Oral Argument Recap: Fuld v. PLO
April 3, 2025
On Tuesday, the Supreme Court heard oral argument in Fuld v. Palestine Liberation Organization. The question presented is whether the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) violates the Fifth Amendment’s Due Process Clause by declaring that the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) have consented to personal jurisdiction for terrorism-related lawsuits by engaging in specified conduct. (More background on the case is available in prior posts.) Here are what I see as the five main takeaways from the two-hour argument:
The Petitioners Will Win
None of the Justices showed any interest in defending the Second Circuit’s ruling that the PSJVTA is unconstitutional. Indeed, the Second Circuit’s decision got almost no airtime. And Mitchell Berger (Squire Patton Boggs), arguing for the PLO and PA, fielded noticeably fewer questions than did Kent Yalowitz (Arnold & Porter), arguing for the plaintiff-petitioners, and Edwin Kneedler (Deputy U.S. Solicitor General), defending the PSJVTA’s constitutionality. The Justices were hunting for a way to uphold the PSJVTA and keep the plaintiffs’ suit alive; the question was just how best to do it.
A Focus on the Fifth Amendment
If the PSJVTA is upheld, it is likely that the Court will invoke the difference between the Fifth and the Fourteenth Amendment’s Due Process Clauses to do so. The possible difference between the two amendments dominated the oral argument. It was Justice Thomas’s first question right out of the gate. Justice Gorsuch was laser-focused on an originalist understanding of personal jurisdiction under the Fifth Amendment, repeatedly drawing advocates back to the scholarship of Professor Stephen Sachs. Justice Barrett, whose dissent in Mallory v. Norfolk Southern Railway (2023) hewed closely to the approach of International Shoe Co. v. Washington (1945), nonetheless voiced concern that relying in this case on International Shoe’s line of precedent (decided under the Fourteenth Amendment) might implicitly overrule earlier cases suggesting that the Fifth Amendment is different. Even Justice Sotomayor asked respondents to “step away from the Fourteenth Amendment” because she agreed with them that the statute likely “fails every test we have applied under the Fourteenth Amendment.” As she put it, “the argument here … [is] centered on the Fifth Amendment.”
But Doubt Over What the Fifth Amendment Test Might Be
If the Justices largely agreed that saving the PSJVTA requires analysis under the Fifth Agreement and that such an analysis differs materially from the analysis under the Fourteenth Amendment, they struggled to identify what this Fifth Amendment analysis might look like.
Chief Justice Roberts’s only questions were directed to Deputy Solicitor General Kneedler: beyond the facts of this case, the Chief Justice wanted to know, how should we articulate the general test for personal jurisdiction under the Fifth Amendment? Kneedler proposed that for an implied consent statute like the PSJVTA, the test is that the “jurisdiction-triggering” conduct is knowing and voluntary and that “the resulting submission to jurisdiction is fair and not exorbitant,” meaning that there is a nexus between the United States and the jurisdiction-triggering conduct. Chief Justice Roberts was not impressed: “Well, it sounds like it’s a grab bag. I mean, … it’s got to be fair. It can’t be exorbitant. There has to be a nexus. I mean, that’s a bunch of words.”
Nonetheless, the petitioners primarily argued for a similar approach. As their counsel put it, there must be fair notice and opportunity to be heard, and the assertion of jurisdiction cannot be arbitrary, meaning that the statute must reflect a legitimate government interest. Justices Sotomayor and Jackson seemed interested in translating that “non-arbitrariness” requirement into a fairness check akin to the one used under International Shoe. Justice Kagan was curious whether there was daylight between the petitioners’ “non-arbitrariness” test and the concept of fundamental fairness. Mr. Yalowitz’s response was not particularly enlightening:
Yalowitz: “I find fundamental fairness to be squishier.”
Kagan: “Squishier?”
Yalowitz: “Yeah.”
In contrast, Justice Gorsuch made clear his impatience with any approach that sounds like substantive due process. He kept returning to the view of the Fifth Amendment Due Process Clause advanced by Professor Sachs—namely, that the Fifth Amendment poses no limit on Congress’s ability to legislate personal jurisdiction as long as there is notice of such laws and an opportunity to be heard. As Justice Gorsuch put it, “One man’s arbitrariness is another man’s brilliance, I mean, and no – no member of Congress who votes for something and the President signs thinks that what they’re doing is arbitrary.” His questions strongly suggested that he sees no role for the courts to tell Congress what it can or cannot do when it comes to personal jurisdiction.
Justices Thomas, Alito, and Barrett seem similarly interested in Professor Sachs’s originalist theory of the Fifth Amendment. The petitioners were happy to support that approach (as long as it could garner five votes). But the United States was careful not to endorse the broadest application of that theory, which would leave no check on congressional power. (This avoidance prompted Justice Barrett to quip, “So, even if [this theory is] true or even if it’s the accurate interpretation of the Fifth Amendment, you’re saying, shhh?”). The respondents pushed back more forcefully, arguing that when it comes to constitutionally protected rights, the courts must have some role in checking the power of the political branches.
Separate from the advisability of this constrained understanding of the Fifth Amendment’s Due Process Clause is the accuracy of the originalist case for it. As Justice Jackson asked, “Is that amicus brief and Professor Sachs’s opinion the basis for your certainty about what happened at the founding? I mean, is there other evidence? … [D]id you go to the original sources or are you relying on [those amicus briefs] for your view as to what the ratification state of affairs was?” Justice Sotomayor similarly questioned the persuasiveness of that scholarship: even if Justice Story and other commentators made these broad statements about congressional power, it is notable that Congress “for over a hundred years, pretty much stayed within [what we would today identify as] International Shoe’s limitations.” The respondents (not surprisingly) agreed: in the words of their counsel, the originalist theory is primarily based on “some Justice riding circuit opining in dictum what he thinks may be/might be the rule in some case where the question wasn’t presented.”
In sum, several Justices seem ready to embrace an understanding of the Fifth Amendment Due Process Clause that would allow Congress unfettered authority to legislate personal jurisdiction. But neither the United States nor, really, the petitioners were willing to embrace the full extent of that argument, particularly in a case like this one that has an arguable nexus to the United States and may not be fundamentally unfair. On the other hand, invoking limiting principles like “nexus” and “fairness” and “non-arbitrariness” would basically be a reversion to International Shoe’s general standard, leading some Justices to balk at the mushiness of the resulting word soup.
Finally, all this focus on the Fifth Amendment’s Due Process Clause being different from the Fourteenth Amendment’s Due Process Clause raises the prospect that a ruling here could disrupt substantive due process jurisprudence more generally. Would embracing Professor Sachs’s originalist theory of Fifth Amendment due process cast doubt on whether other substantive due process rights guaranteed (at least for now) under the Fourteenth Amendment similarly apply to citizens living outside the reach of the Fourteenth Amendment (such as in the District of Columbia)? Justice Barrett seemed to dismiss this concern, confident that personal jurisdiction can be singled out for different treatment. But personal jurisdiction under the Fourteenth Amendment is substantive due process—part and parcel of Pennoyer v. Neff (1878) author Justice Stephen Field’s interest in protecting private property rights through the new Fourteenth Amendment.
National Security Enters the Chat
Justice Kavanaugh suggested a different way out: These are delicate foreign relations issues on which Congress and the Executive seem to be in agreement, warranting Youngstown category I deference. Justice Alito similarly indicated an interest in deferring to the political branches’ decision to subject the PLO and PA to civil liability in U.S. courts.
As Deputy Solicitor General Kneedler argued on behalf of the United States, however, not all Fifth Amendment personal jurisdiction cases will implicate such high-stakes political concerns. Would we want a similarly unlimited test to apply in mundane commercial cases?
The Missing Elephant in the Room: Mallory and Consent Jurisdiction
In all this discussion of the Fifth Amendment and Justice Story, where is consent jurisdiction and the questions left open two Terms ago by Mallory? Somewhat surprisingly, no one but the respondents seemed interested in talking about the PSJVTA as an implied consent statute.
The Justices’ questions strongly suggested that if the Court wants to uphold the PSJVTA, they don’t think the Fourteenth Amendment jurisprudence will get the job done. And if they have to rely on the Fifth Amendment, they seem stuck between two options: either saying Congress’s power is basically unlimited or else using squishy language that might not be an improvement over International Shoe. Several of the Justices seemed dissatisfied with either approach.
At the end of the argument, respondents did suggest another way forward: Mallory disclaimed the relevance of interstate federalism as a limit on implied consent statutes, meaning that consent as a basis for personal jurisdiction can be analyzed the same under the Fourteenth and Fifth Amendments. All that is required for fundamental fairness in the context of consent statutes is conduct that actually indicates submission to the forum, for example because the conduct has a territorial connection. Implied consent based on martyr payments made and received outside the United States might not suffice, but the PSJVTA’s other jurisdictional trigger—certain activity within the United States—probably would. The constitutionality of the PSJVTA could be upheld on that basis. But the lower courts have yet to determine whether that requisite activity within the United States in fact occurred. A remand would thus be required to develop the factual record. No one seemed particularly interested in this path, however.
Conclusion
My best prediction is that the Court will uphold the constitutionality of the PSJVTA, perhaps even unanimously, but that there will be a splintering of opinions and no consensus as to why, leaving jurisdictional doctrine even more uncertain than it was before. But given the argument’s focus on what I see as an underdeveloped originalist theory of the Fifth Amendment, perhaps that is a preferable outcome to the alternative.