayeb, alleging that Fluor violated South Carolina law by failing to properly supervise him. Fluor operates two subsidiaries in South Carolina. In a 6-3 decision, the justices ruled that Hencely's lawsuit is not preempted and can proceed to determine Fluor's liability. The Court's three Democratic appointees sided with Hencely, while the Republican justices split evenly, with Justice Clarence Thomas writing the majority opinion joined by Justices Neil Gorsuch and Amy Coney Barrett. Justice Samuel Alito authored the dissent, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.
Preemption and Political Divisions
The question of when state law is preempted by federal law does not always align with typical political divisions. An expansive view of preemption can sometimes produce results favored by liberals, such as in Wyeth v. Levine (2009), where Thomas took a narrow view of preemption and ruled against a pharmaceutical company. Conversely, immigration advocates often argue that state laws targeting immigrants are preempted. Hencely reveals each justice's approach to preemption: Thomas has long questioned broad preemption precedents, and Gorsuch and Barrett appear to share his skepticism. The other three Republicans seem more sympathetic to arguments favoring exclusive federal control.
Specific Dispute in Hencely
The Constitution establishes federal law as supreme, but determining preemption is complex. Easy cases involve express preemption, where Congress explicitly invalidates state laws, or impossibility preemption, where compliance with both state and federal law is impossible. Harder cases, like Hines v. Davidowitz (1941), involve state laws that undermine federal policy without direct conflict. In Hencely, the dispute resembled Hines. Nayeb worked at Bagram under the military's Afghan First program, which aimed to stimulate the local economy and stabilize the Afghan government by hiring Afghans. Alito argued that allowing lawsuits against contractors complying with this policy would undermine it. Thomas countered that Fluor allegedly failed to follow federal directives to supervise and escort Nayeb, who was a red-badge holder requiring close monitoring. An Army report found that Fluor's lax supervision allowed Nayeb to access tools for making a bomb and failed to escort him off base. Thomas concluded that preemption is justified only when the government directs a contractor to do the very thing forbidden by state law, and here, the lawsuit targeted inadequate supervision, not hiring.
Implications of Thomas's Opinion
Thomas's opinion aligns with his previous stance in Wyeth, where he criticized purposes-and-objectives preemption jurisprudence that invalidates state laws based on perceived conflicts with broad federal policies not found in statutory text. The fact that Gorsuch and Barrett joined him suggests they share his skepticism. This is good news for consumers and consumer rights lawyers, as manufacturers of potentially dangerous products often claim preemption against state lawsuits. Hencely indicates that at least three Republican justices will not support such claims without clear conflict. However, immigrants and advocates may view the decision with concern, as it could lead to overruling Hines, a key precedent limiting state restrictions on immigrants. Preemption does not consistently favor left or right, but Hencely suggests the current Court will be more cautious about preemption claims generally.
