Fuld v. Palestine Liberation Organization
Oral argument transcript · No. 24-20 · October Term 2024 · argued April 1, 2025 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Kent A. Yalowitz, New York, New York, for the petitioner
- Edwin S. Kneedler, Deputy Solicitor General, for the petitioner
- Mitchell R. Berger, Washington, D.C., for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 24-20, Fuld versus Palestine Liberation Organization, and the consolidated case. Mr. Yalowitz. ORAL ARGUMENT OF KENT A. YALOWITZ ON BEHALF OF THE PETITIONERS IN CASE 24-
Kent A. Yalowitz: Mr. Chief Justice, and may it please the Court: United States can take many actions in response to terror activity abroad by the PLO and the PA that kills American citizens. The government could, for example, prosecute them under our criminal laws, and they admit doing so would not violate any due process rights. They contend, however, that bringing a civil action crosses a red line, is unconstitutional under the Due Process Clause. That is incorrect. The federal government's sphere of sovereignty is sufficiently broad that it follows American citizens wherever in the world they might travel. The government could, for example, Official 1 simply ban terror pay -- pay -- payments to terrorists who have killed Americans and, concomitantly, could establish federal jurisdiction when that ban is violated. Here, the government took a smaller step of providing that if the PLO and the PA make post-enactment payments to terrorists or engage in post-enactment U.S. activities, that will be deemed a submission to the jurisdiction of federal courts in a narrow class of cases closely related to terrorism. The statute gave the defendants fair warning. Their conduct was knowing and voluntary. The statute reasonably advances legitimate government interests in the context of our federal system. The judgment of the court should be reversed. I welcome the Court's questions.
Justice Thomas: If we analyze this under the Fifth Amendment, what limitations would the Fifth Amendment provide --
Kent A. Yalowitz: So --
Justice Thomas: -- for personal jurisdiction?
Kent A. Yalowitz: So, first of all, the Official 1 Fifth Amendment requires fair notice and opportunity to be heard, which the defendants had. In addition, it -- protects persons against arbitrary government action. Here, the statute reasonably advances a legitimate government interest and within the context of the federal government's power.
Justice Thomas: How would that -- how would that differ from analyzing it under the Fourteenth Amendment?
Kent A. Yalowitz: Under -- under the Fourteenth Amendment, there is a territorial limitation on each state. The states, because they're bounded by each other within the context of our federal system, at least the Court has seeded horizontal federalism in -- in the Fourteenth Amendment, and so that limitation would exist.
Justice Thomas: Would -- when you say "horizontal limitation," what do you mean? And exactly how would the Fourteenth Amendment apply and how would that differ from the application of the Fifth Amendment?
Kent A. Yalowitz: So -- so we don't think Official 1 that the Fourteenth Amendment would apply at all here. However, if -- if the test were the same under the Fourteenth and the Fifth Amendments, the Court would have to look at the interests of the -- of the federal government at -- in the same way that it looks at the interests of the state governments because the state governments are bounded by limitations that the other faces -- that California can't -- can't infringe the sovereignty of Ohio, for example. The federal government doesn't suffer from that limitation. The federal government's powers are more expansive.
Justice Kagan: Well, there have been many courts that think that just, as in the Fourteenth Amendment, we look to see whether a defendant has minimum contacts with a particular state, these courts say so too we should look to see whether a defendant has minimum contacts with the United States when it comes to the Fifth Amendment.
Kent A. Yalowitz: Certainly, if Congress has not spoken, that would still be the rule under our proposed test. So, for example, in the Daimler case, there was no statute providing Official 1 for federal jurisdiction. Minimum contacts would apply because the plaintiffs would have to travel under the Fourteenth Amendment and the -- and the alien tort statute. But, where Congress has indicated the jurisdictional contacts that are relevant, due respect for Congress's judgment would provide for a more expansive view.
Justice Kagan: Well, why is that? If the minimum contacts test is a constitutional test, why does what Congress says in a particular statute modify that?
Kent A. Yalowitz: Be -- because the -- the minimum context -- minimum contacts test grows out of Fourteenth Amendment cases that -- that -- provided for limitations on state governments. Those limitations do not apply to the federal government. The Court has said that. Even in the Lochner era, when the Court was imposing those kinds of limitations, the Court said that -- that they -- those limitations don't apply when the federal government's powers are at issue. And I'm thinking of Burnet against United States -- Official 1 Bennett against United States, Burnet against Brooks, Cook against Tait.
Justice Barrett: Well, why --
Justice Sotomayor: Could I --
Justice Barrett: -- would it be relevant even if Congress hadn't spoken? I mean, if -- if they're really a feature of the interstate fed -- of interstate federalism and that's their role under the Fourteenth Amendment, why would we care about the minimum contacts analysis even in the absence of a statute where Congress tried to override it?
Kent A. Yalowitz: So the -- the Court has said in the Omni case that there has to be a statutory basis for jurisdiction, and if -- if there's no statutory basis for jurisdiction, then plaintiffs obtain jurisdiction by service under state law.
Justice Barrett: So it would be that the Fourteenth Amendment -- you're -- so it's not -- I guess maybe I misunderstood you. You're not saying that Congress would be overcoming some background principle that would otherwise be applicable to the jurisdiction of the United States. You're simply saying that Official 1 there would be no statute authorizing service of process --
Kent A. Yalowitz: Correct.
Justice Barrett: -- in that hypothetical?
Kent A. Yalowitz: Correct.
Justice Sotomayor: But, I -- if I'm -- can I unpackage your argument? You're basically saying there is no due process protection whatsoever under the Fifth Amendment, even for U.S. citizens, because I don't know why it makes a difference that this is a foreigner or a U.S. citizen. If there is, as you're advocating, no Fifth Amendment due process constraint on government, then Congress could, at its own whim, say you committed an act in New York, it violated a federal statute, get tried in California --
Kent A. Yalowitz: So --
Justice Sotomayor: -- get tried in Alaska, get tried in Hawaii. You might say political factors could constrain that. But haven't we said when we've analyzed the Fourteenth Amendment that there are Official 1 two components? One is the interstate interests of constraining the states from expanding their jurisdiction. But we've also said there's a second component, which is fairness, and it doesn't seem -- and we've not limited that to the interstate concerns. Why would we take it out of the Fifth Amendment altogether?
Kent A. Yalowitz: I -- I don't think you would. So I -- the rule that we're recommending would -- would -- would include a fairness or a reasonableness component that protects citizens and non-citizens alike from -- from arbitrary federal action. So, for example, if Congress passed a law that said, if you enter Paris, France, you're subject to the jurisdiction of the district court in Paris, Texas, that would be a arbitrary government action that would violate the due process rights of anybody being tried under that statute. However, when it comes to U.S. citizens, Congress and the courts are nationwide actors anyway, and so, for example --
Justice Sotomayor: Yeah, but if I Official 1 live in New York and I have never left New York, which is highly unlikely, but -- or I'm in Idaho -- in Idaho or somewhere else on a farm and never left it, and all I did was something there that happened to violate a federal law, I might have a problem with being haled to Hawaii or Alaska.
Kent A. Yalowitz: So -- so Congress has in some cases provided for nationwide jurisdiction. For example, the -- the U.S. Court of Federal Claims has -- is nationwide court. And -- and what the courts have done as a practical matter and sensitive to the -- the problems that individuals might have is the -- the courts will go to them or their -- or, by rule, the courts have said, you know, you can't be -- you can't -- your trial subpoena will only be a hundred miles from where you -- where you live. I -- I -- I -- I -- we're not advocating a rule that would eliminate a reasonableness --
Justice Sotomayor: Some sort of fairness requirement? Official
Kent A. Yalowitz: -- or fairness -- right.
Justice Sotomayor: You're just saying that, here, it's met?
Kent A. Yalowitz: Correct.
Justice Jackson: And, by "fairness," are you talking about principles of individual liberty? I mean, I'm sort of focusing on the Insurance Corp. of Ireland case and the idea that due process not only in the Fourteenth Amendment context has this notion of principles of federalism and interstate sovereignty but also the concern that Justice Sotomayor was picking up on about sort of a liberty interest in not being haled into a court far away. And I would think that would apply even in the international context.
Kent A. Yalowitz: Right. I -- I think that it -- I -- I agree with that. I think that there's not a -- there's not a liberty -- there's not a reasonableness problem in this case.
Justice Jackson: Right.
Kent A. Yalowitz: No -- nobody said, oh, it's -- it's too difficult for us to go from Official 1 65th Street down to --
Justice Jackson: No, I understand on the facts of this case. But -- but, to the extent that we are trying to assess what the Fifth Amendment requires in terms of personal jurisdiction, isn't there some idea, in addition to what the Fourteenth Amendment says about federalism, which you say doesn't apply in the Fifth Amendment context, is there still some notion of a personal jurisdiction limitation in the Fifth Amendment that is rooted in these principles of liberty?
Kent A. Yalowitz: I think so, yes. We -- we're not advocating for a -- for a complete removal of -- of any protections that an individual might have because it's traveling under the Fifth Amendment. What we're saying is the -- these territorial -- these very tight territorial limits that we've seen in the Fourteenth Amendment cases are the -- have no place in a -- in an analysis dealing with a federal statute.
Justice Alito: So what, again, do you think is the Fifth Amendment test?
Kent A. Yalowitz: Sure. So we would say Official 1 that the statute has to provide fair warning and that it has to reasonably advance a legitimate government interest in the context of our federal system.
Justice Gorsuch: What is that --
Justice Alito: What -- what's an -- an example of an illegitimate government interest that is unreasonably advanced?
Kent A. Yalowitz: Well, I think that my Paris, Texas, example --
Justice Alito: Wait. What is it again? What is your Paris, Texas, example again?
Kent A. Yalowitz: Sure. If you -- if you drive a car in Paris, France, then -- then you're subject to jurisdiction in district court in Paris, Texas. You know, they're both called "Paris," so, you know --
Justice Alito: I mean, do you think -- could -- could Congress say that if one American driving a car in France causes injury to another American causing -- driving a car in France, a suit may be brought in the United States?
Kent A. Yalowitz: Hmm. Well, it would Official 1 be -- that -- that would be a more difficult case than ours because it's hard to see what the federal reference is.
Justice Alito: No, I understand it's more difficult than yours.
Kent A. Yalowitz: Right.
Justice Alito: But I'm -- and maybe we don't have to say what the Fifth Amendment test is, but you've offered a Fifth Amendment test, so I'm trying to understand what it means.
Kent A. Yalowitz: It -- it would be difficult to see what the federal interest is in -- in regulating traffic laws or auto accidents abroad.
Justice Alito: Providing compensation for Americans who are tortiously injured, no matter where the tort occurs.
Kent A. Yalowitz: Sure. That -- that's -- and I think that -- I think that Congress has very broad foreign commerce powers, and, obviously, if Congress legislated to the limit, then that would be a -- that would be a interesting and difficult case.
Justice Gorsuch: Mr. Yalowitz, I'm -- I'm struggling to see any of this in your brief. Official 1 I -- I had understood your argument in your brief to say that under the Fifth Amendment, due process just requires service, a judge, and -- and an opportunity to be heard. And -- and now you're saying that there's some sort of balancing test or reasonableness requirement, and -- and -- and I -- I just didn't see that in your brief. I saw hints of that in the government's but not yours.
Kent A. Yalowitz: So -- you --
Justice Gorsuch: And -- and I'm -- I guess I'm asking this: Where does this come from then? If it -- if -- if -- if it's -- if I'm right that it's not in your brief, where -- where do these requirements come from?
Kent A. Yalowitz: So we see three threads of due process jurisprudence from the founding: service, as -- as you say; a court, as you say; and then there's a debate among scholars about whether due process included a substantive component.
Justice Gorsuch: Yeah. You say substantive due process precedents require no more than what I've just described. That's -- Official 1 that's page 22 of your brief.
Kent A. Yalowitz: Right. Right. So it --
Justice Gorsuch: Now I'm hearing slightly different version of your argument.
Kent A. Yalowitz: I -- I -- I would say that for those members of the Court who believe that there is a -- there is a --
Justice Gorsuch: I -- I'm -- I'm really not interested in -- in your -- your -- your attempt to assemble five votes. I'm interested in your views on what the law is.
Kent A. Yalowitz: Well, look, I -- I think that the -- that -- that -- a form of substantive due process has been a long tradition in the Court and in this country. And we're not arguing in this case that -- that arbitrary -- that an arbitrary statute would be constitutional. We think that -- we think that --
Justice Gorsuch: Well, 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. Official
Kent A. Yalowitz: I don't disagree with that. I -- I understand -- I understand the point you're making and I don't disagree with it.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Justice Alito?
Justice Sotomayor: But all of our -- all of our cases have spoken about -- under the Fourteenth Amendment, have put in a substantive due process component that's independent from the interstate question?
Kent A. Yalowitz: I -- I -- that is -- that is the Court's jurisprudence to date, correct.
Justice Sotomayor: So all of our cases have spoken about some form -- some version of fairness?
Kent A. Yalowitz: I -- right. And -- and particularly given the -- given the foreign policy and national security issues in this case, I would think that the --
Justice Sotomayor: No, I know you want to win, but that's -- but -- Official
Kent A. Yalowitz: No, but I would think --
Justice Sotomayor: -- but Justice Gorsuch was limiting -- saying that there is no -- that there is no substantive due process component to due process.
Kent A. Yalowitz: There are those who have that view. I -- we don't need that to win the case, particularly given the -- the deference that the Court -- the deferential standard of review that the Court engages in in a -- in a case involving national security and foreign policy.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: And -- and just so I understand your test, it's a non-arbitrariness test or it's a fundamental fairness test? What is it?
Kent A. Yalowitz: Non-arbitrary.
Justice Kagan: Would that -- is that different from a fundamental fairness test?
Kent A. Yalowitz: I -- I -- I -- I understand it better. I -- I find fundamental fairness to be squishier. Official
Justice Kagan: Squishier?
Kent A. Yalowitz: But -- yeah.
Justice Kagan: But we -- we -- we have used that squishy concept when it comes to the Fourteenth Amendment. Yes?
Kent A. Yalowitz: Indeed.
Justice Kagan: And -- and, when it comes to the Fourteenth Amendment, we've said that that, along with federalism concerns that don't really play here, but that also fairness concerns lead to a minimum contacts test. So why wouldn't we say the same thing here?
Kent A. Yalowitz: There's no reason not to say the same thing here. In this case, I think the -- the -- the concerns that Justice Sotomayor were talking about about, you know, having somebody without resources required to travel far and defend a case, those -- those don't exist in -- in this case. So, to the extent fundamental fairness is worried about unfairly burdening -- deeply unfairly burdening a defendant with the -- with the act of defending a case in a faraway locale, that is not a problem in this case. Official
Justice Kagan: Okay. I mean, I guess I am a little bit -- maybe I'm just not understanding the test, but I do -- do want to understand it, so let me press you a little bit more.
Kent A. Yalowitz: Sure.
Justice Kagan: It's not a problem in this case because you think that there are minimum contacts here, so even if there were a minimum contacts test, it would be satisfied here? Is that what you're saying?
Kent A. Yalowitz: No, that's -- that's not what we're saying. I -- well, let me back off of that a little bit. I -- I think that there -- that -- that one way to consider the minimum contacts test is to ask: Did the defendant direct its activities at a person within the protection of the sovereign? And, here, that test is certainly met. These defendants directed their activity at U.S. citizens who are within the protection of the United States.
Justice Kagan: I don't think that that would be usually the way that we would Official 1 explain what minimum contacts was looking for. We would usually talk in terms of, like, something like purposeful availment of the sovereign. So, here, that would be the entire United States, something like that.
Kent A. Yalowitz: Well, that -- that's true in a -- in a commercial case. But, here, we're talking about intentional torts, so the -- the analysis is a little bit different with an intentional tort because you're not really availing yourself of anything by -- by blowing up a -- a bomb.
Justice Kagan: But you're not taking issue of, like, with -- and, I guess, like Justice Gorsuch, I thought maybe something different from your brief, but, as I understand it, you're not taking issue with some sort of substantive component -- call it non-arbitrariness, call it fairness -- and you're not really taking issue with a minimum contacts test as long as it's kind of your version of minimum contacts?
Kent A. Yalowitz: That's fair. I -- I mean, you say "our version" --
Justice Kagan: Well, which is like if Official 1 you direct yourself to individuals with -- direct yourself to the sovereign entity, to individuals within the protection of the sovereign entity.
Kent A. Yalowitz: Right. Right. So the -- the -- the -- the sovereign sphere of the State of Nevada ends at the border. So, when -- when the -- the plaintiffs in Walden against Fiore traveled to Georgia, the -- they were not within the protection of Nevada anymore. It's different for federal -- for U.S. citizens. Wherever in the world you travel, the protection of the United States travels with you. And so the sovereign interests are different. So, when -- when you think of -- and some of the -- like the lower court in this case talked about they -- they didn't conduct any activities within the territory of the United States. That's the wrong way to think about the sovereignty of the United States. It's a sovereign-by-sovereign analysis. Sovereignty of the United States is much broader than the sovereignty of the State of Nevada. Official
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: So, if I've got it right, you want us to adopt the fundamental fairness language from our Fourteenth Amendment jurisprudence but give it different content in the Fifth Amendment. Is that fair?
Kent A. Yalowitz: I -- I don't think you have to adopt the fundamental fairness --
Justice Gorsuch: No. But, to get your five votes, that's -- you're willing to do that?
Kent A. Yalowitz: I would be willing --
Justice Gorsuch: Yeah.
Kent A. Yalowitz: -- to do that.
Justice Gorsuch: Okay. And if we did that --
Kent A. Yalowitz: I'm not going to lie.
Justice Gorsuch: Yeah. No, I -- (Laughter.)
Justice Gorsuch: -- I appreciate that. I'm -- I'm just trying to understand where the ball has bounced because it's bounced considerably from your brief. Official 1 And -- and this fundamental fairness test, do you have any historical pedigree for it and -- because it's not what we do in the Fourteenth Amendment. You've conceded that. So where did it come from --
Kent A. Yalowitz: So --
Justice Gorsuch: -- if I'm not just making it up?
Kent A. Yalowitz: -- the -- the -- the fundamental fairness test comes from International Shoe.
Justice Gorsuch: Okay. But that's the minimum contacts test that you were discussing with Justice Kagan, and you're saying no, it's going to apply very differently because it's -- it's -- it's -- it's -- it's the United States rather than a state. But you get into the -- you get into the same -- if it's fundamental fairness, you get into the same notice and opportunity to be heard, and you get into whether it's reasonable to be haled into Paris, Texas, and all those kinds of questions, don't you?
Kent A. Yalowitz: I -- I -- I think that if you adopt a -- a substantive due process Official 1 overlay, then that's where the law takes you. That's where the Court's precedents take you. If --
Justice Gorsuch: Do you have any basis in history for that?
Kent A. Yalowitz: No. I think that if you go back to what -- what the founders were doing, what this Court was doing in the early years, you don't have any --
Justice Gorsuch: I mean, back then, it was, yes, there's international law of nations.
Kent A. Yalowitz: Correct.
Justice Gorsuch: But Congress can defease that when it chooses. That was the law.
Kent A. Yalowitz: Correct. Very clearly, there was -- the -- there were jurisdictional limitations that the courts applied. They came from the general law of nations. They did not come from the Constitution.
Justice Gorsuch: But, you know, Justice Story said, if Congress says otherwise, we have to follow that.
Kent A. Yalowitz: Correct.
Justice Gorsuch: And then it becomes Official 1 a political question between international sovereigns.
Kent A. Yalowitz: And not just Justice Story. That's -- that is -- that --
Justice Gorsuch: Oh, sure.
Kent A. Yalowitz: I mean, I -- that's all --
Justice Gorsuch: He famously said it.
Kent A. Yalowitz: Right. It's all over the cases.
Justice Gorsuch: Yeah. Okay. Now let's say we have to apply our minimum contacts test because you've kind of taken us there a bit or at least close to it. I'm wondering -- I -- I understand, you know, there's (A) and (B) in the statute here.
Kent A. Yalowitz: Right.
Justice Gorsuch: Right? And (A) had to do with the payments abroad.
Kent A. Yalowitz: Right.
Justice Gorsuch: (B) had to do with maintaining an office here. I -- I -- I get the analogy that (B) is sort of like, a little bit like, what we would do in the Fourteenth Amendment context. You -- you maintain an Official 1 office in a particular jurisdiction. You're kind of opening yourself up to all manner of suits. But (A) is purely extraterritorial behavior. And I'm wondering: Is (B) enough for you in this case? Do you need anything more than (B) to bring this suit?
Kent A. Yalowitz: We -- we -- we don't need more than (B).
Justice Gorsuch: So --
Kent A. Yalowitz: But Congress gave us both.
Justice Gorsuch: I understand that. But, if -- if -- if the Court were to say -- and follow your lead today and say, well, you know, something like fundamental fairness and minimum contacts -- let's just say we did a straight-up Fourteenth Amendment analysis under our existing precedent and said (B) is a lot like having an office in a particular jurisdiction. Is that enough for you? Is that enough of a victory for you to pursue this suit?
Kent A. Yalowitz: We -- that would be a suboptimal solution --
Justice Gorsuch: Why? Official
Kent A. Yalowitz: -- for us because -- in candor, because the defendants have contested whether they have come within (B). They don't contest that they've come within (A).
Justice Gorsuch: Yeah.
Kent A. Yalowitz: And the -- the case is old enough to go to law school.
Justice Gorsuch: Well, they -- they say -- I -- I appreciate that. They -- as I understand it, they say with respect to (B) that they're doing -- that they're maintaining their offices extra-legally and that, therefore, should make a difference. If -- if this Court were to say that doesn't make a difference, that they're maintaining offices here through the grace of executive non-enforcement, that's enough to open them to jurisdiction, does that -- is that enough for this suit to proceed?
Kent A. Yalowitz: If -- if the Court were to apply the statute --
Justice Gorsuch: Yes.
Kent A. Yalowitz: -- and say the -- the -- the record is sufficient, if -- if this Court were to say the record is sufficient to Official 1 conclude that the activities set out in the record are within the text of the statute, which is unambiguous, then that's enough for us.
Justice Gorsuch: And so there would be no need to opine on what -- what limits are -- may or may not exist under the Fifth Amendment. We could simply say under our Fourteenth Amendment jurisprudence analogy it would -- it -- it's enough?
Kent A. Yalowitz: Correct.
Justice Gorsuch: And that would satisfy you?
Kent A. Yalowitz: I -- I -- if -- if the Court -- I -- I want to be very clear.
Justice Gorsuch: If we applied (B).
Kent A. Yalowitz: Right. I want to be very clear because --
Justice Gorsuch: I want to be clear too.
Kent A. Yalowitz: Yeah. We've -- we've had -- we've had a very long journey.
Justice Gorsuch: I do appreciate that.
Kent A. Yalowitz: And -- and -- and -- and a -- a -- a remand back to the panel for Official 1 further application of the injunction --
Justice Gorsuch: That's not what I'm --
Kent A. Yalowitz: Right.
Justice Gorsuch: That's not what I'm asking about.
Kent A. Yalowitz: -- would not be good for us.
Justice Gorsuch: But -- but, if we were to say (B) applies, you're good to go?
Kent A. Yalowitz: The -- the -- the Congress has made it an either/or.
Justice Gorsuch: Yeah.
Kent A. Yalowitz: Right.
Justice Gorsuch: Okay. Thank you.
Kent A. Yalowitz: All right.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I understood your argument in the brief to be arguing in the alternative --
Kent A. Yalowitz: That's correct.
Justice Kavanaugh: -- and to have a -- what I would say, a broader argument that -- that Congress -- there are no limits on Official 1 Congress, constitutional limits, other than service of process, et cetera, but there's no extra personal jurisdictional limits on Congress and then that you are arguing, even if that were rejected or even if that's not correct, we have a second argument that even under the Fourteenth Amendment precedents, you still win.
Kent A. Yalowitz: That's correct.
Justice Kavanaugh: Okay. And you're not giving up that first argument?
Kent A. Yalowitz: Absolutely not.
Justice Kavanaugh: Okay. Just making sure. Okay. And then what role does international law play? Any? Congress can override that, I --
Kent A. Yalowitz: Right.
Justice Kavanaugh: -- assume to be your position, but I just want to make sure I have that nailed down.
Kent A. Yalowitz: Right. So -- so, if Congress hasn't spoken or hasn't spoken clearly, then international law, would there be a presumption of compliance with international law? In -- in this case, there's no conflict Official 1 between what Congress has done and international law. But Congress is free to override international law.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So I want to describe one way to understand your argument, and I'd like you to tell me if -- if this is one way to understand your argument. So the Fifth Amendment obviously predates the Fourteenth Amendment by quite a bit, and we have a line of precedent -- Justice Story's cases being a prime example; we have others -- that understand the Fifth Amendment in the way that you propose for your broader argument. Then we have a distinct line of cases that pick up with International Shoe that interpret the Fourteenth Amendment differently. So we have competing lines of precedent. Is one way to understand your argument, like, let them just -- keep going separately and parallel, maybe International Shoe is wrong, maybe the Fourteenth Amendment Official 1 precedent is wrong, but don't disturb it, just stay the course with the Fifth Amendment precedent, and, if they're in tension, so be it?
Kent A. Yalowitz: Right. This is not the case to resolve how the Court should deal with Fourteenth Amendment cases.
Justice Barrett: Well, do we ever have to resolve that question on your view? Could we just let the Fifth Amendment and the Fourteenth Amendment precedent -- because, I mean, as in your view, would we be overruling some of these other cases, these Fifth -- not -- not the four -- don't -- don't shake your head too soon. If we treated the Fifth Amendment as having the minimum-contacts-type requirement, would we have to be -- if we treated the Fifth Amendment that way, would we be essentially overruling some of the 19th Century cases that take the Justice Story view?
Kent A. Yalowitz: Hmm. That's an interesting question. So I -- I think that -- I -- I think it wouldn't be overruling those cases to say that the -- the sovereign power of the government is sufficient to protect Americans Official 1 abroad. And the reason I think that is --
Justice Barrett: Well, that's not quite the question. I mean, I'm asking: If we say -- you know, Justice Kagan's questions were pointing out that we have treated the Fourteenth Amendment as containing a fairness component. And -- and I don't understand your argument to be in a full-throated way -- your broader argument in a full-throated way to say, yes, there's a fairness component that would lead us to embrace the minimum contacts analysis for purposes of the Fifth Amendment. Is that correct?
Kent A. Yalowitz: Correct.
Justice Barrett: Okay. So, if that is your argument, you are arguing for the Fifth Amendment to be interpreted differently from the Fourteenth, correct?
Kent A. Yalowitz: Correct.
Justice Barrett: If we say, no, no, no, no, no, the Fourteenth Amendment analysis, not the interstate federalism prong but the minimum contacts prong, the fairness prong, applies in the Fifth Amendment context, is it Official 1 your view that we would be overruling cases from the 19th Century in, say, the Justice Story line or at least rendering a decision that would be in some tension with those cases which took a different view of the Fifth Amendment?
Kent A. Yalowitz: I think that -- I think that a decision to that effect would be in tension with those cases, yes. The -- the -- at the time that -- at the time that the Due Process Clause was ratified, there was no excerpt --
Justice Barrett: Which Due Process Clause? The Fifth Amendment?
Kent A. Yalowitz: The 1791.
Justice Barrett: Okay.
Kent A. Yalowitz: The -- the one we're here about. There was no territorial limitation at all embedded in it in any way. And so -- and -- and, in fact, the founders quite frequently litigated cases arising outside of the United States. Famously, the Philadelphia Convention was packed with lawyers who had litigated those cases as judges.
Justice Barrett: So was Pennoyer Official 1 wrong to house a territorial understanding of -- you know, of personal jurisdiction within the Due Process Clause of the Fourteenth Amendment?
Kent A. Yalowitz: I -- I don't -- I -- I think that what Pennoyer -- the way I read Pennoyer and the way Professor Sachs reads Pennoyer is that Pennoyer was -- was constitutionalizing kind of a narrower view of due process, which is there has to be a judge with -- with jurisdiction, there has to be opportunity to be heard, the Murray's Lessee view of -- of due process. I -- I think the territorial restriction, the idea that there was a territorial horizontal federalism basis, I think that came into the Court's jurisprudence in the Lochner era.
Justice Barrett: Do you agree with Professor Sachs's amicus brief?
Kent A. Yalowitz: Oh, yeah.
Justice Barrett: Okay. Thank you very much.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yeah, I just want to Official 1 know: 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?
Kent A. Yalowitz: It -- it's confirmatory of our views. Judge Sofaer also put in an amicus brief that talked about Founding Era evidence.
Justice Jackson: But -- but did you -- did -- did you go to the original sources or are you relying on them for your view as to what the ratification state of affairs was?
Kent A. Yalowitz: As a matter of fact, I spent a lot of time with the original sources.
Justice Jackson: And did you -- you found no evidence? How -- how many sources? What -- what is the scope here of our understanding of what actually happened then?
Kent A. Yalowitz: I -- I -- I think -- I -- I -- it's -- it's very clear that at the convention and at the rat -- the Philadelphia Convention and at the ratifying conventions, the -- the members of the convention and the -- the founders urging ratification viewed the power of the judiciary and the power of the Official 1 legislature to be coextensive. That's in the ratifying conventions. That's in Hamilton's Federalist Number 80. The -- the -- it's also clear from -- this is secondary sources, but they're cited in my brief, Bourguignon, for example, and Deirdre Mask's article -- that -- that the founders litigated those cases, those extraterritorial cases. And then the only question is: Well, did the Fifth Amendment change that? Did the Due Process Clause erase that baseline understanding? And, when you go to what Randolph said in his report on the Judiciary Act, when you look at the Judiciary Act, which was Senate Bill 1 in the first session of the 1st Congress, written by -- in the hands of Ellsworth and Patterson, you see people who were in the room who thought that it was perfectly okay to -- to allow for extraterritorial --
Justice Jackson: But you concede, as Justice Barrett pointed out, that we do have a Fourteenth Amendment due process set of cases and interpretations that have a different view Official 1 about the extent to which there are limitations that relate to contacts?
Kent A. Yalowitz: Right. So two -- I agree with that, and I -- I -- I would say two things about it. First of all, seeded within that jurisprudence is the idea of this horizontal federalism, which, even if you want to say it's the same standard, it's going to be a sovereign-by-sovereign analysis. That's what Justice Kennedy's plurality said in the --
Justice Jackson: How -- how do you explain Insurance Corporation of Ireland then?
Kent A. Yalowitz: Insurance Corporation of Ireland --
Justice Jackson: Where it was very clear -- or the fact that we have waiver in -- in these kinds of situations? Meaning isn't there some concept of individual liberty? If not, you couldn't --
Kent A. Yalowitz: Right.
Justice Jackson: -- waive this if it was all about territorial sovereignty.
Kent A. Yalowitz: Right. And, as -- as Your Honor pointed out in -- in Mallory, it's Official 1 a -- it's a -- it's a waivable right. There is a right and it's waivable. Of course.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE PETITIONER IN CASE 24-
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The act of Congress at issue here is an integral component of the foreign policy and national security policy of the political branches, including the securing of compensation for victims of terrorism. Congress determined that it is fair to deem the PLO and PA to have consented to personal jurisdiction in suits under the Anti-Terrorism Act if they made payments to or on behalf of persons who injured or killed Americans in acts of terrorism or engaged in certain activities in the United States. Both of those forms of conduct that are jurisdiction-trigging are knowing and voluntary. They have a clear nexus to United Official 1 States territory and to United States nationals and to the compelling U.S. interests in deterring terrorism. And the sculp -- the scope -- excuse me -- of the resulting submission to United States jurisdiction is very limited. It is not a general jurisdiction. It is narrowly limited to terrorism cases. Congress has the constitutional authority and institutional capacity to weigh the very interests, including the distinct status and international engagements of the PLO and PA, the United States' unique and long-term relationship with those entities, the imperatives of national security and foreign policy, and fairness to the claimants and to the foreign defendants. Congress's judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference. The Act providing for jurisdiction here is eminently fair and does not deprive Respondents of due process. This Court should sustain the statute. I welcome the Court's questions. Official
Justice Thomas: Mr. Kneedler, just to take a step back, do the PLO and the Palestinian Authority have constitutional rights?
Edwin S. Kneedler: We have not taken a position on that question. We have assumed that they do. That question is itself of some sensitivity to have the Court determine or a court determine in a judicial proceeding whether a particular entity is like a sovereign, is a sovereign, to what extent is it like a sovereign. We urge the Court not to delve into that. We have not taken a position on that because of the sensitivities in this particular arena. But we -- we do think that the status of the PLO, assuming arguendo that it has some -- and PA -- that they have some constitutional rights, that status is still relevant to the application of due process because -- for the reasons that I gave. The United States has a long-term relationship concerning them. It's complicated. It's nuanced. But the deterrence of terrorism has been at the center of that policy for the last four decades. And -- and the United States has Official 1 taken consistent efforts -- efforts to dissuade the PLO and the PA from supporting terrorism.
Justice Thomas: Didn't the Justice Department take a different position in the 1980s, that the PLO did not have constitutional rights?
Edwin S. Kneedler: Well, you say a different position. We're not taking a position here. But, in those -- those cases were --
Justice Thomas: Well, it's different from the non-position. (Laughter.)
Edwin S. Kneedler: Those -- those cases -- those cases were not about due process with respect to adjudicate -- of being haled into U.S. courts. They were First Amendment cases by and large that had to do with the permissibility of the United States closing the Palestine Information Office or limiting the -- the expressive conduct of those entities in the United States. And we think, in those situations, the United States surely has the authority to expel the PLO, to close an information office, to close any office for that matter, and to limit Official 1 what they may engage in in the United States. I think that the due process question of being deemed to be -- have submitted to the courts of the United States may present a different question.
Chief Justice Roberts: Counsel, you articulated your -- your jurisdictional approach in the terms of the particular facts of this case. I mean, could you articulate it more generally how it would apply? In other words, you focus on the facts, and that's perfectly appropriate. But, if we were to articulate the general test and how it would apply, how would you -- how would you articulate that?
Edwin S. Kneedler: Well, I -- I -- I think there are maybe different circumstances. This case is word -- the statute here is worded in terms of consent to jurisdiction, where the -- the PA and PLO are deemed to have consented to or to submit -- to submit themselves to the jurisdiction of the United -- United States courts. In that circumstance, we have proposed a test that depends on whether the conduct that is jurisdiction-triggering is knowing and Official 1 voluntary and whether the resulting submission to jurisdiction is fair and not exorbitant. The -- the dissenting opinion from rehearing en banc in the court of appeals also said that there should be a nexus between the United States and -- and the -- and the conduct involved. I think the nexus -- I'm sorry. But, if -- if you're -- if you're not relying on consent, then you have perhaps a different analysis.
Chief Justice Roberts: Well, it sounds like it's a grab bag. I mean, you -- you -- as far as I can tell, it's -- 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. I mean, it -- it -- could you be a little more precise about what exactly we should be looking for or --
Edwin S. Kneedler: Well, the -- the -- what I was describing is linked to the question of consent, and we were building on the consent theory that came from this Court's decision in Mallory and other cases under the Fourteenth Amendment, where the conduct has to be voluntary Official 1 and -- and I -- I think some element of -- of fairness or nexus to the -- to the jurisdiction. So, in that part of what I was saying, in that part of our argument, we were saying that the circumstances here can be analyzed under the Fourteenth Amendment standards. It's obviously not the Fourteenth Amendment itself, and the United States is different from states. But, with respect to consent, the factors that I have identified -- and this statute is written in terms of consent -- are -- would be relevant to consent. If you're -- if you're not talking about a situation of consent, then you get into something that's more parallel to International Shoe with the -- with -- I -- I do want to make an important point here --
Justice Gorsuch: Well --
Edwin S. Kneedler: -- though, in response to just --
Justice Gorsuch: -- Mr. Kneedler --
Edwin S. Kneedler: I'm sorry.
Justice Gorsuch: -- are you asking us to apply the Fourteenth Amendment standards, or are you saying the Fifth Amendment is different? Official
Edwin S. Kneedler: I -- we do believe the Fifth Amendment is different, but even if in this --
Justice Gorsuch: And -- and the Fifth Amendment, as Justice Barrett was pointing out, was historically understood to assume the law of nations, general law applies, but Congress can -- can reject that.
Edwin S. Kneedler: Yes.
Justice Gorsuch: And when it does, this Court has to follow it. That -- that was -- that was the historical rule in the Fifth Amendment as I understand it, unless I'm mistaken.
Edwin S. Kneedler: Well, that was the understanding certainly.
Justice Gorsuch: Oh -- okay.
Edwin S. Kneedler: Justice Story expressed that. I don't think any of those cases were actual --
Justice Gorsuch: And The Charming Betsy and -- and a whole bunch of others, right?
Edwin S. Kneedler: Right. With -- with respect to sovereign immunity or other aspects of -- of jurisdiction, yes. But the -- the -- Official 1 those cases -- those decisions, particularly the Justice Story ones, were not presented with a case in which Congress actually had disagreed with -- with international law.
Justice Gorsuch: And, here, we do --
Edwin S. Kneedler: And we think that that --
Justice Gorsuch: And, here, we do have that, and -- and -- and Congress has adopted (A) and (B). And is there any -- and -- and you talk about the importance of -- of sensitivity of -- of foreign relations and that this Court is not well-positioned to do that and the -- and the political branches are. And if all that's true, then -- then how do we have this fundamental fairness overlay that you're now discussing in your brief in the Fifth Amendment context?
Edwin S. Kneedler: Well, again, I was -- those -- that -- the articulation of that test was looking at it under -- under the rubric of consent, which --
Justice Gorsuch: Under the Fourteenth Amendment rubric? I -- I just want to be clear. We're talking about -- Official
Edwin S. Kneedler: Yes. But -- but -- but --
Justice Gorsuch: Okay. I'm talking about the Fifth Amendment.
Edwin S. Kneedler: No, I understand that. All I meant is that if -- because the statute is written in terms of consent, if the Court chose to analyze it under consent --
Justice Gorsuch: I'm -- I'm -- and I'm asking you to put aside the Fourteenth Amendment concepts for now.
Edwin S. Kneedler: Okay.
Justice Gorsuch: And under the Fifth Amendment, does this Court have any role in saying that what Congress has done is improper?
Edwin S. Kneedler: I don't think it has a role here. I'm reluctant to say that there is no role because one could imagine any sort of act of Congress -- I -- I think -- I think --
Justice Gorsuch: Yes. And -- and that's what -- that's the tension I see in your argument. On the one hand, you say, historically, the Fifth Amendment was understood to mean we respect what Congress does in this area. And you -- you started off -- your Official 1 introduction was all about how we owe deference to the political branches in this area. But it seems at the same time you want a safety valve for this Court to overrule some instances in which Congress does speak --
Edwin S. Kneedler: Well, I --
Justice Gorsuch: -- and defease international law.
Edwin S. Kneedler: No, all I'm saying is that the Court -- the Court doesn't have to go there, and -- and we think it would be prudent for the Court to wait for an act of Congress to -- because it takes an act of Congress to provide for personal jurisdiction other than following the rules of the state. Well, I think it would be prudent for the Court to look at the particular act of Congress involved, what the rationale for that statute was, and see whether it -- whether it would comport with due process.
Justice Gorsuch: My -- my -- my --
Justice Kagan: Mr. --
Justice Gorsuch: -- last question. I'm sorry. I'm almost done. If we were just to analyze this under Official 1 the Fourteenth Amendment precedents, same question I asked your -- your friend earlier. (B) I kind of understand. You have an office, okay?
Edwin S. Kneedler: Right.
Justice Gorsuch: And I get the Mallory analogy. I do. I understand that. Now whether it works is another thing. But (A) is a little bit different. It -- it's purely extraterritorial behavior. And that -- that's a little harder to square in my mind with our Fourteenth Amendment jurisprudence. Do we need to decide (A)? Is it enough to say this case survives under (B) even applying our Fourteenth Amendment?
Edwin S. Kneedler: Well, we agree with the plaintiffs that it would be prudent for the Court to address both. And -- and I --
Justice Gorsuch: But do we need to? I mean, if -- if -- if there's jurisdiction under (B), do we need to say there's also jurisdiction under (A)?
Edwin S. Kneedler: Well, with respect to the activities, the lower courts have not Official 1 decided whether the -- whether the activities that -- that are alleged would -- would be protected or not protected, so there would be yet a further remand. And we think the payments -- and I -- I do want to address, I think, a premise of your question. Because the payments occur outside of the United States, there can't be minimum contacts with the United States. But this is a place where we think the Fifth Amendment would differ from the Fourteenth.
Justice Gorsuch: Okay. That -- that answers my question if you say it's different than the Fourteenth, so we'd need to do something different. I'm sorry, Justice Kagan.
Justice Kagan: No, no, no, that was helpful. I hear you, Mr. Kneedler, as being reluctant to go to a place where you say that anything Congress says goes. I mean, obviously, you're saying here Congress -- whats Congress said goes, but you're reluctant to say anything -- may I continue? Official
Chief Justice Roberts: Sure.
Justice Kagan: -- you know, anything Congress says goes, there are constitutional constraints. And is that because there would be foreign policy implications that would result from an extremely broad congressional assertion of jurisdiction over foreign nationals?
Edwin S. Kneedler: There could well be. I mean, I think that would be one of the -- one of the reasons. And Congress proceeded cautiously here. It tried a number of -- of ways to provide for these suits. It could, but -- but one can imagine, especially in -- in these days, if you subjected someone around the globe to general jurisdiction in U.S. courts, the Court might be troubled by that. And this is far from that.
Justice Kagan: Well, the -- the Court might be troubled. I'm -- I'm really asking whether the Solicitor General representing the United States is troubled by that. I could understand an argument which would say that if Congress does something that really stretches very far and wide, it could Official 1 have foreign policy consequences, it could encourage other nations to retaliate and treat U.S. citizens in the same way, that sort of thing, where the United States might be -- you tell me if you are -- but might be reluctant to have a court rule that says anything Congress says goes in this area.
Edwin S. Kneedler: Yeah, there would -- there could well be -- problems with other countries' reactions to that and -- and retaliation perhaps. I do want to complete the thought, if I -- if I could, about why the Fifth Amendment would be different with --
Justice Kagan: So you want a narrower rule than sort of anything Congress says goes?
Edwin S. Kneedler: We would be pleased with a rule that -- that is broader than -- broader than what we've urged here, but we think it -- it -- it would also be useful to proceed incrementally. The Court wouldn't have to confine it to these precise circumstances, which are -- are compelling. But the -- but the point I wanted to make, which -- which I think could be part of Official 1 the test if you're not looking at -- at consent, is that I don't think minimum contacts would be the right way to look at it. It would be, I think, at most, a nexus of some sort to the United States, which is what Judge Menashi in the -- in -- in his dissenting opinion in the court of appeals said. And, here, you have a nexus. It -- it doesn't have to be territorial contacts because, as plaintiffs' counsel pointed out, the United States has sovereign authority to extend laws and judicial jurisdiction beyond the borders of the United States. Here, the conduct abroad plainly has a nexus to the United States. The payments prong concerns acts of terrorism that injure United States persons --
Justice Kagan: Thank you.
Edwin S. Kneedler: -- abroad.
Chief Justice Roberts: Thank you, Mr. Kneedler. It -- it -- it might help me get a handle on the positions of the respective parties if you could tell me in what significant respects the position of the United States Official 1 differs from that of Petitioner.
Edwin S. Kneedler: I -- I don't think the -- I -- I don't think the position really --
Chief Justice Roberts: Not necessarily the judgment. The analytic approach.
Edwin S. Kneedler: I -- I think the analytical approach that I've described is -- is consistent -- entirely consistent with what plaintiffs have argued. They are making a broader argument sort of categorically and affirmatively at this time. We have not, which is not to say that we may not embrace that at a later time, but we think that that's an issue that should -- that this Court should decide on the basis of -- of a full briefing and -- and analysis in a situation where it might really matter. But -- but, here, we don't -- we -- we think this fits comfortably into even Fourth Amend -- Fourteenth Amendment principles but, certainly, the Fifth Amendment principles with respect to Congress's ability in this area to -- to provide for jurisdiction.
Chief Justice Roberts: Thank you. Official 1 Justice Thomas?
Justice Thomas: Mr. Kneedler, the Chamber of Commerce amicus brief indicates that the Justice Department has had a consistent view that these organizations did not have constitutional rights. Do you think the brief is accurate? And, if it is accurate, is this now a change of positions?
Edwin S. Kneedler: Again, I -- the -- the cases that -- from -- from back in that era concerned, I think -- I think all of them concerned the First Amendment and Congress's ability to deal with the PIO and -- or information office and the -- and the PLO with respect to their domestic activities. In the prior round of the Sokolow case, where the Second Circuit held that the -- that the Respondents here do have due process rights, we did not take a position on that question at the time and we urged the court to deny certiorari in the case. So that -- that has been -- once we have now looked at the due process question -- and this goes back, I think, at least 10 Official 1 years -- I -- I forget when the -- when the prior was. So we -- we have not advanced a position with respect to due process in those intervening years.
Chief Justice Roberts: Justice Alito?
Justice Alito: Mr. Kneedler, I understand that you're trying to wend your way through some sensitive territory, but I could use some help about the problems that I see along the course that you are recommending. You start with the argument that we could say that this -- that there is jurisdiction -- there would be jurisdiction under the Fourteenth Amendment's case law because of consent. What -- what are -- what limit do you see on the ability of a state to impose a -- a regime of constructive intent? I mean, suppose that a state said that anyone who commits a tort against one of our citizens is deemed to have consented to our jurisdiction, regardless of where the tort occurs. Would that be consistent with our Fourteenth Amendment case law?
Edwin S. Kneedler: No, it would not. And Official 1 I -- and I think maybe I misspoke or -- or wasn't clear about Fourteenth Amendment. I didn't mean literally the Fourteenth Amendment standards as if the United States was a state. I -- I meant that the Fourteenth Amendment principles as applied to the United States rather than a state. And so, with -- with respect to a -- a state, there may be issues, as -- as you suggested in -- in Mallory, with respect to the ability of a state to condition subjection to jurisdiction on the basis of doing business in the state. But Congress has a much broader authority with respect to -- under the Commerce Clause, for -- for example, to condition someone's participation in our economy than a -- than a -- an individual state does. So --
Justice Alito: So -- so then it -- it does seem that you are not -- you are not really saying we can find that there's personal jurisdiction here simply by applying the Fourteenth Amendment? We have to look to a different standard?
Edwin S. Kneedler: No. What our -- what Official 1 our -- our brief said or tried to say is you can look at Fourteenth Amendment principles, not the literal application of them, Fourteenth Amendment principles with respect to consent, apply those to the somewhat distinct situation of the United States under -- under the Fifth Amendment, where the -- where Congress is not limited in the way a state is in conditioning access to the economy or to other aspects of United States interests in the way that a state is.
Justice Alito: And then, on the question whether it would be enough -- whether there could be -- there -- there would be personal jurisdiction because the PLO has an office in the United States, that's not -- that -- that is a factual issue, isn't it, that has not been resolved --
Edwin S. Kneedler: Yes.
Justice Alito: -- by the lower courts? So we would have to do that in the first instance?
Edwin S. Kneedler: Or -- or remand to the court of appeals.
Justice Alito: Or remand. Official
Edwin S. Kneedler: Yeah. It -- it -- it -- it's really activities. There are no offices, aside from the U.N. office, although there are allegations that that office is being used or has been used for activities extending beyond the role at the U.N.
Justice Alito: And so then, if we say -- if we look to the 19th Century cases, the statements that Judge -- that Justice Story made, you don't want us really to say -- you don't want us to adopt that fully, that -- well -- well, we'll presume that Congress is -- that Congress is respecting international law, but, if it says it's not, if it's authorizing jurisdiction where that would be contrary to principles of international law, that's fine. You really don't want us to say anything goes. But, if we don't say anything goes, then we have to say what doesn't go or we have to explain why this would meet -- why the facts here would meet whatever standard is -- is required. How do we do that without -- you don't want us to say anything goes, but that means we have to say what the test is. And then what is the test? Official
Edwin S. Kneedler: Well, you say we -- we don't want you to say -- I mean, it -- we -- we are -- we are not disagreeing with the basic proposition that Congress has broad authority in this area.
Justice Alito: Well, let me just rephrase it. At one point, you said you -- I thought you just said a few minutes ago you'd be pleased with a decision that says Congress can do whatever it wants. But I understood your argument to mean that you really --
Edwin S. Kneedler: I -- it -- it -- I -- I --
Justice Alito: -- you didn't -- you really don't want that because --
Edwin S. Kneedler: -- I -- I did not mean to say that.
Justice Alito: Okay.
Edwin S. Kneedler: And -- and -- and I think that the -- the question of how far Congress's powers go could -- as Justice Kagan pointed out, you know, the farther it goes may create other problems for us.
Justice Alito: No. No, I appreciate that. But how can we -- if we don't say Justice Official 1 Story was right, you know, end of case, then we have to say that there is some standard that has to be met, and then we would have to explain why this case does or does not meet that standard, right? So then we have to say what the test is.
Edwin S. Kneedler: Well --
Justice Alito: And that gets more difficult.
Edwin S. Kneedler: Yeah. Well, again, there may not be one test. We laid out a test for consent. There may be a -- a -- a different -- probably would be a different test where consent is not the basis of the jurisdiction but something akin to minimum contacts, which I think would be a nexus to the United States because the United States has interests abroad. If those interests are affected, like U.S. citizens or -- or terrorism or other actions of the United States in the Middle East, if whatever's being done has a -- has a nexus to that, that would be a sufficient basis for the exercise --
Justice Alito: Okay. Well --
Edwin S. Kneedler: -- of jurisdiction.
Justice Alito: -- just to -- to Official 1 wrap -- to wrap up, you -- you want -- on consent, you want us to say there's consent here even though there might not be consent or there would not be consent if a state tried to do something analogous and had to meet the Fourteenth Amendment?
Edwin S. Kneedler: There -- there may well not be because this is conduct -- the -- the payments prong is -- is conduct occurring outside the United States, so, if minimum contacts is thought of in terms of a territorial connection, we don't think that that applies to the United States.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Let's go back a moment to your response to Justice Gorsuch. Justice Story did not -- did not have a case in front of him involve -- establishing personal jurisdiction -- over a person who had no connection to the United States whatsoever, correct?
Edwin S. Kneedler: Right. Yes.
Justice Sotomayor: That was not at Official 1 issue there.
Edwin S. Kneedler: Those -- those --
Justice Sotomayor: It's interesting that he and other commentators spent so much time making these broad statements when Congress consistently -- that's what Professor Sachs pointed to -- for over a hundred years, pretty much stayed within International Shoe's limitations, no, in all the Acts that it created?
Edwin S. Kneedler: Well, it -- it -- yeah, I mean, it created nationwide service of process or even worldwide service of process like under the --
Justice Sotomayor: Yes.
Edwin S. Kneedler: -- antitrust laws. And it has proceeded, but it -- but it has regulated some things outside the United States that affect --
Justice Sotomayor: Absolutely.
Edwin S. Kneedler: -- its interests.
Justice Sotomayor: But -- but the absolute statement, it never did?
Edwin S. Kneedler: No, it's never -- it's never -- it's never gone to that extent. Official
Justice Sotomayor: It's always -- okay. Now, going back to your concession, I think, to Justice Alito, don't think that this fits within our minimum contacts theory of the Fourteenth Amendment, so go with me. If I can't see this as consistent with the Fourteenth Amendment, then those circuits who have said that the Fourteenth and the Fifteenth, like the Second, are identical are wrong? The Second Circuit was wrong in that --
Edwin S. Kneedler: Yes. We --
Justice Sotomayor: -- assumption?
Edwin S. Kneedler: -- we -- we think it was clearly wrong, yes.
Justice Sotomayor: All right. So now we go to Justice Alito's point, which is, if the Fifth -- if the Fifth Amendment is different, your colleague, Petitioners' counsel, argued somewhat what you ended up with in your response to Justice Alito, which is that Congress can -- the Fifth Amendment has some sort of limitation because there has to be some nexus to a federal interest, correct?
Edwin S. Kneedler: Well, what I think the Court can assume that. I -- I -- you know, Official 1 again, if Congress passes a statute --
Justice Sotomayor: We can't assume it if we're going to apply it to this case.
Edwin S. Kneedler: Well, I --
Justice Sotomayor: Well, you know --
Edwin S. Kneedler: No, I -- no, I think the Court could assume that there's a nexus requirement. If Congress passes a statute where there isn't one, then there will be time enough to decide whether that -- whether that's -- that's valid.
Justice Sotomayor: So I guess the opinion, the way we would write it is to say we don't have to reach the question whether Congress has the constitutional power to -- to submit to our jurisdiction something without a federal interest, but this federal interest is enough?
Edwin S. Kneedler: I -- I think that would be sufficient. It may also -- another different context may be if it's a U.S. citizen, as opposed to somebody outside the United States or a foreign entity.
Justice Sotomayor: All right. Now let's go to another part of this question, which Official 1 is the office or lack thereof. I understood that the -- the -- the provision at issue here, (B), as opposed to (A), which is the payment prong, but the (B) prong, do they have to have an office, or could they just be present here at all?
Edwin S. Kneedler: Well --
Justice Sotomayor: Meaning I thought any activity, whether it was behalf -- I think Justice Gorsuch got to this at one point. (B) could be read whether they have U.N. immunity or not is irrelevant. The U.S. could choose if it wanted, couldn't it, to say we won't respect U.N. immunity with respect to this person, correct?
Edwin S. Kneedler: And -- yeah. First of all, there's no personal immunity here. There -- the U.N. --
Justice Sotomayor: It --
Edwin S. Kneedler: -- agreement provides for access to the U.N. --
Justice Sotomayor: Right.
Edwin S. Kneedler: -- by observers like the -- like the PLO and PA. But --
Justice Sotomayor: But no -- nothing Official 1 says that the U.S. has to give them -- that that activity of having access --
Edwin S. Kneedler: The -- the headquarters agreement --
Justice Sotomayor: Right.
Edwin S. Kneedler: -- does but not -- but Congress -- I mean, that -- the United States acceded to that. So --
Justice Sotomayor: It acceded to that, but it didn't have to.
Edwin S. Kneedler: Yes. Well -- and -- and we don't want to suggest that the defendants --
Justice Sotomayor: No.
Edwin S. Kneedler: -- might draw away from it.
Justice Sotomayor: So, if we said something like what Justice Gorsuch said, which is the fact that they're here for whatever reason is enough of a connection to the U.S.?
Edwin S. Kneedler: I -- I -- I think the -- the Court could hold that. I mean, there -- and -- and process was served in the United States --
Justice Sotomayor: Well, exactly. Official
Edwin S. Kneedler: -- as -- as -- as -- as well. But the only office is the office -- the U.N.-related office. The allegations are that --
Justice Sotomayor: But that's irrelevant to --
Edwin S. Kneedler: -- that that office was abused --
Justice Sotomayor: That's irrelevant to the point we're discussing, which is, if the statute is written so that any presence for any reason in the United States subjects them to jurisdiction here for purposes of service.
Edwin S. Kneedler: If -- if there was such a -- a statute. Here, there's -- the statute itself providing for personal jurisdiction protects or doesn't include or doesn't count the U.N. office and activities that are ancillary to that or meeting with U.S. officials. Those are not activities that count for purposes of triggering personal jurisdiction.
Justice Sotomayor: (B) -- you -- you don't think it triggers (B) or it can't trigger (B)? Is that what you're telling me?
Edwin S. Kneedler: Yeah, the -- the Official 1 statute exempts from the triggering activities activities at the office that are -- that are --
Justice Sotomayor: I don't --
Edwin S. Kneedler: -- connected to the U.N.
Justice Sotomayor: I don't think that's what they -- I'll let plaintiff -- I'll let Petitioners' counsel address that. All right. Thank you, counsel.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: I just want to make sure I understand. The -- this is a national security and foreign policy case, as you started with, right?
Edwin S. Kneedler: Yes.
Justice Kavanaugh: And Congress and the president have agreed, acting pursuant to the national security and foreign policy principles set forth in the Constitution, on what the proper rule here is, correct?
Edwin S. Kneedler: That is correct, yes.
Justice Kavanaugh: And there's no doubt that the -- in terms of regulating the Official 1 conduct, that they acted per -- pursuant to those Article I powers -- the Article I and Article II powers, correct?
Edwin S. Kneedler: Right. And Article III, Congress -- or I guess Article I, Congress establishing the lower courts.
Justice Kavanaugh: So it seems like, you know, it's Youngstown category 1 situation, where the president and Congress have acted together. Now there is still a role for judicial review to -- to make sure they're not crossing some other constitutional line, but, usually, that's a very sensitive judgment for a federal court to make. And, usually, we would require something in either the text of the Constitution or in the historical practice over the years that would suggest some principle that the courts could rely on that would disagree with the foreign policy and national security judgment of Congress and the president acting together.
Edwin S. Kneedler: Right. That -- that's -- that's absolutely correct. And even to the extent there is a fairness element here, Official 1 Congress is in a position to weigh what --
Justice Kavanaugh: But Congress and the president --
Edwin S. Kneedler: Congress and the president --
Justice Kavanaugh: I mean, I think -- I think you're going to agree with what I'm about to say, but Congress and the president are the ones who make fairness judgments when we're talking about the national security and foreign policy --
Edwin S. Kneedler: Yeah.
Justice Kavanaugh: -- of the United States. Unless it crosses some other textually or historically rooted constitutional principle, courts shouldn't be coming in, I don't think, without that and saying: Gee, what Congress and the president are doing here to advance the national security and foreign policy interests of the United States strikes us, you know, from our perch as unfair.
Edwin S. Kneedler: Yeah, I completely agree with that and, as I said, Congress's assess -- Congress and the President's assessment of what's fair in these Official 1 circumstances, what -- what could be problematic in these circumstances, the ongoing relationship of which terrorism has always been a major -- a central element of the foreign policy and national security.
Justice Kavanaugh: And that's why you see bipartisan amicus briefs from the House of Representatives, bipartisan amicus briefs from the Senate.
Edwin S. Kneedler: Yes.
Justice Kavanaugh: This is not -- this is a considered judgment that is across the two branches. So I -- I think you said -- you started with great deference as the principle, and I -- I agree with that, obviously, based on what I've said so far. I'm wondering when the great deference runs out.
Edwin S. Kneedler: Well, it -- it -- as I stand here, I can't think of a circumstance in which it would, particularly with respect to entities such as the PLO and Palestinian Authority, which are foreign non-sovereign entities. Yes, they exercise some governmental Official 1 power, but there's a unique relationship. They -- they're -- they have diplomatic relations around the -- around the world. So Congress should have particular latitude. And a court, I think, should be reluctant, if ever, to second-guess that judgment.
Justice Kavanaugh: And I think you'll probably agree with this too, but it also doesn't strike me as the proper judicial role to seize on international law principles that might be lurking out there somewhere to tell the president and Congress together, acting together, that somehow they've crossed some line.
Edwin S. Kneedler: No, Congress is perfectly -- and the president are perfectly capable to take into account whatever international law there may be. And it -- it's my understanding, although I haven't looked deeply into this, that international law doesn't place so much emphasis on personal jurisdiction the way we do. But it's up to Congress and the president to weigh whatever -- if -- even if it's not international law, what international Official 1 practice would be or what -- what the reaction of other nations might be in a particular circumstance. But this is narrowly focused on a particular recurring problem that Congress desperately wants to address. This is its third try in doing that.
Justice Kavanaugh: The recurring problem of terrorism?
Edwin S. Kneedler: Yes.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Mr. Kneedler, I just want to follow up on Justice Kavanaugh's questions. Given your answers to Justice Kavanaugh, I just want to make sure. I might have misunderstood your colloquy with Justice Kagan earlier. But I had thought that you said -- and -- and I may well have misunderstood -- that one reason for us not to go the full-bore route as broadly as Petitioner has asked us to is because that might have foreign policy implications or that might have Official 1 national security implications that would blow back. But is that what you said?
Edwin S. Kneedler: Well, I think there might -- I think there -- I'm -- I'm -- I'm not in a position to -- to say that categorically, but I -- but I -- I do think there's some reason for cautious there -- caution there.
Justice Barrett: Why? I mean, as you just told Justice Kavanaugh, these judgments about foreign policy considerations are for Congress and the president to make. So, if at some point in the future Congress and the president passed a statute that went farther than this one on personal jurisdiction, why would what we do be a foreign policy -- I mean, wouldn't we defer to president and Congress then? I guess I'm just struggling to see what the foreign policy concern is with our taking the broad theory.
Edwin S. Kneedler: Well -- well, but -- but, if -- if you announce a broad categorical view here in a situation which it is not -- when the Court wouldn't be required to do so, it's Official 1 that -- it's that statement that might --
Justice Barrett: Like, even if it's true, like the government -- like you've said that you're okay with that rule, you think we should just not say it.
Edwin S. Kneedler: Well, I didn't -- I --
Justice Barrett: So, even if it's true or even if it's the accurate interpretation of the Fifth Amendment --
Edwin S. Kneedler: I --
Justice Barrett: -- you're saying, shhh?
Edwin S. Kneedler: I -- I -- no, I don't think I -- I -- I didn't mean to say we're okay with that. I think we would want to examine questions of -- of -- of fairness to see whether that should be an element or not or whether Congress, in fact, has plenary power. And it may well be that -- that the Court, if -- if a situation actually confronted it, that the Court would conclude that or that we might submit that. I can't say we wouldn't. But I think -- I think it's important, particularly given the -- the parallel development of the Fourteenth Amendment, not to Official 1 dismiss that out of hand in a case that doesn't -- doesn't require that analysis. Also, there could be other situations in which Congress would provide for personal jurisdiction, like in the person -- in the commercial sphere, which would not present as starkly the questions of national security and foreign policy, although there would obviously be some foreign policy concerns about extending jurisdiction, but the circumstances might be different.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So can I go back with -- to your colloquy with Justice Gorsuch? I didn't read your brief as conceding that historically, the Fifth Amendment imposed no limits. In fact, on page 47, you say that that theory is not easily confirmed as a historical matter. And there's nothing in your brief that seems to embrace the proposition that as a historical matter, there were no limits on Congress's ability to do this sort of thing. So I just want to give you an Official 1 opportunity to clarify what the position of the United States is related to Justice Gorsuch's point about whether the -- what the history shows.
Edwin S. Kneedler: Yeah. We are not making that affirmative argument, and, if we were going to make that argument, we would want to present a full -- a full argument on it either way and -- and fully addressing the --
Justice Jackson: But, to the -- Chief Justice's point, this then creates some daylight between you and the other Petitioners because they are in fully on this kind of originalist take on what the Fifth Amendment requires and are encouraging us to -- to adopt that broader theory.
Edwin S. Kneedler: As one of two alternatives, they make --
Justice Jackson: Yes. That's one of the alternatives. I appreciate that, but --
Edwin S. Kneedler: Yes. Yeah. Yes. No, yes.
Justice Jackson: -- but -- but the government is not asking us to do that as one of the things? Official
Edwin S. Kneedler: We are not asking you to do that. We are -- but we are also not saying -- what we're just not addressing --
Justice Jackson: Yes. Understood.
Edwin S. Kneedler: -- that question either way.
Justice Jackson: Understood. But going to Justice Kagan's point in response to Justice Barrett, I mean, I -- I would take your point to be that there could be foreign policy implications either way and that to the extent that there are announcements that the Constitution of the United States imposes no limit on Congress or the president with respect to their activities internationally or concerning international citizens, that -- that could -- you could conceive of a world in which that could be problematic?
Edwin S. Kneedler: Yes, I -- I -- I can conceive of that world. And I -- and I think, again, before the Court -- I -- I doubt that the Court would want to announce that without the executive branch and -- and Congress supporting it either in an act of Congress --
Justice Jackson: So that's one reason Official 1 why the broader theory might be we -- we should be cautious in -- in going down that road. I -- I wonder if another possible reason is that we, as far as I can tell, have never applied this sort of methodology to considerations of the Fifth Amendment, and there could be all kinds of unintended consequences to starting to do that, like how do we interpret the scope of the Due Process Clause, do we do it as an originalist kind of exercise, and we haven't done that in other areas. And -- and the concern is that that might open cans of worms that would imperil, for example, you know, what we said in Bolling versus Sharpe, the idea that the Fourteenth Amendment's Equal Protection Clause is reverse-incorporated through the Fifth Amendment's Due Process Clause. We didn't reach that through an originalist methodology. And so, if we're starting down that road, it just seems like there's all kinds of problems that might arise that we should be worried about.
Edwin S. Kneedler: Yeah, I -- I -- I can't say as I stand here that all those problems Official 1 would be true, but I do think that there -- that there would benefit from an analysis by Congress --
Justice Jackson: We've had different methodologies, and we just have to be careful in where -- in thinking about how we go about interpreting the Constitution and the implications that might have on existing precedents in other areas that deal with these same constitutional provisions, correct?
Edwin S. Kneedler: Right. Now, with specific reference to personal jurisdiction, this issue should not come up unless Congress first passes a statute providing for personal jurisdiction, and then we would know what -- what Congress found and what the rationales for it are.
Justice Jackson: Yes. And, in this case, we have the statute. And -- and -- and I appreciate your consent theory. I just -- I'm just trying to understand, though. You say that consent -- you agree that consent has to be knowing and voluntary, and you said that both forms of the conduct in this statute are -- both forms of the conduct are Official 1 knowing and voluntary. But I thought the knowing and voluntary had to go to the assent to jurisdiction. I -- I -- it's not that they continue to do something that they've already done. It's that if they agree to do this, they are consenting to the jurisdiction --
Edwin S. Kneedler: They -- they are deemed to consent.
Justice Jackson: No, I understand. But the question is how fair is the deeming --
Edwin S. Kneedler: Yes. No, no. And that --
Justice Jackson: -- in a situation like this.
Edwin S. Kneedler: -- and that's where fairness, I think, comes in. It comes in maybe in a case like Mallory or a case here on --
Justice Jackson: Yeah.
Edwin S. Kneedler: -- on consent. But -- but, like in the Carnival Cruise Lines, the passengers probably did not -- did not consciously submit to the jurisdiction of the court that was designated in those contracts, so they don't -- there doesn't have to be a Official 1 conscious awareness that the conduct --
Justice Jackson: All right. One final question.
Edwin S. Kneedler: Yeah.
Justice Jackson: I'm sorry, I'm -- I'm mindful of the time. The Second Circuit in this case said, as Justice Sotomayor pointed out, that the statute does not suffice to establish personal jurisdiction because the Fourteenth Amendment standards apply in the Fifth Amendment context, and they read those as precluding personal jurisdiction here. Would it be enough for this Court at this time to just say, if we agreed to this, that the Fourteenth and Fifth are not equivalent with respect to what is required, the minimum context -- contacts test, and send it back for an assessment of what the Fifth Amendment requires as it relates to the facts of this case?
Edwin S. Kneedler: I suppose it could do that, but I would urge the Court to actually decide the question. I mean, it was held unconstitutional. We think the -- the Official 1 circumstances for this statute are compelling, that it would be useful for the Court to decide that and enable this at least in the Sokolow case, a long-pending case, to be resolved finally.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Berger. ORAL ARGUMENT OF MITCHELL R. BERGER ON BEHALF OF THE RESPONDENTS
Mitchell R. Berger: Mr. Chief Justice, and may it please the Court: The PSJVTA purports to be a constructive consent statute, but it fails the due process test for constructive consent to jurisdiction established in Bauxites. Bauxites requires that the defendants' actions support a presumption of legal submission to the jurisdiction of the court. But, as alleged here, the defendants' actions do not support a presumption of submission to the court's jurisdiction. Among other things, the D.C. Circuit and the Second Circuit previously held that the same types of Official 1 PA and PLO conduct are constitutionally insufficient to support jurisdiction over them. Continuing to engage in jurisdictionally insufficient conduct is the exact opposite of submitting to the court's jurisdiction. And there is no limiting principle if Congress can change that equation and say conclusively what conduct shows submission under the Bauxites due process standard. That would entirely collapse the distinction between prescriptive and adjudicative jurisdiction in all federal question cases. Bauxites also holds that jurisdiction cannot be imposed as mere punishment, as it is here, when the alleged actions of the defendants do not support submission. The PSJVTA also fails due process under Mallory. Mallory, of course, upheld a reciprocal exchange by which Pennsylvania permitted access to its markets in return for submission to the state court's jurisdiction. Applied here, the Mallory question is: Does the United States permit the PA or PLO to do anything on condition that they submit to federal court jurisdiction? And the answer is Official 1 no three ways. First, the PSJVTA itself doesn't permit any conduct at all. Second, the statute gives no notice that its deemed consent condition attaches to any permission granted elsewhere. And, third, the United States has never identified any permission granted elsewhere to which the deemed consent condition attaches. And also, to address the questions of several of Your Honors, Mallory and Bauxites tell us that federalism plays no role in consent jurisdiction. As a result, Bauxites and Mallory apply equally here under the Fifth and the Fourteenth Amendments and support the court of appeals' decision. I welcome the Court's questions.
Justice Thomas: Mr. Berger, I know this is not the center of your argument, but could you just explain how PLO and PA are persons within the meaning of the Fifth and Fourteenth Amendment?
Mitchell R. Berger: Yes. Absolutely, Justice Thomas. And I would respectfully draw the Official 1 Court's attention back to the February 2018 amicus brief filed by the United States in an earlier round of this case, in which the government's non-position was considerably more of a position and basically said there's only one type of person that this Court's precedent has recognized is excluded from the Due Process Clause and that's sovereigns. And, because the PA and the PLO are not recognized as sovereign by the United States, they are, by default, persons entitled to due process protection. That's in pages 8 to 12 of their CVSG brief.
Justice Thomas: So an actual state would not be covered by the Fifth and Fourteenth Amendment, but an organization that is substituting for that is protected by the Fifth and Fourteenth Amendment?
Mitchell R. Berger: Well, I -- I think the line, as it's correctly been drawn on, at least in the lower courts, is that if it walks and talks like a government, it's not a sovereign state until the United States recognizes it as sovereign. And there are plenty of entities out there that exercise so-called governmental functions. Official 1 But, it -- ultimately, it's binary, right? If -- if -- you're either a person for purposes of the Due Process Clause and entitled to due process protections, or you're a sovereign state and you're entitled to the protections of the Foreign Sovereign Immunities Act. But there's no no-man's-land where you're neither a sovereign state nor a person.
Justice Thomas: What if other countries recognize Petitioner -- Respondents as a state --
Mitchell R. Berger: I think --
Justice Thomas: -- or a sovereign?
Mitchell R. Berger: Excuse me. I think this Court's decision in Zivotofsky makes it very clear that there's only one vote that matters on this issue, and it's not the 140-odd other countries that recognize Palestine as sovereign. It's the vote of the president of the United States, who has exclusive authority to recognize a sovereign state.
Justice Sotomayor: Counselor, can I ask you to step away from the Fourteenth Amendment? Assume you're absolutely correct that this statute fails every test we have Official 1 applied under the Fourteenth Amendment. I'll even grant you that because I think it does, okay? But, assuming that, the argument here has not centered on that. It's centered on the Fifth Amendment. And so would you address why, if we find that the Fourteenth Amendment jurisprudence is not informative of or equal to the Fifth Amendment, why do you win?
Mitchell R. Berger: Well --
Justice Sotomayor: Meaning there's been a variety of tests proposed. The other side and the government seem to say the Fifth Amendment would look to whether there is a federal interest that -- and -- and jurisdiction reasonably relates to the protection of that interest. I think that's their -- their test. How do you fit that?
Mitchell R. Berger: Well, I would say this is a situation where we don't need ad hoc new standards that clearly at least some members of the Court are struggling with here today. We have a very old standard that I think makes sense for the Fifth Amendment.
Justice Sotomayor: Yeah, but their Official 1 struggle is why don't we say there's no limitation. Their struggle doesn't appear to be with creating a limitation. Their struggle seems to be: Well, there's no historical basis for a limitation on Fifth Amendment federal jurisdiction. I don't know why it has to be limited, their theory has to be limited, to the international or foreign affairs. Their theory would say, if there's no limit, it applies to U.S. citizens, as well as to foreign citizens. So we can step past that, okay?
Mitchell R. Berger: Well, so I -- I guess I'd build a Fifth Amendment test this way. And I'll start with Your Honor's observation, I think, in your concurrence in Daimler that fundamentally, jurisdiction requires reciprocal fairness. And that's going to be true under the Fifth Amendment and the Fourteenth Amendment equally because both protect liberty interests. And, if it protects a liberty interest, there's no suggestion in any of the previous case law that a liberty interest is worth less under the Fifth Amendment than it is under the Fourteenth Amendment. Official 1 And if both protect a liberty interest, then it remains true, as the Court said in Murray's Lessee, that Congress cannot simply say what due process is. It's not up to Congress entirely. And I think that goes to the government's concession that the earlier cases, where Justice Story riding circuit or otherwise, they were opining on cases that weren't decided. Murray's Lessee is this Court's precedent that says the legislative will is not enough to define due process. So what is the test? And I would say the test is -- as developed by the court of appeals, is the correct one, which is that you adjust the forum for which a forum connection is required to be the United States as a whole because of the distinct federal interests rather than state interests, but you still apply a minimum contact test because of the reciprocal fairness that underlies the minimum contacts test.
Justice Kagan: Do you think that that reciprocal fairness applies as well when one's speaking of foreigners as -- as it does to a domestic context? I mean, even our view of Official 1 fairness here, as in large sense being about reciprocity, I would think doesn't quite translate as well into the international context and which we're not used to thinking that way.
Mitchell R. Berger: If anything, I would say respectfully, Justice Kagan, that the fairness component is probably exponential when it comes to dealing with foreigners because of the kinds of concerns that the government has articulated here, the kinds of concerns that were articulated in Daimler about overly grasping jurisdiction, that if -- if we purport to have exorbitant jurisdiction for foreigners but not for domestic citizens or residents, then you are really inviting an international comity problem. But there's no reason doctrinally to read into either the Fifth Amendment or the Fourteenth Amendment a different definition of person that would exclude foreigners. A lot of the earlier case law, including those that Justice Gorsuch alluded to, are dealing with foreigners, and there's no assumption that, well, we're dealing with foreigners because they deserve less. If I may give one example that I think helps exemplify Official 1 this and gets us back to any concern about original public meaning. Nobody likes pirates, right? Pirates have been bad from the founding. Nobody ever thought that even though piracy is a crime against humanity or it's a crime that fits in the Define and Punish Clause, that, certainly, the United States can define piracy as an offense, but the United States does not try pirates in absentia because there's a delta between what Congress can prescribe as laws and what courts can do in adjudicating individual claims against someone who violates a law with extraterritorial effect. Justice Sotomayor in her commentary, I think, in RJR Nabisco notes that why are we dealing with a concern about the extraterritorial reach of a statute when there is separately a jurisdictional defense that would have to be considered? And there's always been an understanding from the founding that personal jurisdiction in the custody of the judicial branch is something over and above what Congress can prescribe.
Justice Gorsuch: Certainly, that's Official 1 true in -- in the piracy. You can't try them in absentia. You've got to get personal jurisdiction service process on them and -- and, -- and, therefore, have a court of competent jurisdiction. But the Court's never gone further in the Fifth Amendment context than that to start using principles of substantive due process -- there's that oxymoron again -- from the Lochner era no less to say that more is required beyond the original understanding. And it seems both sides would ask us to kind of play with that toy a bit and you -- you perhaps a little more aggressively than your friends on the other side.
Mitchell R. Berger: I -- I think it's a toy that should be left in the box because there's no reason, to sort of paraphrase something that Your Honor said in Mallory, this is a case where you don't need a new rule. This is a case where a very old rule really applies. And the old rule that applies, albeit at the court of appeals level but uniformly, is that the fairness that always underlay the Fifth Amendment and due process, even in Picquet and Toland and all these ancient cases, where they Official 1 talk about principles of fundamental fairness --
Justice Gorsuch: Ancient cases being our precedent.
Mitchell R. Berger: Well, I'm not sure Toland -- I'm not sure that Picquet is.
Justice Gorsuch: Some of them are. Some of them are lower court opinions, but they're -- they're -- they're precedents on the books --
Mitchell R. Berger: Right. And -- and --
Justice Gorsuch: -- and perhaps worthy of respect as well as our newer stuff --
Mitchell R. Berger: Not only do I respect --
Justice Gorsuch: -- with the Lochner era no less.
Mitchell R. Berger: I -- I -- I think I share that -- Your Honor's fondness for Murray's Lessee because you alluded to it in Jarkesy. And Murray's Lessee is a 19th Century precedent of this Court, not 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.
Justice Gorsuch: Charming Betsy, you know, as well, right? Official
Mitchell R. Berger: Right. But Murray's Lessee says as plain as you like that the legislative will alone cannot define what Fifth Amendment due process is.
Justice Gorsuch: No one disputes that.
Mitchell R. Berger: Right.
Justice Gorsuch: But the question is, if you're going to start adding things onto it beyond what was originally understood and exists in our precedent for a long time, that's quite a toy. That's -- and, as Justice Kavanaugh pointed out, you know, it's -- you're going to be second-guessing the Executive Branch and the Congress and the political judgments they've made about what does and doesn't interfere with international affairs.
Mitchell R. Berger: I -- I -- I don't think that's true for at least two reasons if I may. And -- and one is that there's a huge open question in this case, right, about what activity, you're focusing only on the activity prong, as Your Honor had alluded in some earlier questions. Official 101 Then the question is not what does due process allow. You don't have to reach that question because, as the government conceded, the statute contains a large number of exclusions where, essentially, whatever sovereign power Congress had and the president signed off on, they've -- they've laid down arms. They said, okay, we're not going to count for jurisdiction U.N. activity, meetings with the U.S. Government, and ancillary activities. Well, "ancillary" is a huge, undefined term, and we don't know what that means. And the reason we know that it means that there's not at the moment unanimity between the legislature and the executive is the government's opening brief cites two Office of Legal Counsel opinions dealing precisely with the Palestinian government, one in 2018, one in '22. They are a rich font of guidance, I think, in this area of what is the interest of the United States.
Justice Barrett: Counsel, can I -- can I interrupt and ask a question? So, even under the Fourteenth Amendment, we do look back at historical practice. And I'm thinking of tag Official 102 jurisdiction, for example. So, for purposes of the Fifth Amendment, would tag jurisdiction be okay in the context of a foreign defendant?
Mitchell R. Berger: I -- I think that if tag jurisdiction is limited to individuals, as Your Honor pointed out in your opinion in Mallory, it wouldn't apply to entities like the PA and the PLO, but there's no reason if his -- if history tells us, right, and that's the whole purpose of Burnham, is that there's a historical tradition behind tag jurisdiction, then, for individuals, there's really no reason to treat that differently under the --
Justice Barrett: Okay. So, if -- if history matters for things like tag jurisdiction even under the Fourteenth Amendment, could we say that under the Fifth Amendment, we similarly look at history and we see a tradition of treating foreign individuals, foreign defendants, differently from domestic or from -- from American citizens?
Mitchell R. Berger: I think, analytically, you could say that we could ask the question, but I don't think if that -- if your question Official 103 implied that that's the answer that history gives, I don't believe --
Justice Barrett: I -- I -- I understand. I'm just asking if we could ask the question because you -- you agree that history informs the content of due process even in the Fourteenth Amendment context. And so it might not be one to one, right, between the Fifth Amendment and the Fourteenth Amendment because history might bear differently on the United States than on any individual state.
Mitchell R. Berger: Well, I -- I guess a couple of points on that if I may. One is I -- I do think that history matters, if you're writing on a blank slate, that there's a reason why foreigners have not been treated differently under the Fourteenth Amendment. And then just to bring in one concern Justice Jackson raised, as exemplified by Judge Ho's concurring opinion in the Douglass case. He said, if we're going to start treating the Fifth and Fourteenth Amendment differently, then we are going to have to throw out the window the doctrine of incorporation because are we now Official 104 diluting all of the rights that apply to the states?
Justice Barrett: Well, I mean, I think that's stretching it a -- a bit far. I don't think we're throwing incorporation out. I mean, I think you can still recognize that the Fifth Amendment incorporates fundamental fairness for substantive due process right. And I think this can be about personal jurisdiction. So I think that's kind of a -- a way of -- of trying to -- to -- well, I just don't think it's necessary to go that far. I think they're distinct issues.
Mitchell R. Berger: If -- if -- if the Court doesn't need to, doesn't want to, and for whatever reason doesn't go that far, I think that what the historical case law tells us, whether it is Justice Story riding circuit, whether it's the Court in Toland, whether it's The Charming Betsy, you name it, all of the frigate cases, almost all of which involve reaching out to either a ship of a foreign nation or a foreign merchant, that there is, indeed, equal solicitude for foreigners.
Justice Barrett: Okay. And I'll just Official 105 say one other thing about incorporation. I think one distinction between your situation and that -- and it was kind of what I was struggling with some of the questions I was asking your friends on the other side -- is that, you know, we have doctrine in the context of incorporation already. There's already precedent on point. And, as you point out, then we're not writing on a blank slate, you know. So, in the Fourteenth Amendment context, whatever one thinks of International Shoe, we're not writing on a blank slate. We have quite a long line of precedent after that. We don't have squarely on point precedent in the Fifth Amendment context in personal jurisdiction as we do in substantive due process, and so that's why I think it -- it's not -- that's why we're here. It -- it's still an open question.
Mitchell R. Berger: And I do understand it's an open question. And -- and to the extent the Court is approaching it with a blank slate, I would say the factors that matter are not just what is the original meaning and what does history tell us. It's certainly important. Official 106 But, if jurisdiction is supposed to mean anything, it is supposed to provide predictable, reliable rules known in advance. And I believe it was Justice Thomas who alluded to the Chamber of Commerce amicus brief here, which, once it gets past the point of debating whether or not we're persons entitled to due process, lays out all the reliability concerns that says you're going to have to throw out four decades of Fourteenth Amendment due process jurisprudence as understood to apply in federal question cases if you decide the Fifth Amendment provides differential protection from the Fourteenth. And that is given that a core function of jurisdiction is to provide predictable rules in advance, exemplified here by the fact that the PA and the PLO genuinely don't know when you read the statute when you're under the activities prong, what is it that implicates the activities prong, it has to be predictable and reliable. So, if you do write on a blank slate, then you're going to already have opened a Pandora's box of the problem of people saying: All right, I've got to reorder all my affairs. Official 107 I would like if I have time -- and I don't see the red light is on -- to just address some of the other questions that I heard from the Court. I do believe Mr. Kneedler made an extremely important comment, and I -- to some extent, I believe the plaintiffs have conceded this as well, that there's a large open question if you focus exclusively on the activity prong of what is covered, what is the meaning of ancillary, what is the meaning of official U.N. business. And, earlier, I alluded to but perhaps didn't finish the thought about the Office of Legal Counsel opinions which say two important things. One, it offers a view from the executive's point of view in the context of the Palestinians as to what activity is allowed, and it basically said no matter what Congress says, we, the executive, believe the Palestinians are allowed to engage in incidents of diplomacy, like speaking to the Palestinian diaspora, like speaking to American citizens about Palestinian rights. And the only reason that matters is if we're litigating on remand, should it come to Official 108 that, what is the meaning of ancillary activities, the OLC opinions are directly germane. Point two about the OLC opinions, it says, look, we, the executive -- and this really goes to the government's point -- have exclusive control of how this country interacts with the Palestinian government. To the extent any statute out there, whether it's the 1987 Anti-Terrorism Act or anything else, says we can't do something or what they want us to do imposes a condition contrary to a condition we would impose, we view that as unconstitutional. So I would respectfully say that as far as the statute goes in its uninterpreted form, it reflects, Justice Kavanaugh, executive and legislative unanimity. But the minute you get down into the details of what's ancillary activity, does the executive branch take a contrary position on a case-by-case basis, that unanimity unravels. I think perhaps it was Justice --
Justice Jackson: Can I just ask you about -- just taking you back to the potential equivalence or not of the Fourteenth and the Official 109 Fifth Amendment. I guess I -- I -- do -- do you concede that there are principles of interstate federalism and sovereignty that are at play in the Fourteenth Amendment context that are not apposite in the Fifth Amendment context?
Mitchell R. Berger: The -- the answer is yes but only in the imposed jurisdiction context, not here in the consent jurisdiction context. The -- the plurality opinion authored by Justice Gorsuch and the concurring opinion authored by Justice Alito in Mallory, which counts to five, a number I've heard earlier today, said federalism does not matter for consent jurisdiction. So, yes, federalism matters for imposed jurisdiction but not for consent jurisdiction. And why? Footnote 10 in Bauxites gives you the answer. It says someone may subject himself to powers from which you would otherwise be free, which is why federalism doesn't care if you consent to jurisdiction.
Justice Jackson: So you would have us have a Fifth Amendment doctrine that is parallel to the Fourteenth Amendment in the consent realm with respect to consent? That's the only Official 110 parallelism that you --
Mitchell R. Berger: I -- I think they're identical, Justice Jackson, in the consent realm. I think that is what five members of the this Court said in Mallory, that -- that due process federalism concerns do not arise in consent jurisdiction, however the --
Justice Jackson: And so then you win why? If -- if -- if we agree with you on that, that consent is the same in the two areas, then you say, to the extent that this statute was one that imposed or deemed consent, then we're in that realm and you win because?
Mitchell R. Berger: Because of the test -- and I don't think the Court needs a new test for consent jurisdiction, which is that Bauxites tells us the defendants' actions must support a presumption of legal submission to the jurisdiction of the court. And our argument below was neither prong of the PSJVTA as applied in this case reflects submission. Payments made overseas, outside of the antecedent sovereign authority of the United States, right? The United States can't say to Palestine do or don't make that payment. That Official 111 is not submission to a U.S. forum. And, indeed, that's what the court of appeals said. And, as applied in this case, where our contention, unresolved in the courts of appeals has been, is that all of our conduct has -- is U.N.-related conduct and has previously been held to be insufficient to support jurisdiction. And the United States acquiesced in the Southern District of New York decision in the 1980s in U.S. versus PLO that U.N. activity can't support jurisdiction. All of those mean that when we continue to be engaged in U.N. and ancillary activities, we haven't submitted to jurisdiction. No new standard is required. And, for more than 40 years, the Bauxites submission standard, it hasn't turned the -- the lower courts upside down. The courts know how to apply it. It's a facts-and-circumstances test. And the lower courts have been perfectly comfortable with Bauxites. And not only that, all four opinions of Mallory in this Court cited the Bauxites submission standard. It's good law. It remains good law. It shows Official 112 why we win. If -- I will try to burn quickly through a couple of other points. I think Justice Gorsuch asked if we were operating an office extra-legally. I think Mr. Kneedler very helpfully gave the answer, which is there's no question of extra-legal. We could debate all day long whether what we're doing is legal or not, but the fact of the matter is the statute simply excludes it. So, from a constitutional avoidance basis, you don't need to reach the due process question. If the statute says this conduct does not support jurisdiction, that's the end of the story. The fact that the U.S. activities prong remains unadjudicated, as I think both sets of Petitioners' counsel acknowledge, you know, our position is that this was an as-applied case that looked at various activity, but, if there's an open question as to what the ancillary activities exclusion means, then that's a matter for remand because, as I've heard from time to time, this is a court of review and not first view, and so that's grist for the mill for the court of appeals. Official 113 I mentioned the OLC opinions. And I guess I would just close with this thought, which is, whether we're searching for historical meaning, whether we're searching for what did the 1st Congress think about jurisdiction, I would -- and I would respectfully say the one analogy that drives all the answers is pirates, right? Piracy has been illegal from the founding. The alien tort statute incorporated it. Nobody from the founding has thought that Congress could say not only do we prohibit piracy, but tell you what, since we've prohibited piracy and because prescriptive jurisdiction and adjudicative jurisdiction is the same, we don't need to go -- to bother -- all that trouble of finding, extraditing, or renditioning the pirate. We'll just try him in absentia. That's never been the law and that's because due process requires something more than what Congress prescribes.
Justice Kagan: You -- you might think, though, that what that suggests is that there's an obligation to provide notice and an opportunity to be heard without going as far as Official 114 requiring minimum contacts in the way we've done under the Fourteenth Amendment.
Mitchell R. Berger: Yeah, and I -- I would -- I would respectfully say that -- that it's not just an alien tort statute issue, but, in all of this Court's extraterritorial application issues, there's been an observation, including by Justice Sotomayor, that -- that we're dealing with a whole different problem, which is everybody obviously had notice in -- saw a case like RJR Nabisco about what the statute purported to do, but Justice Sotomayor's opinion noted that, okay, but we still have a whole different kettle of fish to deal with in terms of personal jurisdiction. So it's more than notice. And I think that's why, even if you want to give full significance to Picquet -- and then I promise I'll shut up and sit down -- what the Court said in Toland, what Justice Story said in Toland, take a look at page 613, it said we have to deal separately with notice and regular -- regular personal appearance in court. So even Justice Story thought there was something more than notice in the form of a summons. Official 115 And jurisdiction, he likewise referred separately to jurisdiction and process at page 613. They are different things, and they have been different things from the founding.
Justice Alito: What exactly is the unfairness in -- in this case?
Mitchell R. Berger: In --
Justice Alito: It's the -- it's too burdensome to litigate this in New York, where the PA and the PLO conduct some activities?
Mitchell R. Berger: Well, so I --
Justice Alito: What's the unfairness?
Mitchell R. Berger: The unfairness, as we said -- I think you'll see it at pages either 56 or 57 to 58 of our Second Circuit brief in full -- is the notion that we can be divested of a liberty interest for -- and selectively at that, for being divested of a liberty interest for engaging in activity previously held constitutionally insufficient to support jurisdiction. And a second point if I may, which is, if you look at Fourteenth --
Justice Alito: That -- that doesn't sound like a personal jurisdiction argument. Official 116 But anyway, go ahead.
Mitchell R. Berger: So -- but, when you look at all the traditional Fourteenth Amendment jurisprudence of this Court, it's got two prongs, right? It has minimum contacts and then it has reasonableness. And so, when we get the commentary like in the dissent at the -- from rehearing en banc, that it's not inconvenient for us to go from the PLO's U.N. mission in the East 60s to the Southern District of New York, that misses the point. That deals with the reasonableness prong. But that's prong two. Prong one is, is there reciprocal fairness sufficient to support jurisdiction in the form of minimum contacts? That's the unfairness, which is -- you ever been on a train where it's sitting still and another train's moving and you have the impression you're moving backwards? That's what Congress keeps doing with these statutes, 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 unconstitutional. And so we'd respectfully ask that this Court affirm the judgment of the court. Official
Justice Alito: Before -- before you sit down, do you think any degree of deference is owed to Congress and the president in -- on -- in this?
Mitchell R. Berger: I -- no more deference than in the context of Holder, where the Court said, sure, we understand their policy judgment, but that does not require us to abdicate the judicial role when it comes to constitutionally protected rights. And that is certainly a, you know, a protected right committed to the judicial branch, is jurisdiction.
Justice Alito: Well, the question wasn't whether there should be judicial abdication but whether there should be any degree of deference. So is there any degree of deference owed or none?
Mitchell R. Berger: I would say, in the context of jurisdictional due process, the answer is none. In the context of another statute that four -- hits four square on these same issues, like the Taylor Force Act, which says, if the Palestinian government continues to make these payments, we will withhold foreign aid, of course, deference is owed in that Official 118 context. But, when it comes to a constitutionally protected right, like jurisdictional due process, no, you don't defer away the protection for that right.
Justice Alito: Thank you.
Chief Justice Roberts: Thank you. Justice Thomas, anything further? Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch, anything further? Justice Kavanaugh? Justice? Justice Jackson? Now you may sit down. Thank you.
Mitchell R. Berger: Thank you, Mr. Chief Justice.
Chief Justice Roberts: Rebuttal, Mr. Kneedler? REBUTTAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE PETITIONER IN CASE 24-
Edwin S. Kneedler: Several points, Mr. Chief Justice. First of all, with respect to Official 119 reciprocal fairness, which I -- which I think counsel's deriving from the minimum contacts, if there are minimum contacts then you're subject to jurisdiction, but under the Fifth Amendment, minimum contacts is not the test. Perhaps some nexus is, but -- and that's because the United States, in the exercise of its powers, is not limited to the territorial jurisdiction of the United States. It could criminalize the pay -- making of these payments, as I had understood Respondents to say at page 30 of their brief. If -- if it could criminalize them, it seems clear that it should be able to count them as a basis for U.S. jurisdiction. But, with -- again, with respect to reciprocal fairness, it's important to bear in mind that the payments being made here are payments to persons who have killed or injured Americans in acts of terrorism abroad. And -- and I think, when one is -- is weighing reciprocal fairness, that basis for jurisdiction hardly seems unfair, particularly since it direct -- is a direct corollary to the lawsuits to which personal jurisdiction attaches, with -- Official 120 which is lawsuits under the ATA, which is designed to protect Americans from -- from terrorism abroad. So, if we're talking about reciprocal fairness, I think this case clearly satisfies it. Now, also, the reciprocal fairness seems to be tied to some sense -- sense of an exchange or a -- a balance on either side. We don't think that that's really comes from Mallory, but, certainly, in the context of the PA and the PLO, it doesn't make sense because we're talking about a 40-year relationship between the two in which fighting terrorism has always been a core part. And to try to find whether there's a bargain or an exchange at one point in time along that continuum of four decades of the relationship just doesn't make sense because Congress's statutes -- and, again, this is its third try to make sure that these lawsuits can be brought -- it's a continuation of a policy over that period of time, and the Court should not focus only on the particular statute in -- in isolation. But coming back to what is at the core Official 121 of this case and, actually, the Court wouldn't have to decide more, and that is that -- that under the Fifth Amendment, Congress and the president made a judgment that is entitled to virtually absolute deference that it is appropriate to subject the PA and the PLO to jurisdiction in this case. Respondents had a chance to avoid that by just stopping those activities, but they didn't. So whether one thinks of that as consent or just an element of -- of fairness or overall suitability, that should count for a lot. The Court should sustain the act of Congress.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:58 a.m., the case was submitted.)