SI Proposal: Clarify Contractor Accountability Within Military Orders

Only the Constitution or a valid federal law can displace state law. That is the Supremacy Clause rule. The supplied syllabus applies it to wartime contractor suits and rejects blanket preemption. The Court decided whether former Army specialist Winston T. Hencely could bring South Carolina negligence claims against Fluor Corporation for the 2016 suicide-bomb attack at Bagram Airfield. The supplied syllabus states the holding: the Fourth Circuit erred in finding the claims preempted where the Federal Government neither ordered nor authorized Fluor's challenged conduct. The case was vacated and remanded for further proceedings. The strongest originalist and textualist reading starts from the Supremacy Clause and the text of federal statutes. Only the Constitution or a valid federal law can displace state law, and the Court noted no provision expressly preempts this suit. The Federal Tort Claims Act exception cited by the lower court protects the Government itself, not contractors, and Boyle v. United Technologies Corp. protects only a contractor sued for doing what the Government directed. Where a contractor could follow both military orders and state care duties, both should apply. The strongest living-constitution and progressive reading starts from the changing role of private contractors in modern conflict and the need for workable accountability. On this view, blanket immunity for wartime contractors would leave injured troops without remedy and reduce safety incentives on large overseas bases. Courts should read preemption narrowly, preserve state tort law as a backstop against negligent supervision and retention, and let legislatures build clear procedures rather than close the courthouse door. VFA proposes Congress could work within the decision by clarifying the rule in statute. The bill would state that state-law negligence claims against contractors operating on military bases are not preempted when the challenged conduct was outside military authorization. It would require clear written supervision rules, prompt incident reports to the base commander, and yearly public summaries with privacy safeguards. Both readings can accept this path because it honors military control while keeping ordinary care duties where orders were disobeyed. The strongest objection is that lawsuits over wartime base events may second-guess commanders and raise costs for defense work. The answer is in the narrow design: claims proceed only when the contractor departed from instructions, and courts need not judge the wisdom of military orders themselves. A capped budget, Inspector General oversight, and a five-year sunset would keep the measure limited, subject to review, and consistent with war powers, federalism, and due process.