We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization. Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on the relationship between personal jurisdiction, international law and due process, and helps us evaluate the majority opinion and Justice Thomas's concurrence.
We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization. Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on the relationship between personal jurisdiction, international law and due process, and helps us evaluate the majority opinion and Justice Thomas's concurrence.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, not a long delay between this and our previous episode. So, Will, we don't have a lot of follow up and things to talk about, which is probably for the best because it sometimes derails us before we get to the interesting stuff.
Will: Well, we are getting like a dozen Skrmetti emails every day as far as I can tell.
Dan: Yeah. Why is that one so interesting to people?
Will: I think unlike our usual fare, it's a case people have actually heard of and want to know something about.
Dan: Yeah, we usually stay away from those cases, but at this point in the term, we have no choice but to dig in. I don't always love talking about the big social issues, adjacent cases because they're often less interesting as a legal matter. But that one was pretty interesting. So, I was willing to stoop, as were you.
Will: Yeah. Well, this is making me think we should talk about the Texas porn case when it comes out.
Dan: Oh yeah, can I just tell people that we got one of these-- we get all these pitch emails from publicists and we got one from a publicist for an adult film actress who I guess goes around and does a lot of media who wanted to come talk about the show and I texted you and I was just saying, “Hear me out here.” I thought that would have been interesting, but I think I wasn't able to persuade you, you probably correctly, that was maybe not consistent with our brand. Although if listeners disagree, maybe they can chime in.
Will: Do you think she realized we were an audio only medium? [laughs]
Dan: I think hopefully she did because compared to her usual interlocutors, we would have not as much to offer in the visual format. Anything else?
Will: I don't think so. We got a shadow docket ruling. I guess I'm supposed to call it emergency docket now last night in the in Department of Homeland Security v. DVD et al., which is about the pending nationwide injunction against deportations of people to third party countries. These are people who have successfully shown in some way that they shouldn't be deported to the country where they came from. They can in theory be deported to another country if the government can find a country that will take them, but they're supposed to get a chance to prove that too would be a country where they might be tortured and they maybe were not. And the Supreme Court stepped in and stayed that injunction over a 19-page dissent by Justice Sotomayor, Justice Kagan and Justice Jackson. I don't want to talk about it on this show. Maybe we'll come back to it as things accumulate.
There was one issue about this that I saw circulate on Twitter, which is a bunch of people reported this as a sharply divided opinion. And then I saw Derek Muller on Twitter ask, can a 6-3 opinion be sharply divided or are only 5-4 opinions sharply divided? And there was a discussion of, well, now 6-3 is sharply divided.
Dan: Because it tracks the basic ideological division of the court?
Will: Well, I guess that is the implicit argument. You might just say it's because we need to accuse the court of being sharply divided. And so, wherever they're divided, it's sharp.
Dan: What are dully divided cases?
Will: That's when you have the unusual lineups where it's like, “Oh, this is one of those ones where Justice Gorsuch and Justice Jackson are one side and Justice Barrett's on the other side.”
Dan: But doesn't it also require people to not disagree that much, just to be friendly each other?
Will: Yeah, well, it just requires to be the case that we like to talk about and people don't like to hear about. They're dull.
Dan: All right. Well, we are actually going to get to the meat of the episode within about three minutes of beginning, which is maybe a record for us. And surprise, we actually have the rare guest on this episode. So, we are joined by Steve Sachs, who is the Antonin Scalia professor of Law at Harvard Law School where he teaches civil procedure, conflict of laws and seminars on constitutional law and jurisprudence. His research focuses on the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, the history of procedure and private law, and the role of the general common law in the US Legal system. It's a lot of stuff. And he is Will's frequent coauthor and he clerked alongside me at the Supreme Court during October term 2009.
So, someone who I think we can confidently say is a good friend of the show, Steve, can we say that?
Steve: Absolutely. Thank you for having me.
Dan: Thanks for coming on. So, we are going to have Steve talk about a case that he has been following very closely and in which he filed a really interesting Amicus brief, Fuld v, Palestine Liberation Organization. So, maybe to make things easier for me and Will, we're going to give you the duty of introducing our listeners to the case, Steve, if you're willing to do so.
Steve: Sure. So, the Fuld case has been rattling around the legal system for quite a while now. It is antiterrorism case arising out of a number of terrorist acts in Israel in the past few decades in which the Palestine Liberation Organization and the Palestinian Authority were accused of having a role in instigating or rewarding them. And one of these cases went to the jury in 2015 under the Anti-Terrorism Act, which is a statute that Congress passed after the killing of Leon Klinghoffer, an American, aboard a cruise ship, that provides damages for Americans who are killed in acts of terrorism abroad. And the jury awarded quite large damages, which under the statute were increased to $655 million. That's in the first case, the Sokolow case. The Fuld case was filed later by the family of Ari Fuld, and that has not yet gone to trial.
So, the Anti-Terrorism act case, the Sokolow case, was filed 2015 got a jury verdict. But the problem was a question of personal jurisdiction. So, ordinarily, federal courts are only able to hear cases against certain kinds of defendants. The defendant has to be within the power of the court in some way. And even though the Anti-Terrorism Act has some jurisdictional provisions, the Second Circuit said this is outside the court's personal jurisdiction. Now, most of the time, when you have a personal jurisdiction case, and the way we teach it in civil procedure class, it's all about states. It's about what states can do, what defendants can be brought before a state court. And in the federal system, there's a Civil Rule 4(k)(1)(A) that says most of the time the federal court would just put on its state hat.
So, if it's a federal court in New York, pretend that you're a New York state court, could you drag this defendant before you, and if the answer is yes, go ahead, and if not, don't.
Dan: Which is weird, by the way. I remember reading your article about how Congress can fix personal jurisdiction. And I think you pointed out that something that's a choice. And why do we have that rule? What's the history of that?
Steve: So, the history is a little complicated. It used to be district by district. It used to be that you had to serve process within your own district because that's how far your writ ran. Later, they allowed you to serve process in a broader way and have it count essentially, if the state would have had the same ability to hail someone into court. And the reason why it's at least that broad is the idea that you don't want a situation where someone files in state court. It gets removed. And then we say, “Oh my gosh, they can't hear the case anymore because they're outside the jurisdiction.” It makes sense to say that whatever the states can do, the federal courts should be able to do at least that much.
But the idea had been venue rule that we don't want the federal courts. You don't want the case in Alaska to involve things that are going on in Florida. So, why not just have most of the time the federal personal jurisdiction track, State personal jurisdiction. But there are times when we say we don't want that. So, for certain kinds of bankruptcy cases or ERISA cases or other kinds of cases, they have what are called nationwide service of process statutes that allow the federal courts to go a little bit broader and drag defendants in that a state court in the same state wouldn't have been able to do.
Steve: And one of these provisions is the one at issue here in the Anti-Terrorism Act, which says, “Look, if you harm an American abroad in an act of terrorism, we're going to have you litigate in the US whether you have any other US connections or not.”
Dan: And whether you've consented or not.
Steve: Yeah, whether you've consented or not doesn't matter, you've got to be here.
Dan: Is this pretty unusual?
Steve: It is pretty unusual. I mean, there are plenty of statutes that do this. There are antitrust statutes, there are securities laws. I mean, there are lots of situations where someone could easily affect the US without affecting a particular state. So, if you're sitting in Australia and you try and corner the world silver market, as my understanding has happened once, that could be a problem for the antitrust laws, even if it's not targeted at the particular. It's not like against the Chicago Mercantile Exchange or something. There's no particular state that you're going after, but Congress still cares about it. And so, they're going to say, “Hey, if you try doing this, we're going to drag you into federal court.”
Dan: Maybe this is getting ahead of ourselves. But is that hypo situation where it's at least possible that no individual state would have authority to hail that defendant into court?
Steve: Yeah. There's a separate provision which is called 4(k)(2) in the civil rules to deal with situations where you've got a federal claim and no state could hear the case. And in those situations, you can hear them in federal court so long as the Constitution and laws of the United States permit it. And the court has never said when the Constitution and laws of the United States permit it. So that's just a giant question mark. Because, of course, whereas states are limited by the Fourteenth Amendment, which is where most of the personal jurisdiction litigation has taken place, the federal courts are primarily limited by the Fifth Amendment's Due Process Clause.
And the court has for 200 years reserved the question exactly what limits the Fifth Amendment Due Process Clause places on a federal court's ability to drag a defendant in and have personal jurisdiction over that defendant.
Dan: And were you hoping were going to get the conclusive answer to that question in this case?
Steve: Sort of. In the sense for full disclosure, I had written an amicus brief in this case, and as I argued, and this is my view, I don't think the court had to give us a crisp account of here is exactly what the Fifth Amendment rule is in all cases whatsoever. I do think it would have been helpful to clarify things a little, and we did get a little bit of clarification, but I don't think they had to solve every problem at once.
Will: So, do we agree that if the state courts of New York tried to hear this case under current precedent, they would not be allowed to. They would be told under International Shoe or whatever these things in the Fourteeth Amendment, it's unconstitutional for you to haul the PLO into court.
Steve: Right. So, there's a case called Walden v. Fiore involving someone who was a Nevadan who had money taken away from her in an airport in Georgia. And the court held that Nevada, and thus the district of Nevada under 4(k)(1)(A) couldn't hear the case because it had no connection with Nevada other than the fact that's where the plaintiff was from. So, if something bad happens to you outside your state, the defendant didn't do anything to Nevada, they just did it to you. And so therefore, a state could not hear this case just on the ground that, “Oh, this is a New Yorker who has been injured.” And in this case, that's why Congress passed all these statutes. There's not just the anti-terrorism act. There's also a second statute once the Second Circuit had said no, they passed the Anti-Terrorism Clarification Act to say, “We will deem the defendant to have consented if they do various things in the U.S.”
The Second Circuit again said, “That's not good enough.” And so, Congress again passed a third act that named these defendants in particular the PLO and the PA to say, “If you do certain things, you maintain an office here, or you engage in what's been called the pay for slay policy, where you pay imprisoned terrorists or their families for attacks on a US national, we will deem that to be consent to personal jurisdiction.” And so now the question is, is any one of these three statutes adequate to give the federal courts jurisdiction in the case?
Dan: And so let me just thank you for mentioning Walden, a case near and dear to my heart, because when I was in private practice, I drafted the petition for cert and the merits briefing in that case on the winning side. So, perhaps one of my favorite Supreme Court cases of all time for that reason.
Will: [laughs] Okay, so under Walden, Nevada does not have a constitutional interest in protecting Nevadans abroad, so to speak, outside of Nevada, and New York does not have an interest in protecting New Yorkers abroad. But does the United States have an interest in protecting U.S. citizens abroad?
Dan: Yeah.
Steve: Right. So, as I put it in amicus brief, part of the question before the court is whether the United States is just one big state. So, if it were one big state, then it would be bound by Walden the same way. It's like, “Okay, the US Is territorially larger,” but if the bad thing that happened to you was outside the US under the terms of Walden, if they didn't go to the US or send anything to the US or in some way attack the US if they just attacked an American outside our borders, that wouldn't be good enough. Indeed, it seems the best way to read Walden is that even if you had a T-shirt that said, “I am from Nevada,” and the person in Georgia says, “What? I hate Nevadans” and just decks you. That's not good enough for Nevada to call them into court because they didn't do anything that was subject to Nevada's sovereign power. They were just hitting someone in the face in Georgia.
Dan: Even if there was, say, an organized terror campaign directed at Nevadans, you think that would clearly not be enough.
Steve: I think that the terms of Walden do not account for that. So, they say that's a contact with the defendants. It's not a contact with Nevada. Now, maybe it would be different if they're trying to influence Nevadan policy. So, if someone takes a Nevadan hostage and says, “Unless the legislature prohibits gambling in the next two weeks,” under that situation, maybe you're trying to send something, a implicit message into Nevada. But if you're merely targeting a Nevadan, qua Nevadan, that's not good enough. And here there was no separate allegation that the attacks were specifically targeting Americans. They killed and injured Americans whose families are bringing the lawsuits, but they were not specifically aimed at Americans per se. And one question is why that matters. Because again, unless it was done with an intent to influence U.S. policy, it's not clear that it would trigger Walden anyway.
Again, if the US were just one big state, it would be impossible to exercise jurisdiction, even when it's done out of anti-American bias.
Dan: So, if we're good on the setup, we are going to get an opinion by Chief Justice Roberts. But I don't know what order to go in, but we might just have you, Steve, explain your view of the best way to resolve this case, and then we can actually see how the Court did, and maybe we can give it a letter grade compared to that standard.
Steve: So, part of the question is, what's the right standard for review? What's the right constitutional rule? For a long time, since 1945, the court has approached these questions under International Shoe, which is a holding under the Fourteeth Amendment Due Process Clause. They've said that requires us to respect traditional notions of fair play and substantial justice. And they've derived from that formula, which is admittedly vague, two kinds of jurisdiction. General jurisdiction for people who are at home in a particular jurisdiction where you can hear any case against them whatsoever, and specific jurisdiction which has to arise out of or relate to specific minimum contacts that you have with that jurisdiction. And that clearly wouldn't have been satisfied here, because the PLO and the PA, even if they have affairs in the United States, they don't involve these cases.
The thing is, though, we have had personal jurisdiction cases well before International Shoe, well before Pennoyer v. Neff, well before the Fourteeth Amendment, even before the founding, there were personal jurisdiction cases where one court would have to decide whether the judgment of another state court was valid. And for those purposes, they would use international law. They would say, “Okay, there are some international standards.”
Dan: And so, this was coming up collaterally.
Steve: Yes, it would be collateral review. So, you get a judgment in one state and then try and enforce it in another state. And the other state court would say, “Well, do we have to listen to what they do? If they have some crazy method of jurisdiction that isn't the international standard, do we even have to pay attention to that court's judgment?” And after the Constitution, under the Full Faith and Credit Clause, courts would still say, “Yes, we've got to give a judgment, full faith and credit, but only if it's a real judgment.” And to know that, we have to know is this the sort of thing that state could have done under international law. And as I've argued in a paper called Pennoyer Was Right, I think Pennoyer was right to say that the Fourteeth Amendment gives some federal teeth to these standards. It doesn't create the standards. The standards were around beforehand. It doesn't constitutionalize them, doesn't fix them in amber.
It just says, “Look, you need jurisdiction for this piece of paper to really be a lawful judgment. You need the legal power to decide the case.” And so, we got to figure out what bases that can come from. And so, if a state says, “We're going to order around this party, we need to know what gives them the power to do that.” And so, in general, those rules come from general and international law. So Pennoyer was saying, “You can't order around Mr. Neff when he's off in California because you, Oregon, didn't have any basis for doing that under the prevailing international standards.
Will: So, if the Fourteeth Amendment gives teeth to that international law, it's the Fourteeth Amendment's Due Process Clause that does that?
Steve: Yeah. So, the way that the court reasoned in Pennoyer, which I think is correct, is that whatever other provisions, the Fourteeth Amendment would also apply. If there is a judgment against you and the state is going to take away your property on the basis of that judgment that judgment has to be due process of law. It has to be a valid judgment. So, if it's a void judgment, if it's a judgment without jurisdiction that has no legal power for a state to take away your stuff based on a void judgment, well, that's not due process of property without due process of law.
Dan: Okay. And just to linger on the state context for a minute, if the state has its own statute that just says, “We get to exercise jurisdiction,” is that sufficient to displace the background international law rules, or do states have no power to do that?
Steve: It would have been within their own courts. So, states all the time overrode the international law rules. I mean, this was absolutely common, but it only worked within their own courts. Every other court would say, “Hey, we don't have to follow that.” Now, maybe they would out of comity, or if their legislature told them to. But in general, they didn't have to follow what another state did. If that exercise of jurisdiction was beyond the international rules.
Will: But then after the Due Process Clause, why isn't it the same? Why wouldn't we still say, “Well, look, the court had jurisdiction by its own terms.” And so--
Steve: And so, in the same way, federal courts, even without Due Process Clause whenever the judgment was brought in collaterally. If a federal court was asked to enforce a state judgment, they'd say, “Look, we agree the state court did what it was supposed to do under its own legislature,” but its own legislature was going beyond its actual powers. So even though their court was obliged to listen to their own legislature, we're a court of a different sovereignty. We can look at this for ourselves in the same way that they would look at lots of general law questions independently. They'd say, “Look, you guys thought that was okay, but we get to take an independent view.” And so, we get to say, is this a valid judgment or not? And if the answer is no, we won't enforce it.
What Pennoyer does is it now gives a route to direct review because every time the state renders a judgment like that and you go straight to the Supremes, you can say, “They're going to take away my property under this judgment that isn't really a valid judgment as you see it. And at the time at Pennoyer, there are cases, like there's a case in the California Supreme Court where they say, “Look, we have this view, what international law permits and what our legislature says, but the Supreme Court isn't going to listen to us and they're going to decide under their own view of what the appropriate standards are, and we're going to lose. So, let's not buy ourselves a reversal. Let's do what they think jurisdiction permits.
And that was the origin of the modern approach, which is even state courts will say, “I know our legislature said we get to have jurisdiction here, but we know that's going to be reversed in Due Process Clause, so we shouldn't do it.” And over time, people just associated these rules with due process, as if the Fourteeth Amendment contained all these rules inside itself, as opposed to just being a vehicle for getting this international law dispute into a federal court.
Dan: And again, maybe this is getting ahead of ourselves. But if the federal court has a federal law rule that displaces the background principles of general international law, that would trump in federal court. Is that correct?
Steve: Yeah. So, it's just like a state court with the state law in front of it. So, the congress has said, “yeah, we know what the international law is. We want you to do this.” There are cases going way back to Justice Story where they say, “Yeah, that would be totally contrary to international law. We might have to summon a defendant from France or Russia halfway around the globe. But if congress said so, we would be bound to follow it and proceed upon the law. So that would be our job.” And there was no picture of a Fifth Amendment problem there because there was jurisdiction. So, the Fifth Amendment never got involved. Congress said there was jurisdiction. There's no reason to look for it anywhere else.
Will: So, is this going to be a general proposition about states and international law generally? Like there's that old fight between Harold Koh and friend of the show Jack Goldsmith and my colleague Curt Bradley about whether states can violate customary international law if the states ban whatever they don't provide enough labor rights, even though customary international law requires everybody to have a minimum wage of $20 an hour or something? Does the same idea apply that the Supreme Court will apply customary international law to invalidate state statutes in general?
Steve: Sometimes. So, I think a lot of this depends on stuff like the Rules of Decision Act, which says you've got to use state laws as rules of decision in cases where they apply. And so, a lot of these fights, are these the cases where they apply? Is this something that a state gets to decide for itself? So, on the one hand, it might be, and this gets into other questions about choice of law and Klaxon v. Stentor and all those wonderful lines of cases, but it might be that if New Jersey just announces the speed limit in Montana is henceforth 55, a federal court would just say, “We don't care New Jersey. Your laws don't apply here. This is not a case where your laws apply.”
Whereas if New Jersey says, “The death penalty is okay,” that might be the sort of thing that's clearly within New Jersey's remit, even if we think they're overriding international law by doing so. So, some international law rules are allocating legislative jurisdiction, and some of them are just rules of substantive law. And so, it might be that something like labor rules or, one of the many things that have been attributed to customary international law, we'd say, “Yes, maybe we'd read it narrowly. We'd use the Charming Betsy Canon. We assume that they're not overriding it,” but once we know they are, that might be within their remit to override. Whereas if they try and say, “We now own Alaska,” we'd just be like, “Look, that's not how the law of sovereign borders works. You don't get to do that.”
Dan: Okay. And so, keeping things kind of general for the moment, before we get into the specifics of how you think this case might have been decided, does that mean that Congress, if it just passes a statute saying, “Everybody in Australia is subject to the general jurisdiction of United States federal courts,” that's fine. That's the end of the inquiry.
Steve: So, what I would say is that's an enumerated powers question. The question you would ask is not the Fifth Amendment question of, is that consistent with due process of law? The question is, where does Congress get the power to do that in the first place? And if there were a clause of the Constitution saying, “Congress has enumerated power to make Australians,” then there'd be no problem. So, the real question is just how do we connect up this statute to the enumerated powers of Congress? Now, there's a broader way-- [crosstalk]
Dan: The Fifth Amendment Due Process Clause is doing no work in that situation.
Steve: Right. Because if you don't have jurisdiction as a matter of enumerated powers, then we never get to the Fifth Amendment question. And if you do have jurisdiction, then the Fifth Amendment satisfies. So, there's no independent work that it's doing. It's merely a jurisdiction, yes/no test. And if jurisdiction is already provided by other sources of law, it has no independent work to do. The 14th Amendment on my picture does have independent work to do, because sometimes a state will disagree with what the federal courts think the rules of jurisdiction are. And so, then it actually matters that we're moving it from one forum to another. Fifth Amendment's all within a federal forum. We never get that kind of problem posed. So, you could have a very broad view of the enumerated power. It could be that any rule that is bringing Article III into execution is okay under the Necessary and Proper Clause.
So, anytime you got a diversity suit with somebody in Australia, you can haul them into our courts. And that's what Story seems to be suggesting. Like maybe that would be okay. Or you could say, “Well, as an enumerated powers matter, that's a little aggressive. But so long as you're dealing with, I don't know, like a contract involving Americans or something that we get to regulate under the commerce power or something, then that would be something. As long as there's substantive rule of decision is federal law, then we get to bring you in. And that's the case here. The court doesn't address but assumes for purposes of argument that the US is entitled to forbid attacks on Americans abroad under its power to define and punish offenses against the law of nations.
Will: I was about to ask that. So, you think the enumerated power that best supports the Antiterrorism Act is the Define and Punish Clause.
Steve: So, the Chief Justice mentions that at one point it might also be commerce, but I don't have a fully fleshed out theory of commerce, so I'm not entirely sure whether that would count as commerce with foreign nations. But it might be necessary and proper to that. If we give people passports and let them go around, then we get to protect them and so on.
Will: Right. I mean, it's a little hard given that the court has said that violence against women isn't supported by the interstate commerce power. It's a little hard to say that violence against Americans is supported by the foreign commerce power.
Steve: Right. Though I wonder if it would be different if it were violence against women using interstate transportation or in states other than their own or something like that. At least those questions would get more complicated.
Will: Yeah, okay.
Dan: And so just sticking with the define and punish clause is interesting, but again, not really the question in the case that's a clause that explicitly refers to the law of nations. You've talked in general about how international law rules are defeasible. Is that a situation where we would just say congress gets to determine what its view of the law of nations is, or do courts get to interpret what they think the law of nations is in evaluating whether Congress has acted consistent with its enumerated powers?
Steve: Well, the power is not just to punish offenses against the law of nations, but also to define them. So, it might be that there's some laugh test involved of is this plausibly an offense against the law of nations? But if Congress says it is, I imagine there'd be a fair bit of deference. And if Congress says, “Look, these are American citizens, they get safe conduct abroad, and you're attacking them.” And I think it would be unlikely to me that a court would strike that down as beyond Congress's power. But in any case, they didn't need to decide that.
Dan: I mean, you could redefine differently. You could say, “Well, I can define an offense, and it has to be an offense against the law of nations. Or you could define what it means for an offense to be against the law of nations.”
Steve: They can fill in the tiny details of what is piracy but they can't create a new crime of mopery that we've never heard of or something.
Will: James Madison defended Congress's power to define felonies committed on the high seas on the grounds that felony was a term of loose signification, even in the common law of England, and therefore the power of defining felonies was in every respect necessary and proper. I think the idea, like his liquidation idea was there's probably something that was outside even the loose signification, but within that Congress of the date.
Dan: I like that phrase. That kind of reminds me of phrase you introduced a while back, “Directionally” right, when something is kind of vaguely correct. I like that. I'm going to try to find ways to use that in my day-to-day life outside of the legal context.
Will: Good. All right. Should we talk about the case?
Steve: Sure thing.
[laughter]
Dan: Yes. This is our trademark, Steve. It takes a long time to actually get to the thing. And we didn't get derailed by random things, but we did get derailed on a bunch of issues that this case is maybe not directly about.
Will: No, this is not derailing. I'm just saying we now have the truth about the Due Process Clause and personal jurisdiction.
Dan: The truth not necessarily the truth endorsed by the podcast, qua podcast, but--
Will: I can get majority vote [crosstalk] for right now [laughs].
Dan: We have a unanimity rule.
Will: Really?
Steve: I'm not sure I count.
Will: [laughs] I just need half a vote from Steve. I can get there. Okay. But then we can compare it to the Court's claims about the Due Process Clause and see how they stack up, right?
Steve: Sure. So, the Court starts off by making clear, “Look, this is a Fifth Amendment case, not a Fourteeth Amendment case,” and that it is not immediately obvious that the Fifth and Fourteeth Amendments mean the same thing. So, we have a 7-2 ruling, it's a unanimous ruling, but there are seven votes for the majority opinion and separate concurrence by Justice Thomas in which Justice Gorsuch joins for part. We'll talk about that. But the Chief Justice, per the Court, starts off by distinguishing the Fifth and Fourteeth Amendment frameworks and says that the considerations of Fourteeth Amendment really do involve state sovereignty. There had been a line of cases, especially Insurance Corp of Ireland, that really emphasized the idea of due process, of protecting individual liberty, which was understood as a fairness concern. Is this too much of a burden on the defendant?
And here the Court, I think for the first time adopts as a sort of majority rule language from earlier plurality cases that said, “No, no, no. Sovereignty is really important too,” and this is an independent factor in the analysis. And so, in the Fourteeth Amendment circumstance, we're worried about interstate federalism, which states are stepping on each other's toes, here that's not an issue. So, there's no guarantee that we'd have to use the exact same analysis for the Fifth Amendment that we use for the Fourteeth. They do not embark on an originalist analysis of what the Fifth Amendment would require.
This is not starting from first principles opinion. Instead, they say, “In general, we defer to the federal government on questions of foreign affairs. This is a very narrow statute. It's limited to two individual defendants. It's limited to very specific foreign affairs worries of people attacking our nationals abroad in acts of terrorism.” And so, the court concludes that it is permissible for the federal government to craft a narrow jurisdictional provision of this kind.
Dan: And can I just make sure I understand, when the court is explaining that this is fine for those reasons, is it explicating the Fifth Amendment, or is it just saying, “Here's why we don't care about this,” or, “Here's why this doesn't seem like a big deal.”
Steve: It does claim to be explicating the Fifth Amendment, but it's saying that this statute ties federal jurisdiction to conduct closely related to the United States, implicates important foreign policy concerns. And so, the kinds of fairness and sovereignty considerations that are at issue in due process generally would not be implicated here. They're not laying down a precise test, but they're saying, “Look, here are the things we're worried about, fairness and sovereignty.” And certainly, on the sovereignty prong, they're not worried here because federal government has lots of foreign affairs powers. And this seems pretty within their wheelhouse. And then later they ask, “Well, is this reasonable? Is it fair to the defendants?” And they say, “Oh, yeah, absolutely.” They knew exactly what they were doing when they paid for the terrorist attacks.
They knew exactly what they were doing when they conducted activities here. They have a ton of lawyers and ton of-- I mean, this is not a difficult case as a matter of due process fairness. So, in some sense, this is a decision for this case only. But that's partly because the statutes that were written address these defendants only. So, we don't know what would happen in another case with a broader statute.
Will: And if I understand it, the court doesn't even commit to the view there are any limits, right?
Steve: No.
Will: It's possible it's construing that this complies with Fifth Amendment limits that don't exist.
Steve: Yes, it says if there are Fifth Amendment limits, they would be like this and they would be broader than what this case involves. But it doesn't say that there are such limits squarely. And it doesn't rule out what it calls the maximalist theory of really that it's just a question of enumerated power.
Dan: Which is your view.
Steve: That's the view I think is right.
Dan: So, what the Court has said thus far is not inconsistent with any of your beliefs, although you would just say a lot of this analysis is unnecessary.
Steve: I think that's right.
Will: Right. I say Steve Sachs might be right, but we don't have to decide whether he's right in this case, because even if he's not right, this is still okay.
Steve: Well, I think they would frame more as Justice Thomas and Gorsuch might be right, [laughs] but according to the majority, that's not a question that needs to be resolved here. Because whatever plausible limits there are on Fifth Amendment personal jurisdiction, this case does not transgress them.
Dan: And so, your amicus brief said you don't need to go all the way. Did you want them to go further?
Steve: What I would have liked would have been a rule that at the very least, when the conduct in question can constitutionally be regulated by federal law, it's okay for Congress to extend federal jurisdiction there. There might be cases where that's not the case. So, again, imagine a diversity suit. So, an American goes to Paris, gets in a car accident on the streets of Paris, has a diversity suit against a French citizen. Justice Story would have said, “Yeah, you can drag that person to New York courts, federal court in New York.” I don't think the court had to go that far. It could have just said, “Look, this is involving a federal claim. There's no assertion that the federal claim exceeds Congress's enumerated power to regulate.” That is good enough.
Dan: Whichconstitutional provision might it be violating, that would be a narrower due process conception that's broader than your conception.
Steve: I think it would really be more of a necessary and proper question. Is it really necessary and proper to carrying the diversity clause into effect? Because of course, the Necessary and Proper Clause applies to the powers vested in any of the departments. So, is it necessary and proper to carrying the judicial power into effect to have the Paris car accident case here? That might be a hard question. I don't know if it is, but that's very different from the question, is it necessary and proper to carry the Anti-Terrorism Act powers into effect to have those cases here? That might be an easier question to answer.
In the end, the Court doesn't answer either of those questions because it says, “Look, this is so clearly within the heartland of stuff the federal government is allowed to do that we don't even need to worry about this.” And again, they're still thinking of it in due process terms. They have not held that this is really an enumerated powers case. They're talking about it as a question of what is consistent with Fifth Amendment due process.
Dan: And there's this bit at the end. I think this is 3B, where the court says, “Look, maybe we're not saying that Fifth Amendment incorporates something that looks like a minimum context analysis, but it would be okay if it did under these facts.”
Steve: Yeah, if there's a reasonableness inquiry, which is part of the specific jurisdiction test, this would pass it with flying colors. There's no lack of notice. Everybody knew this was going to happen. These are organizations with billion-dollar budgets. This is not a problem where the defendant is really being imposed upon by the exercise of jurisdiction.
Dan: So, what's your intuition? And we don't know for certain, but if the Court had been required to answer the maximalist question, how many votes? Because we know two votes. How many votes do you think the Sachs position might the Court have?
Steve: Well, I think that's hard to say because one interesting feature of the decision is it doesn't have a theory that it puts forward. And I think that's because I'm not sure the seven folks joining the majority opinion share a theory.
Dan: That seems like it must be the case.
Steve: Some of them might be willing to entertain a broader theory in some cases. Some of them might not. I mean, so, for example, Justice Barrett in the Mallory case was hesitant to adopt a broader theory, given that they, in her view, didn't need to. And that International Shoe was not directly challenged. Justice Kagan, at least in other cases in the Ford case, has expressed some aversion to revisiting International Shoe and the legacy of looking to the words of the Due Process Clause for the rules of jurisdiction. I think that's really hard to do as an original matter, but I don't know that there are five votes on the Court to require it to be done as an original matter. So, we'd have to see.
Will: But thetimes they'd have to do it, I guess, are if you just imagine a statute that's not narrowly drafted, that's not limited only to individual organizations or something, maybe the statute would say something like, in any case where a federal statute is within the scope of Congress's enumerated powers, there shall also be worldwide service process or worldwide jurisdiction.
Steve: Right. Or any diversity case, even if it's about French law, it's got to be. It can be brought in American courts. I mean, that's obviously very unlikely to have, in part because as the government was worried here, “Look, if we enact a statute like that, other countries are going to do that to us. And we don't want our car accidents with a Frenchman being brought up in France,” although that was French law for a while, at least.
Will: Maybe it'd be done as a revenue raising measure. So, we'd say the filing fees in these cases should be $100,000.
[laughter]
Steve: Exactly. Well, another thing they might do, though, would be reciprocity. So, there are some countries that have had a rule at various times, say, “Look, if we flipped all the nationalities and you guys would subject our guy to jurisdiction in your country, we'll do the same to you.” And that is a tool of foreign policy to make people have more reasonable jurisdictional rules. But it's a penalty provision. But it requires there to be very few teeth in the Due Process Clause because it would involve all sorts of crazy exercises of jurisdiction with no better justification than they would have done it to us. And so, I think that there's nothing in the Constitution that stops Congress from doing that should they think it a good idea.
But that would really force the court to articulate, is there a feature of due process that imposes some substantive limits, or is due process really just a test for do you have valid jurisdiction or not? And the source of valid jurisdiction is going to be somewhere else in the Constitution.
Will: And my instinct is there would be five votes to uphold a universal reciprocity statute. Do you agree? Disagree?
Steve: I think there probably would, but I think it would require some really interesting fancy dancing to see how is this going to comply with International Shoe or with the existing summaries of Fifth Amendment due process. Because it's not obvious that the jurisdiction in that case would be fair or would involve any exercise of the sovereign authority of the United States.
Dan: And so, Will. Do you know who the five are? Is it the conservatives minus the Chief, or you just think you could get to five one way or another?
Will: I was going to include the Chief and Kavanaugh, and then I was looking for my fifth, which would probably be Barrett at that point. I guess they might have more, but I'm imagining, I mean, I agree with the fancy dancing. Each opinion would have to say something like, there may or may not be limits under the Fifth Amendment, but this statute complies with them. After all, this is a statute. It was enacted by Congress [laughs] to deal with foreign policy, and it also has some features. And you just describe whatever features the statute contained and say these features make constitutional, a little like this decision.
Dan: So, right now we've been contrasting the Sachsian hardcore originalist view with the squishy fairness Justice Brennan view. But is there a third position? Are there originalists who reject your view, Steve, that would maybe persuade a Justice Barrett type?
Steve: So, certainly there are lots of positions out there. There are folks who say that this is all federal common law, as if that were a thing. There are folks who say that actually the Due Process Clause is just about service of process and has nothing even to say about state personal jurisdiction in the Fourteeth Amendment context. I mean, there are folks with lots of different views of this. I mean, Justice Gorsuch and Justice Thomas have in this opinion at least suggested some affinity for the Pennoyer-esque view that this really is about general law and international law. I don't think any of the other Justices have gone on record in that way.
Justice Alito in his Mallory concurrence suggested that these are the kinds of rules of state authority that we've been trying to find somewhere and often they get squirreled away and so pigeonholed into the Due Process Clause. So, I think that suggests that he might be willing in an appropriate case to revisit exactly how International Shoe stuck them in there, but I really don't know.
Dan: Right. So, there's a concurrence to get to, obviously. But might you be willing to letter grade the majority opinion? [Steve laughs] Or you could use the Harvard simplified grading scale.
Steve: Fair enough. I mean, maybe we'd get a very strong P. I don't know.
Dan: Okay. You're not going to pump it up to an H [Steve laughs] and certainly not a Dean’s scholar.
Steve: Right. So, I think the difficulty here is it's very hard to see what this means in the next case. So, we have a suggestion that in general the federal government really wants to do it. It's going to be okay. But there is not a clear standard coming from the court for this is what Fifth Amendment due process requires. And that's going to matter soon because there are a lot of cases under 4(k)-- I mean, not a lot numerically, but there are cases under 4(k)(2) which again is any federal question that is outside all of the states and that's only limited by the constitution and laws. So, there doesn't need to be a specific federal statute like there are three of them here.
It's just saying any antitrust problem, any securities problem, anything around the world, that's caught by federal law and that no one state has personal jurisdiction over. People are going to need to decide those cases relatively soon. So, it'd be nice to have a relatively clear standard. They didn't need to generate one in this case, but we're just going to have to see what happens in those cases.
Will: One thing that puzzles me, am I right that the SG did not argue for the unlimited jurisdiction of the federal courts that they encouraged the court to do this holding out the possibility?
Steve: Yes, that's right.
Will: Isn't that both contrary to what you think of the-- I mean, it's both contrary to what one and a half members of this podcast think is the correct answer, but it's also contrary to what you would normally think of as the SG's rooting incentives to just say everything the federal government does is constitutional. So why would they do that?
Steve: I was puzzled by that. The ostensible reason given in the brief is that they're worried about retaliation. That if the court comes out and says, “The federal government can subject anybody to personal jurisdiction, whatever they want, other countries are going to do that to us,” which is potentially true. But it leaves out the role for Congress because Congress is actually the one that's deciding. And the Supreme Court in the civil rules with delegated power from Congress, they're the ones actually deciding which specific cases are going to be within the personal jurisdiction of the federal courts. So, when service of process will count, essentially. And so, the possibility of retaliation is really just one of those things for Congress to weigh. And if they think it's a good idea to have a statute that does this to the PLO, then they're not worried that the PLO is going to do it back to us, then doesn't seem like much of a problem.
Will: Although it's possible this is like one of these acoustic separation things. So, what they're really saying is, “Look, whatever Congress does, you should uphold.
[laughter]
You shouldn't say “We can do whatever we want’ in advance because that will feel too threatening,” because people don't understand that Congress is never going to actually do it, especially like this Congress.
Steve: Right. And maybe it would be different if Congress had passed a general statute, especially in place of 4(k)(2). That said, “Here are the circumstances when we think it's okay and here not.” But in general, I don't think that those kinds of considerations are the ones that the court should be looking to. I mean, there are plenty of political actors in the political branches who are capable of dealing with any retaliation. The US has signed the Hague Judgments Convention. There are lots of things that can be done. We haven't ratified it yet. There are lots of things that can be done to try to work things out with other countries. I'm not sure that the Court should be reading the Constitution differently based on that.
Dan: All right. So, we have a concurrence by Justice Thomas, as you noted, is joined in part by Justice Gorsuch. At the outset, I'm guessing you may grade this one slightly higher, if only for the citations to your amicus brief. But why don't you tell us what Justice Thomas says and then maybe tell us if there are ways in which his analysis diverges from yours.
Steve: Sure. So, there are two parts here. Part one is Justice Thomas only. Part two, Justice Gorsuch joins also. Part one raises two preliminary questions that Justice Thomas doesn't resolve, but just notes are still out there. So, one of them is, are the PLO and PA entities that have constitutional rights? So, generally we don't think that foreign sovereigns have constitutional rights. These are they're not sovereigns according to the federal government, but they're government like. They're US territories, which typically are not thought to have constitutional rights as against the federal government. They're not considered persons under the Fifth Amendment. So, the Fifth Amendment says you can't deprive a person of life, liberty or property without due process of law. Well, who's a person? And that's a question that Justice Thomas doesn't resolve, but suggests heavily that these defendants might not qualify. And that's antecedent question to what's dealt with today. And he notes it's still out there. It's not argued by the party. So, he doesn't think they need to resolve it, but he's doubtful, I think it's fair to say.
Dan: What's your view on that?
Steve: I am not sure. There is literature on going both ways. Part of the issue is, in general, there's lots of rules about foreign persons not having constitutional rights under other provisions. So, the Fourth Amendment or the First Amendment doesn't protect a citizen of Mexico in Mexico. So why would the Fifth Amendment apply? I think really the issue here is we're not dealing with a violation of the Constitution that occurs abroad. What's really going on here is can the Southern District of New York grab stuff that belongs to the PLO or the PA? So, if they had a bank account in New York, could they send out the judicial marshal to go grab the money? If it would be a deprivation of property without due process, that would occur here in some sense. And so a judgment that authorizes it shouldn't issue if it would violate that rule.
So, I am not sure what the right answer is because I don't think that these are truly foreign questions, but I do think that it matters whether these are governments or government like enough to no longer count as persons.
Will: Do we know what is the actual legal entity of the PA and the PLO, like the assets that are held in New York? What's on the bank account?
Steve: So, I don't think I have any assets in the United States for [laughs] various reasons. I think those would have been seized by victims of terrorism long ago. But clearly, they have assets in some other countries that do recognize them as real entities. And-- [sighs]
Will: Is that possible that they're going to have assets in another country that recognizes them as a sovereign? So that we're going to have to go to, I don't even know what country we're talking about.
Steve: I don't know, Swiss bank or something like that.
Will: We're going to go to Switzerland. Switzerland allows them to hold a foreign sovereign bank account, but they're not corporations or are they partnerships? What are they?
Steve: [laughs] Well, I mean, they're certainly not analogous to municipal corporations because those are created under another sovereign. I mean, maybe one could call them Israeli corporations, but I don't think internationally anyone would call them that.
Will: Is this a capacity issue? Like why can they even be sued in federal court if we don't know what they are?
Steve: That's also an excellent question. Rule 17 suggests that they would need to be entities that either would have capacity to sue or be sued under New York law. So that would be initially a question of state law. Or alternatively, if it's a federa… some entity that has a substantive right under the U.S. Constitution or laws can sue in its common name and be sued in its common name. So it might be that, even if they don't have New York capacity, the plaintiffs can still go after them under the Anti-Terrorism Act because the plaintiffs have a substantive right under the US Constitution and laws, namely the Anti-Terrorism Act. But this is a very murky area of capacity law, I think.
Will: We got into this at one of our lunch conversations here. And I learned in the course of this that I guess they are also just like, they're their own entities under the third of the statutes, the PSJVTA or whatever, because it applies to them by name. They are the Palestinian Authority, the Palestinian Liberation Organization, and any other organization that. And so, I don't find it satisfying, but it added reconstitution, maybe. Okay. And Justice Gorsuch does not join this discussion, right?
Steve: No. And he also doesn't join the discussion in 1(B) of whether the Fifth Amendment limits Congress at all. So, there's a longstanding question of, is the due process of law clause the same as the law of the land clause in other instruments in Magna Carta and some state equivalents? And does that require just a statute? Is it just reining in the executive to follow the legislative power, or does it actually bind Congress as well? And this goes back and forth. I think, if I'm remembering right, there's a Hamilton quote about the New York Constitution that does have a due process of law clause where you suggest it would apply to limit the legislature as well. But Thomas, again, raises those issues but does not resolve them. He notes thatMurray's Lessee certainly suggests that it would limit Congress, but he does not resolve the question of whether it was rightly decided.
Dan: Why do we think Justice Gorsuch doesn't join? [chuckles] Given that those parts don't even resolve the question?
Steve: He might not feel very much doubt about it.
Dan: Okay.
Steve: He might not think it needs cold water being thrown.
Dan: I mean, he might agree with one of the positions that Justice Thomas is throwing out there but doesn't necessarily want to endorse the uncertainty.
Steve: Or you might disagree. I mean, he might think that, like, “Oh, no, the Fifth Amendment definitely does limit Congress as an original matter.”
Will: Right. He might be a Chapman McConnell devotee and thus not want to say, “Oh, Chapman McConnell's only one view, and [unintelligible [00:54:09] on their side.
Steve: Fair enough.
Dan: All right, so then Part two, which does have two votes. How do we do there?
Steve: So, Part two sets forth the argument that the Fifth Amendment doesn't restrict Congress's ability to subject a defendant to federal personal jurisdiction. And it starts off by saying, “Look, Congress has lots of extraterritorial powers. They can define and punish felonies in the high seas, etc.” First, Congress did lots of stuff that was extraterritorial. The judiciary followed that and then moves on to the point that personal jurisdiction really is not hiding inside the words due process of law. We had personal jurisdiction cases all the way back. They were enforcing rules about international limits on territorial jurisdiction. These rules were applied under the Constitution in cases about the Full Faith and Credit Clause, they were treated, they were assumed to be part of what constituted a valid judgment.
And when they started to be enforced under Pennoyer, they didn't become due process. They weren't absorbed by the Clause. And what Justice Thomas notes is that in these old cases, if Congress wanted to go beyond what the international limits were, the courts seemed to say that was fine. So, there is no original source for a rule that would constrain Congress's enumerated powers to these international rules of personal jurisdiction. And then he notes again, as we were talking about, that Congress may override these principles, doesn't imply that it should. And the question of retaliation, foreign policy and all that is for Congress to figure out.
Will: So, I see he cites three different documents by Steve Sachs. He cites your amicus brief in this case, your 2020 article, The Unlimited Jurisdiction of the Federal Courts, and your 2017 article, Pennoyer was Right. Is there any daylight between Part two and the cumulative views of Professor Stephen Sachs?
Steve: I'm not sure that there is. There was nothing that I saw that stood out as a proposition that I would definitely reject. I think that in general, it's approaching the question in the right way. It's saying sort of, where do these principles actually come from? And the answer is not language of the Due Process Clause. The answer is the international law principles that these provisions give teeth.
Dan: So, Dean Scholar prize here. High pass?
Steve: [laughs] Fair enough.
Dan: Fay Diploma.
Steve: Yeah, it's hard to say. Maybe the Fay Diploma might be limited to convincing three other members of the court.
Dan: Getting, getting the majority. [Steve laughs]
Will: Nothing succeeds like success.
Dan: So, moving on, when do you think this issue might come back? Will this issue come back to the Supreme Court? I mean, we don't get a ton of these cases, and we seem to have gotten very few of the federal Fifth Amendment cases.
Steve: I mean, one question would be they had a case, this term in Antrix, which was a foreign sovereign immunity case involving an entity that was said to be part of the government of India, if I'm remembering correctly. And a Fifth Amendment argument was raised, but they said that it hadn't been addressed by the Ninth Circuit, so they sent it back down. And so presumably that will get addressed in light of fault. But the difficulty here is, I think, really, 4(k)(2), there are some provisions where Congress has passed a statute providing for worldwide personal jurisdiction. I think some of the securities acts have provisions like that, and there may be a number of others that I go through in the articles.
And there are going to be things where maybe if we ratify the Hague Judgments Convention, there might be treaty provisions that would recognize exercise the personal jurisdiction that the Fifth Amendment, otherwise might play a role in. But I think really 4(k)(2) is going to be the first case. You're going to have some federal question case with no state could have personal jurisdiction over it. And the only limits are the ones in the Constitution. So, the question will be, well, what are those? And we don't have Congress explicitly passing a statute to address that question. So, it won't be as easy for the court to use the, “Well, this is within the foreign policy,” etc.
Dan: And do you have an idea of what those fact patterns tend to look like when they arise?
Steve: I'm not entirely sure, but I think it would be something like antitrust conspiracy to raise prices inside the United States, but with no particular state target. Or you could have something like, I mean, you need a federal statute that's being violated. So, in the case, Nicastro involved product liability involving an allegedly defective metal sharing machine. So that wouldn’t qualify for 4(k)(2). But if there was some federal statute that some manufacturer had violated and even one that applied abroad, and they marketed their products through a distributor across the entire United States, but the distributor was foreign and so there was no one state that you could pin down and say that's the state where they should be sued. You can imagine a suit like that.
Will: Interesting.
Dan: All right, anything else to say about this one?
Steve: So, I think it's a little bit interesting that it's coming up now. I mean, obviously US policy towards the PLO and the PA is very much on the front burner right now. And the court seems to be quite eager not to get between Congress and the executive in whatever they want to do.
Will: I was trying to figure out, is there an Israel angle to this case? Are any of the Justices votes or the arguments shaped by the politics of this, do you think or not particularly?
Steve: I mean, certainly I think they've got reasonably sympathetic plaintiffs. I mean, these are the families of Americans who were killed. The lead plaintiff in one of the cases, Marc Sokolow and his family, they were buying shoes when an intelligence agent at the PA blew up a bomb. And so, it seems like the sort of thing that Congress passed a whole bunch of statutes saying, “We really want liability here.” And so, it would have been a big deal for the court to say all three of these statutes are unconstitutional and Congress cannot get its way in this area of foreign policy.
Will: Although there are other Alien Tort Statutes where horrific things happen to people and the Court has regularly been willing to rein them in even though they seem really sympathetic.
Steve: Right. But part of that is that the Alien Tort Statute, whether it supplies any substantive standard conduct at all, is not at all clear. Whereas here you definitely have Congress, being as specific as it knows how, saying, “We really want these cases in the United States.”
Will: Yeah, thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to Steve Sachs for coming on the show and bringing real expertise rather than the faux expertise we usually have to bring to bear on these cases.
Dan: Don't forget to rate and review the show on the Apple Podcast Store wherever you get your podcasts. Visit our website dividedargument.com where we have transcripts of the episodes, blog.dividedargument.com where we have our Substack with the larger universe of Divided Argument commentators, including Steve, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com, leave us a voicemail 314-649-3790 and if there is a long delay between this and our next episode, it will because we've been made subject to extraterritorial jurisdiction of some other sovereign that is dissatisfied with this podcast.
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