The facts underlying Hencely v. Fluor Corporation, a case the Supreme Court handed down on Wednesday, are horrible and tragic.

During a 2016 Veterans Day celebration on Bagram Airfield, a US military base in Afghanistan, a suicide bomber named Ahmad Nayeb detonated an explosion that killed five people and wounded 17 more. One of the wounded was Army Specialist Winston Hencely, who confronted the bomber and attempted to question him — causing Nayeb to set off his suicide vest shortly after Hencely approached him.

The Army believes that Hencely’s actions “likely prevent[ed] a far greater tragedy,” because the soldier stopped Nayeb from triggering the explosion in a location where it could have killed more people. Hencely is now permanently disabled from skull and brain injuries suffered during the bombing.

The legal issue in Hencely involves “preemption,” a constitutional principle dictating that, when federal law and state law are at odds with each other, the federal law prevails and will often displace the state law entirely. After the bombing, Hencely sued Fluor Corporation, a military contractor that employed Nayeb, claiming that Fluor violated South Carolina law by failing to adequately supervise Nayeb. Fluor has two subsidiaries in South Carolina.

In Hencely, six justices concluded that the wounded soldier’s lawsuit is not preempted, and thus does not need to be dismissed before any court determines if Fluor should be liable. While all three of the Court’s Democrats sided with Hencely, the case cleaved the Republican justices straight down the middle (and not in the way that the Republican justices ordinarily split when they split down the middle). Justice Clarence Thomas wrote the majority opinion, which was also joined by Republican Justices Neil Gorsuch and Amy Coney Barrett. Justice Samuel Alito wrote the dissent, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

The question of when a particular state law is preempted by federal law does not always divide the justices along familiar political lines. An expansive approach to preemption sometimes yields results that liberals will celebrate, and other times, benefits right-leaning policymakers. In Wyeth v. Levine (2009), for example, Thomas also took a narrow view of when federal laws should be read to preempt a state law, and thus ruled against a pharmaceutical company whose drug caused a woman to lose her arm. But advocates for immigrants also frequently argue that state laws targeting their clients are preempted by federal law.

So the Hencely case is significant because it reveals how each of the current justices tends to view preemption cases. Thomas has long questioned many of the Court’s previous cases, taking a broad view of preemption, and it now appears that Gorsuch and Barrett share some of his skepticism. The other three Republicans, by contrast, appear much more sympathetic to arguments that the federal government should have exclusive control over some areas of US policy.

So what was the specific legal dispute in Hencely?

The Constitution provides that federal law “shall be the supreme Law of the Land,” and state law must yield to it. But determining whether a specific state law is preempted by a federal law is not always a simple task.

The easiest cases involve “express” presumption, when Congress enacts a law that explicitly invalidates particular kinds of state laws. Imagine, for example, that South Carolina had a law requiring all T-shirts to be made with 100% yellow fabric. If Congress passed a law saying that “no state may regulate the color of T-shirts,” that federal law would expressly preempt South Carolina’s yellow shirt law.

Other relatively easy cases involve “impossibility” preemption, which occurs when it is impossible for someone to simultaneously comply with a state law and a different federal law. If Congress passed a law requiring all T-shirts to be made with 100% red fabric, for example, the hypothetical yellow shirt law would also be preempted because a shirt cannot be entirely red and entirely yellow at the same time.

The hardest preemption cases, meanwhile, involve state laws that may undercut a federal policy or undermine the goals of a federal law, but that do not present such a clear conflict with a federal law that it is impossible to comply with both laws. In Hines v. Davidowitz (1941), for example, the Supreme Court struck down a Pennsylvania law requiring noncitizens to register with the state, even though no federal law explicitly prohibited Pennsylvania from enacting such a registration regime.

The Court reasoned that Congress had passed “a broad and comprehensive plan describing the terms and conditions upon which aliens may enter this country, how they may acquire citizenship, and the manner in which they may be deported,” and that this plan fully established the rights and obligations of noncitizens within the United States. If Pennsylvania were allowed to supplement this federal plan with additional regulation, that would stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Hencely involved a dispute that more closely resembles Hines than it does the more clear cut hypotheticals involving yellow T-shirts. On the one hand, Nayeb had a job at Bagram because of a US military program called “Afghan First,” which, as Thomas explains in his opinion, “sought to stimulate the local economy and stabilize the Afghan Government by requiring contractors to hire Afghans ‘to the maximum extent possible.’”

Thus, as Alito wrote in dissent, the military had apparently decided that these “long-term foreign policy and defense objectives” justified the risk that an Afghan national might find work on a US military facility, and then use their limited access to that facility in order to commit a terrorist attack. 

In other words, much as the Pennsylvania immigrant registration law undercut the federal government’s broader goals of providing a certain level of civil liberties to noncitizens, Alito argued that allowing Hencely to sue a military contractor who complied with the federal government’s policy of giving jobs to Afghan nationals would undermine that policy.

Thomas, meanwhile, concluded that, while Fluor may have hired Nayeb in order to comply with a federal directive, it allegedly did not comply with all of its obligations to the federal government. Though Nayeb was allowed on the base, he was a “red-badge holder” and thus was supposed to be closely monitored and often escorted through the base by Fluor. 

An Army report, Thomas writes, concluded that “Fluor’s lax supervision … allowed Nayeb to check out tools that he did not need for his job and that he used to make the bomb inside Bagram.” It also found that Fluor failed to escort Nayeb off the base at the end of his shift.

Ultimately, Thomas disagrees with Alito that a state law can be preempted merely because it undercuts the military’s Afghan First policy in some oblique way. In Thomas’s view, preemption is only justified when “the government has directed a contractor to do the very thing” that is forbidden by state law. Hencely did not sue Fluor for hiring Nayeb; he sued Fluor for failing to adequately supervise Nayeb, and the federal government did, indeed, direct Fluor to monitor and escort red-badge-holding Afghan nationals.

Thomas’s opinion in Hencely is consistent with his behavior in some previous preemption cases

Thomas’s opinion in Hencely won’t surprise anyone familiar with his opinion concurring in the judgment in Wyeth, the case ruling in favor of the woman who lost her arm due to a drug’s side effect. In that case, Thomas wrote that “I have become increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence,” which allows courts to invalidate “state laws based on perceived conflicts with broad federal policy objectives … that are not embodied within the text of federal law.”

Justice Thomas, in other words, appears to reject cases like Hines, which hold that federal law can sometimes displace state laws even when there isn’t an unavoidable conflict between the two laws. The fact that Gorsuch and Barrett joined his opinion in Hencely suggests that these two relatively new justices, who weren’t on the Court when Wyeth was decided, may share Thomas’s views.

As a practical matter, that’s good news for consumers and for consumer rights lawyers. Cases like Wyeth, where the manufacturer of a potentially dangerous product claims that state lawsuits arising out of that product are preempted by federal law, are fairly common. Hencely suggests that at least three of the Court’s Republicans will not support these preemption claims, at least when federal law does not clearly conflict with a state law.

At the same time, immigrants and immigration advocates will likely look upon Hencely with trepidation, as it suggests that this three-justice bloc may also seek to overrule Hines, a seminal precedent establishing that states typically may not impose restrictions on immigrants that cannot be found in federal law. 

Preemption is not an issue that always favors the left or the right. Sometimes a state law benefits traditionally liberal causes, and sometimes it tries to advance a more right-wing goal. But Hencely suggests that the current Court will be more cautious about preemption claims generally, regardless of who benefits from that decision.

The 25th Amendment is having a moment.

According to a tally by NBC News, over 70 Democratic lawmakers called for President Donald Trump’s Cabinet to invoke an obscure constitutional provision that would allow them to temporarily prevent Trump from acting as president, after Trump threatened to wipe out “a whole civilization” in Iran. (Trump has backed away from that threat, at least for now.)

Notably, their call for a 25th Amendment solution was echoed by some voices on the far right, including former US Rep. Majorie Taylor Greene, radio host Alex Jones, and MAGA influencer Candace Owens.

It’s not the first time the amendment has come up. There’s been a regular background hum of Trump critics demanding its invocation throughout both his terms in office, which peaked in the days after January 6, 2021, with real conversations in his Cabinet and in congressional leadership about the process.

As a practical matter, Trump is not going anywhere, even if he didn’t command the near-universal loyalty within his party that he currently does. By international standards, it is extremely difficult to remove the president of the United States, and much harder than it is to remove the leaders of many of our peer democracies. And the 25th Amendment is not a viable shortcut around this problem, which is rooted in the fundamental structure of America’s government.

How the 25th Amendment actually works

Let’s cut to the chase: Trump is about as likely to be removed via the 25th Amendment as he is to be deposed by an army of unicorn-riding elves. 

While it is theoretically possible to remove Trump from office (or, at least, to strip him of his powers permanently) using the amendment, the removal process is too cumbersome, has too many failure points, and requires too much of a bipartisan consensus to be an effective method of removing a president who is merely bad at being president, rather than one who is literally incapable of performing their duties.

The 25th Amendment was enacted shortly after President John F. Kennedy’s assassination in 1963, and was intended to solve a different problem than the one the United States faces today — what if the president of the United States was still alive, but was physically or mentally incapacitated in a way that prevented him from exercising the powers of office?

Before the 25th Amendment was ratified, the Constitution provided that the vice president shall assume the powers of the presidency should the president show “Inability to discharge the Powers and Duties of the said Office.” But the original Constitution did not lay out a process to determine when the president was unable to exercise their duties. That created a risk that the president may be unfit for duty, but no one could be sure how to formally transfer power to the vice president.

The process laid out in the 25th Amendment is, to put it mildly, complicated. It allows the vice president to declare the president unfit for duty, provided that a majority of the president’s Cabinet officers consent. Once the vice president and a majority of the Cabinet inform Congress that “the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

But such a declaration is unlikely to amount to much if the president is still capable of clinging to power. The 25th Amendment also provides that the president may regain their authority merely by transmitting his own “written declaration that no inability exists” to congressional leaders. If that happens, the vice president and the Cabinet may force a congressional vote on whether the president should retain power, but if two-thirds of both houses of Congress do not agree that “the President is unable to discharge the powers and duties of his office,” then the president remains president. And they can’t stall the vote for too long: if Congress does nothing in 21 days, the president regains his executive powers. 

To even begin the process of removing Trump, in other words, a majority of Trump’s hand-picked Cabinet officials (plus Vice President JD Vance) would need to agree that he was unfit. Then, when Trump inevitably told Congress that he was resuming his duties, a supermajority of both the US House and the Senate — both of which are controlled by Trump’s Republican Party — would have to vote to install Vance as acting president. 

There really was some limited bipartisan chatter in the aftermath of the January 6 attack on the Capitol about removing Trump via the 25th Amendment. But Trump was a lame duck with only two weeks left in office then, meaning a Cabinet vote to strip him of his powers, combined with the 21-day time limit in Congress, could actually run out the clock on his presidency. 

That wouldn’t be a possibility this time. Indeed, because the 25th Amendment requires a two-thirds majority of both houses of Congress to remove Trump against his will, it is even more cumbersome than the impeachment process, which only requires a simple majority in the House and a two-thirds majority in the Senate. In 2021, the Senate couldn’t even secure a two-thirds majority to disqualify Trump from office while he was on trial for stirring up a violent attack against the Senate itself.

Other democracies make it much easier to remove an incompetent, unfit, or unpopular leader

The United States is unusual in that it elects its chief executive separately from its legislature. The US often elects a Congress that is controlled by a different party than the one that controls the White House. And the Congress has only limited power to remove a president — a power it has never successfully used in all of US history.

Compare this system to parliamentary democracies such as Canada, the United Kingdom, Germany, India, and Japan. In these systems, the people elect the members of the legislature, but the legislature chooses the official who will run the government. That official also can often be removed by a no-confidence vote in the legislature, frequently by a simple majority.

The founders saw this as a key feature: The executive branch and legislative branch were expected to each jockey for control in order to keep either from consolidating power. But as the late political scientist Juan Linz observed in 1990, presidential democracies such as the United States have proven inherently unstable, because the president and the legislature may deadlock on some crucial issue and both can simultaneously claim to have a popular mandate if such a deadlock occurs. The US system also locks in place a president who may have lost the confidence of both the Congress and the people, but who is nonetheless entitled to serve out their entire term.

One additional advantage of parliamentary democracy is that it allows a political party to remove an unfit or unpopular leader without triggering a political crisis. In 1990, for example, British Conservatives replaced unpopular Prime Minister Margaret Thatcher with John Major, and then retained power for seven more years under new leadership. A similar drama recently played out in Canada, where the governing Liberal Party replaced former Prime Minister Justin Trudeau with current PM Mark Carney — allowing Carney to lead the Liberals to another electoral victory in 2025.

In parliamentary systems, in other words, removal of a head of government isn’t an unheard-of event that humiliates the outgoing leader and places them in a class of one. It is a normal political tactic that allows the outgoing prime minister to leave office gracefully. That sort of system gives political parties an incentive to remove bad leaders.

Meanwhile, the United States is almost certainly stuck with Trump until his term expires in 2029 — even if Democrats win back both houses of Congress in the upcoming midterm elections, there is no plausible outcome where they win two-thirds of the seats in the Senate. Some new controversy would have to generate near-universal bipartisan demand for his removal, and it’s frankly not very pleasant to imagine what the world looks like in that scenario.