Congress, the Fifth Amendment, and Personal Jurisdiction

A recently filed amicus brief in Fuld v. PLO.

Civil procedure students are used to hearing about the rules for state-court personal jurisdiction under the Fourteenth Amendment's Due Process Clause. But the Fifth Amendment has a Due Process Clause too. So what limits does it impose, if any, on federal-court jurisdiction? That question has been left open for more than two hundred years (at least in Supreme Court case law), but it's coming up for argument this term.

In Fuld v. Palestine Liberation Org., currently set for argument on April 1, the Court is considering the constitutionality of several antiterrorism statutes passed by Congress to punish attacks on Americans. These statutes let American victims and their families sue the responsible parties in American courts, even if the terrorist attacks occurred abroad and weren't focused on American targets. (These statutes were inspired by the 1985 attack on the Achille Lauro, in which Leon Klinghoffer, an American Jew, was shot and dumped from his wheelchair into the sea; his family then faced various hurdles in holding the guilty parties accountable.)

In one suit now before the Court, the families of the American victims obtained significant judgments against the Palestine Liberation Organization and the Palestinian Authority for sponsoring terrorist attacks in Israel and then rewarding the perpetrators. The Second Circuit ordered the cases dismissed for lack of jurisdiction, holding Congress's statutes unconstitutional under the Fifth Amendment, and the Supreme Court granted cert.

I recently filed an amicus brief in the case (also available on SSRN), arguing that limits on personal jurisdiction come from background limits on sovereign authority, rather than from the text of the Fifth or Fourteenth Amendments themselves—and also that these limits aren't always the same for the states and for the federal government. From the summary of argument:

The temptation in this case is to treat the United States as if it were simply one big state. The State of Nevada, even were it the size of the entire United States, still could not call to answer every defendant who attacked a Nevadan abroad. See Walden v. Fiore, 571 U.S. 277, 288–89 (2014). As this limit is enforced under the Fourteenth Amendment's Due Process Clause, and as the Fifth Amendment has a Due Process Clause too, it is tempting to conclude that the United States labors under precisely the same constraint, with the only difference being one of size.

This temptation is to be resisted, for the United States is not simply one big state. True, neither the United States nor any state may deprive a person of life, liberty, or property without due process of law. But the United States and a single state differ greatly with respect to the external limits on their sovereign authority—that is, with respect to the principles the Due Process Clauses enforce and for which those Clauses have "become a refuge." Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2050 (2023) (Alito, J., concurring in part and concurring in the judgment). State laws are restricted to each state's sphere of authority, serving as "rules of decision" only "in cases where they apply." 28 U.S.C. § 1652 (2018). Yet Acts of Congress can be "the supreme Law of the Land," U.S. Const. art. VI, cl. 2, overriding contrary doctrines and extending beyond our borders to protect Americans abroad.

This Court should not bind the United States with the fetters worn by individual states simply because the latter have become so familiar—especially when neither the original Constitution nor this Court's precedents require it. As Justice Story recognized, Congress could have "a subject of England, or France, or Russia * * * summoned from the other end of the globe to obey our process, and submit to the judgment of our courts"; such a statute might violate "principles of public law, public convenience, and immutable justice," but a federal court "would certainly be bound to follow it, and proceed upon the law." Picquet v. Swan, 19 F. Cas. 609, 613–15 (CCD Mass 1828) (No. 11,134). If Congress had such powers at the Founding, it never lost them since. So long as Congress's power to call foreigners to answer is at least as broad as its power to regulate their conduct abroad, the respondents here were obliged to appear in the district court, and the plaintiffs' claims must be allowed to proceed.

1. As an original matter, the Fifth Amendment did not place territorial restrictions on Congress's powers to call defendants to answer. Rules of personal jurisdiction predated the Due Process Clause; they were rules of general and international law, which states might override within their own courts but which would be enforced by the courts of other states, as well as by federal courts in diversity jurisdiction or under the Full Faith and Credit Clause. To the extent the issue arose in the early Republic, there was no question but that Congress could supplant these rules with rules of its own design, just as it could use other enumerated powers to supplant other rules of international law. See generally Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020). After the Civil War, the Fourteenth Amendment enabled the better enforcement of jurisdictional limits on state courts via federal-question review: to deprive someone of life, liberty, or property through a jurisdictionless judgment was to deprive them of these things without due process of law. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017). That had no impact on federal courts, however, which already had to comply with the rules as set out by Congress and as understood by this Court.

2. Congress has not lost these powers since. While the era of International Shoe Co. v. Washington, 326 U.S. 310 (1945), identified various "territorial limitations on the power of the respective States," Hanson v. Denckla, 357 U.S. 235, 251 (1958), this Court has never reflected those limitations back onto the United States as a whole. Instead, different principles of sovereign authority continue to apply via due process to the federal government and to the states. Nor would reversing this approach be harmless. Pretending that the United States is simply one big state for personal-jurisdiction purposes would limit the federal government in negotiating treaties and conducting foreign relations. It would also interfere with federal laws on antitrust, securities regulation, bankruptcy, and child custody. The Court should not pretermit the political branches' consideration of these issues by deciding the case on a mistaken due process claim.

3. To decide the case before it, this Court need not determine the full scope of Congress's jurisdictional powers. The respondents here were served with process within the United States in a manner explicitly authorized by statute, under clear Article I authority, with subsequent enactments making it as clear as Congress knows how that such service is to be held effective. The Court may uphold such service while leaving open the outer limits of what the Fifth Amendment might permit, just as it has for the last two hundred years. It also need not take any view of the parties' complex arguments about formal and informal consent to jurisdiction, under either the Fourteenth Amendment or the Fifth. But by the same token, the Court should not rule out the possibility that Justice Story was correct. As the Second Circuit's judgment can only be right if Justice Story was wrong, the Court should reverse that judgment and remand.

And from later in the brief:

Indeed, both the courts of appeals and the respondents in this case seem to recognize the necessity of distinguishing the scope of federal authority from that of the states. Consider whether the district court would have had jurisdiction in this case if the terrorists whom these defendants rewarded had been targeting Americans in particular—even had they acted out of simple anti-American animus, with no aspiration to influence our government's deliberations or foreign policy. If such attacks aimed at Americans abroad would be treated differently—as both respondents and the courts of appeals seem to envision—then the federal courts are being treated differently as well, for such jurisdiction is unavailable to the states.

For example: had Anthony Walden acted out of simple anti-Nevada animus in detaining the cash of Nevada resident Gina Fiore (perhaps because he considered Las Vegas tawdry), still "no part of [his] course of conduct" would have "occurred in Nevada"; he would still never have "traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada"; and "direct[ing] his conduct at plaintiffs whom he knew had Nevada connections" would still "not create sufficient contacts" with the State of Nevada, as opposed to residents thereof. Walden, 571 U.S. at 288–89. Indeed, Walden specifically rejected as too expansive a test permitting state-court jurisdiction when a defendant "(1) intentionally targets (2) a known resident of the forum (3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the forum state"—let alone while she travels abroad. Id. at 289 n.8; cf. id. at 288 (distinguishing Calder v. Jones, 465 U.S. 783 (1984), on the ground that there the "defendants' intentional tort actually occurred in California"); id. at 290 n.9 (emphasizing the physical, as opposed to virtual, contacts "where the conduct giving rise to this litigation took place").

In other words, if the United States were really to be treated as one big state, to be subjected to the International Shoe test unmodified, someone who murders Americans abroad specifically because they are Americans (and with no other desire to influence policies in America) is immune from the jurisdiction of American courts. The instinctive reaction to this position by both respondents and the court of appeals is good evidence that it is untenable. Individual states may have only limited powers to punish conduct outside their borders that is lawful where it occurs; but a government authorized to regulate foreign commerce, as well as to "define and punish * * * Offences against the Law of Nations," U.S. Const. art. I, § 8, cl. 10, also has the "incidental or implied powers" to call those who violate those regulations and commit those offenses before its courts. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819).

Before long I hope to write up a response to some of the counterarguments in the respondents' brief, as well as those found in other amicus briefs for the petitioners. (Strangely, not a single amicus brief was filed in support of the respondents.) In the meantime, read the whole thing!

[Update: Cross-posted to Divided Argument.]