ARGUMENT ANALYSIS

Justices likely to allow damages suit against Palestinian Authority to go forward in U.S. courts

The Supreme Court on Tuesday appeared inclined to allow a lawsuit by U.S. victims of terrorist attacks in Israel against the Palestinian Authority and the Palestine Liberation Organization to go forward. A majority of the justices appeared skeptical of contentions by the PA and the PLO that a law allowing those victims to sue them in U.S. courts violates the Constitution’s guarantee of due process, even if there was not necessarily any agreement on the bench on exactly how courts should reach that conclusion.

During nearly two hours of debate, the justices often seemed to be grappling with broader questions as well, such as the extent to which courts should defer to national-security and foreign-policy judgments made by the other branches of government.   

At issue the case is the concept of personal jurisdiction – whether courts have the power to hear a case against certain defendants. In 2019, Congress passed the Promoting Security and Justice for Victims of Terrorism Act to give federal courts personal jurisdiction over cases by terrorism victims abroad. The law provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil case brought under the Anti-Terrorism Act, no matter when the act of international terrorism occurred, if they make payments to the families of terrorists who injured or killed a U.S. citizen or engaged in any activities within the United States. The law carves out a few narrow exceptions to the latter criterion – for example, for conduct relating to official United Nations business or meeting with government officials.

The U.S. Court of Appeals for the 2nd Circuit ruled that the dispute now before the court, brought by U.S. citizens injured in terrorist attacks in Israel, as well as the families of U.S. citizens killed in such attacks, could not move forward. It reasoned that the Palestine Liberation Organization, which is the official representative of the Palestinian people for foreign affairs, and the Palestinian Authority, the governing body for parts of the West Bank and Gaza Strip, had not agreed to have U.S. courts exercise jurisdiction over them. Nor, the court of appeals added, is the conduct that the PSJVTA targets the kind of conduct from which it would be fair to infer consent.

After the full court of appeals, over a dissent by four judges, declined to reconsider the decision, the victims and families came to the Supreme Court, which agreed last fall to weigh in.

Representing the victims and families, Kent Yalowitz urged the court to reverse the 2nd Circuit’s decision and revive his clients’ lawsuit. The PSJVTA provided the PLO and the PA with “fair warning,” he said. “Their conduct was knowing and voluntary.” And the law “reasonably advances legitimate government interests in the context of our federal system.”

Much of the oral argument focused on whether the due process clauses in the 14th Amendment (which applies only to the states) and the Fifth Amendment (which applies to the federal government) impose the same limits on jurisdiction – and, if they impose different limits, what those limits are for cases under the Fifth Amendment.

Yalowitz insisted that the two amendments have different limits. He reasoned that the 14th Amendment has to account for the interests of the states involved, so that one state does not infringe on the sovereignty of another by exercising jurisdiction over a defendant with minimal contacts with the state. But the “federal government doesn’t suffer from that limitation,” Yalowitz maintained, because its “powers are more expansive.”

Justice Sonia Sotomayor asked whether Yalowitz was “basically saying there is no due process protection under the Fifth Amendment even for U.S. citizens?” Could Congress say, she enquired, that a U.S. citizen could face trial in California for an act in New York?

Yalowitz insisted that he was not advocating for a rule that would eliminate a requirement that the exercise of jurisdiction be fair or reasonable, to protect “citizens and non-citizens alike from arbitrary federal action.” But the PSJVTA meets such a requirement, he maintained.

Justice Amy Coney Barrett asked whether, if the court were to interpret the Fifth Amendment as requiring that the defendant have some connection with the United States, the justices would effectively be overruling some of the 19th century cases interpreting the Fifth Amendment’s due process clause more to provide fewer protections.

Yalowitz acknowledged that at the very least, such an interpretation would be “in tension” with the older cases.

Deputy Solicitor General Edwin Kneedler told the justices that the PSJVTA is “an integral part of the foreign policy and national security policy of the political branches, including the securing of compensation for victims of terrorism.” Both kinds of conduct that can trigger the PSJVTA’s jurisdictional provision are, he said, “knowing and voluntary. They have a clear nexus to United States territory and to United States nationals and to the compelling U.S. interests in deterring terrorism.” Moreover, he added, the jurisdiction triggered by the law “is narrowly limited to terrorism cases.” “Congress’s judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference,” Kneedler concluded.

But Chief Justice John Roberts was unimpressed by the rule that the government was advancing. “It sounds like it’s a grab bag,” Roberts scoffed. It’s just “a bunch of words.”

Justice Neil Gorsuch saw what he characterized as a “tension” in the government’s position. On the one hand, as Kneedler agreed, under the Fifth Amendment the Supreme Court should play almost no role in “saying that what Congress has done is improper” with a law like the PSJVTA. But on the other hand, Gorsuch complained, the federal government wants a “safety valve” for the Supreme Court “to overrule” Congress in some cases.

Justice Elena Kagan suggested that the federal government might be reluctant to take a position “where anything Congress says goes” – that is, that there is essentially no role for courts to play in reviewing laws creating personal jurisdiction – because, among other things, there would be foreign-policy implications from “extremely broad” assertions of jurisdiction over foreign nationals, which could in turn encourage other countries to retaliate against U.S. nationals and companies.

Justice Ketanji Brown Jackson made a similar point, observing that without limits imposed by the Fifth Amendment on what Congress and the president can do, it could open a Pandora’s Box of other problems. She posited that the court could simply rule that the 14th and Fifth Amendments do not impose the same requirements and then send the case back to the lower courts.

But Barrett pushed back against any suggestion that such concerns might lead to the court issuing a narrower ruling. “[T]hese judgments about foreign policy considerations are for Congress and the president to make,” she emphasized.

Justice Samuel Alito chimed in, telling Kneedler that if the court looks at the 19th-century Fifth Amendment cases “you don’t want us to adopt that fully” and “and say ‘anything goes,’” then the court would have to “say what the test is. And then,” Alito asked, “what is the test?”

Justice Brett Kavanaugh clearly believed that the role of the courts in reviewing laws like the PSJVTA should be very limited. This is a case involving national security and foreign policy, he stressed, in which Congress and the president have already agreed on the proper role of the courts and acted pursuant to their constitutional powers to regulate the conduct of the PLO and the PA. Courts can still weigh in, he acknowledged, “to make sure they’re not crossing some other constitutional line,” but it’s normally “a very sensitive judgment” for courts to make, because Congress and the executive branch are generally going to be responsible for determining whether a law like the PSJVTA is fair.

Representing the PLO and the PA, Mitchell Berger told the justices that his clients’ conduct does not “support a presumption” that they consented to be sued in the United States under the PSJVTA. “Among other things,” he noted, when Congress passed the PSJVTA, two courts of appeals had already held that the same kinds of conduct that can now trigger jurisdiction under the PSJVTA “are constitutionally insufficient to support jurisdiction” over the PLO and the PA. “Continuing to engage in jurisdictionally insufficient conduct is the exact opposite of submitting to the court’s jurisdiction,” Berger argued.

Alito had a more practical question. “What exactly,” he queried, “is the unfairness in this case? Is it too burdensome to litigate this in New York, where the PA and the PLO,” at the U.N., engage in some activities?

Berger countered that the “unfairness” is the idea that the PA and the PLO can lose “a liberty interest for engaging in activity previously held constitutionally insufficient to support jurisdiction.”

Alito was dubious, telling Berger that his answer didn’t “sound like a personal jurisdiction argument.”

Berger then compared the situation of the PLO and the PA to a situation in which someone is “on a train where it’s sitting still and another train is moving backwards.” “That’s what Congress keeps doing with these statutes,” Berger told the justices, “which is we’re doing the same thing, and Congress keeps moving the context around us. And that’s what makes this statute as applied” to the PLO and the PA unconstitutional, Berger concluded.

But by the time the justices left the bench a few minutes later, it seemed likely that Congress would not need to tinker further with the law, and that this dispute – which Yalowitz described as “old enough to go to law school” – would go forward.  

This article was originally published at Howe on the Court.