The case has potentially major legal significance for lawsuits under federal law against foreign entities.

It’s been a tough stretch for anti-Israel terrorists. Add to the list a 9–0 loss at the Supreme Court for the PLO and the Palestinian Authority in Fuld v. Palestinian Liberation Organization. The case has potentially major legal significance for lawsuits under federal law against foreign entities.

Fuld is a suit by American victims of PLO terrorism under the Antiterrorism Act of 1990 (ATA), which allows for treble damages suits (i.e., recovering three times the damages suffered) for any U. S. national injured or killed “by reason of an act of international terrorism.” The challenge in suing foreign states and groups in American court is getting jurisdiction over them and, in some cases, overcoming sovereign immunity defenses. Congress has returned several times since 1990 to resolve those defenses by statute, expanding Americans’ rights to sue foreigners over terrorism in specifically defined contexts. One of those laws, the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), allowed the plaintiffs in Fuld to get jurisdiction over the PLO.

The problem: the Fifth and 14th Amendments both guarantee a right to due process of law, the former against violations by the federal government, and the latter against violations by the states. Under the 14th Amendment, the Court since Pennoyer v. Neff (1878) and International Shoe Co. v. Washington (1945) has developed an extensive body of personal jurisdiction law, familiar to every lawyer, which deems it a due process violation to haul a person or entity into a court that doesn’t satisfy one of two types of personal jurisdiction: general jurisdiction or specific jurisdiction. To simplify, general jurisdiction means suing the defendant where the defendant is “at home” — in the case of a corporation, for example, where the company is either incorporated (hello, Delaware) or has its principal place of business. Specific jurisdiction requires “minimum contacts” with the forum state, which is often most easily satisfied by suing in the place where the defendant committed the wrong.

The minimum-contacts formulation is so ingrained that even lawyers tend to forget that it’s judge-made law arising from a specific type of case. Pennoyer arose out of an effort to get jurisdiction in Oregon over a Californian in 1865, at a time when interstate travel and communications were limited and onerous. As Chief Justice John Roberts observed in today’s opinion in Fuld, the origins and growth of the doctrine are rooted in federalism and state sovereignty, which “is bounded by the States’ respective borders. . . . Interstate federalism concerns accordingly may be decisive for Fourteenth Amendment purposes.” The courts have policed those lines so that states don’t drag one another’s residents into inconvenient courts and don’t create international incidents by doing so to foreign businesses — but federal power is different:

These interstate federalism concerns, however, do not apply to limitations under the Fifth Amendment upon the power of the Federal Government and the corollary authority of the federal courts. The Constitution confers upon the Federal Government—and it alone—both nationwide and extraterritorial authority. While the limitations of the Constitution are barriers bordering the States and preventing them from transcending the limits of their authority, there is no equivalent ground for constructing an imaginary constitutional barrier around the exterior confines of the United States for the purpose of shutting that government off from the exertion of powers which inherently belong to it by virtue of its sovereignty. . . .

We observed in [1933], for example, that the geographical limitations on the taxing power of the States under the due process clause of the Fourteenth Amendment do not equivalently restrict the taxing power of the Federal Government, because “[t]he Constitution creates no such relation between the United States and foreign countries as it creates between the States themselves. . . . Given the distinct territorial reach of the Federal Government’s sovereign power, it makes little sense to mechanically import the limitations that the Fourteenth Amendment imposes on the authority of state courts, which is restricted consonant with the States’ more constrained sovereign spheres. [Quotations and citations omitted.]

It would, the Court concluded, be strange to use jurisdictional rules to limit the federal government’s power to perform the core function for which it exists — to protect its citizens from foreign foes:

Of particular salience here, we have also recognized the National Government’s interest in holding accountable those who perpetrate an act of violence against U. S. nationals—who, even when physically outside our borders, remain under the particular protection of American law. . . . So too the National Government’s corresponding authority to make the killing of an American abroad punishable as a federal offense that can be prosecuted in U. S. courts. [Quotations and citations omitted.]

The Court declined to decide what (if any) limits the Fifth Amendment might impose, finding that the PSJVTA was sufficiently narrowly tailored to the federal interest at stake:

It is permissible for the Federal Government to craft a narrow jurisdictional provision that ensures, as part of a broader foreign policy agenda, that Americans injured or killed by acts of terror have an adequate forum in which to vindicate their right to ATA compensation. . . . We will not belabor that the Federal Government has an exceedingly compelling interest, as part of its comprehensive efforts to deter international terrorism, in providing a forum for American victims to hold the perpetrators of such acts accountable. . . . The PSJVTA reasonably ties the assertion of federal jurisdiction over the PLO and PA to conduct that involves the United States and implicates sensitive foreign policy matters within the prerogative of the political branches.

Roberts didn’t have much sympathy for the PLO and the PA, either:

Respondents are sophisticated international organizations that operate billion-dollar budgets and govern a territory recognized as a sovereign state by many other countries. . . . They maintain embassies, missions, and delegations around the world and a longstanding presence in the United States which continues to this day. . . . Nor could it have come as much of a surprise that respondents were haled into U. S. courts in these cases. They have litigated ATA suits here for decades, and in the PSJVTA were put on clear notice—far more than most defendants in the mine-run of litigation—that continuing to engage in certain specified conduct would open them up to potential federal court jurisdiction. [Quotations and citations omitted.]

Continue to engage in certain specified conduct they have, nonetheless.

Earlier in this term, in CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd., the Court ducked the question whether foreign sovereign defendants have Fifth Amendment due process rights that limit personal jurisdiction over them once the statutory jurisdiction provisions of the Foreign Sovereign Immunities Act of 1976 were satisfied. Whatever the answer, today’s decision significantly restricts those rights by eliminating sovereign defendants’ right to invoke the International Shoe minimum-contacts formulation. Justice Clarence Thomas, joined by Justice Neil Gorsuch, argued in his concurrence today that the Fifth Amendment imposes no territorial jurisdictional limits at all on federal courts over foreign entities (certainly not foreign sovereigns) and should not be read to incorporate the later-written limits of the 14th Amendment.