Supreme Court hears challenge to statute deeming PLO and Palestinian Authority subject to U.S. courts

The Supreme Court heard argument in FOLD v. Palestine Liberation Organization and the Palestinian Authority over a federal statute that deems the PLO and the PA to have submitted to U.S. court jurisdiction when they make certain payments to persons who injured or killed Americans or engage in specified activities in the United States.

The question before the justices is whether that statute—challenged as an exercise of personal jurisdiction—violates the Due Process Clause, and if so whether the governing test is the Fourteenth Amendment minimum‑contacts framework or a different Fifth Amendment standard tied to federal interests and “fairness.” The case implicates victims’ ability to obtain compensation, Congress’s power over foreign‑affairs and national‑security policy, and the reach of U.S. courts over foreign non‑sovereign entities.

Petitioners’ counsel argued the statute satisfies due process because it gives fair notice and is tied to legitimate federal interests. “The statute gave the defendants fair warning,” counsel said, contending that Congress may define the jurisdictional contacts relevant to federal courts and that the Fifth Amendment requires a fairness or non‑arbitrariness check that, here, is met.

Counsel for the United States told the Court the statute is “an integral component of the foreign policy and national security policy of the political branches,” and that Congress permissibly deemed the PLO and PA to have submitted to jurisdiction when they engage in the conduct the statute describes. The government emphasized the narrowness of the provision—limited to terrorism‑related claims and to specified categories of conduct—and urged deference to congressional and executive judgments on foreign policy and national security.

Respondents’ counsel countered that the statute fails long‑standing due process limits on constructive consent and personal jurisdiction. He invoked the court’s consent and fairness precedents and argued that continuing to permit activity previously held insufficient to establish jurisdiction cannot be treated as submission. “The PSJVTA purports to be a constructive consent statute, but it fails the due process test for constructive consent to jurisdiction,” he said, asking the Court to affirm the court of appeals.

During more than two hours of argument the justices pressed three recurring themes: (1) whether the Fifth Amendment should be interpreted differently from the Fourteenth Amendment for personal‑jurisdiction purposes; (2) whether the statute’s two jurisdictional prongs—one tied to post‑enactment payments abroad and the other to certain activities or offices in the United States—separately or together supply constitutionally sufficient contacts; and (3) how much judicial deference is owed when Congress and the president act together on national‑security and foreign‑policy measures.

Several justices asked whether a fairness or ‘‘fundamental fairness’’ component that appears in Fourteenth Amendment decisions should govern the Fifth Amendment here and, if so, how that concept should be defined in practice. Counsel for the petitioners and the United States said a reasonableness or non‑arbitrariness requirement would remain; the government further argued that courts should proceed incrementally and that the facts and statutory text here provide a sufficient nexus to the United States. Respondents’ counsel urged the Court to apply established consent and fairness tests from prior decisions and to reject a broad rule that would allow Congress to convert extraterritorial conduct into constructive submission without limit.

Justices also probed the statute’s mechanics and scope. Several asked whether the payments prong—payments made abroad to persons who injured Americans—could constitutionally provide jurisdiction if no U.S. territorial conduct exists, or whether the activities/office prong alone (for example, maintaining an office or engaging in specified U.S. activities) would suffice. Counsel for petitioners said they did not need more than the activities/office prong but that Congress provided both prongs; the government said the statute is narrowly cabined and that activities abroad have a clear nexus to U.S. victims and interests. Respondents’ counsel emphasized ambiguities in exclusions for United Nations activity and in what counts as “ancillary” conduct, and told the Court those uncertainties counsel in favor of applying established due‑process limits.

The argument also touched on whether the PLO and PA are ‘‘persons’’ entitled to constitutional due process protections; counsel agreed that the government had not taken an affirmative position on that question in this argument but that the issue is sensitive and relevant to the due‑process analysis. Several justices asked about historical practice and precedent—from Pennoyer and Murray’s Lessee to International Shoe and Daimler—and whether those lines of cases require the Court to adopt or reject a category‑wide restraint on Congress’s power to specify jurisdictional contacts.

The case will require the justices to decide whether to sustain the statute as a permissible, narrowly tailored exercise of congressional authority tied to national security and victims’ compensation interests, or whether the Due Process Clause bars Congress from deeming foreign entities subject to U.S. courts for extraterritorial conduct without meeting the Court’s traditional jurisdictional constraints. The Court heard argument on both broad and incremental doctrinal reforms; counsel for the government urged restraint and deference to the political branches, while respondents’ counsel urged adherence to longstanding jurisdictional limits.

The Court took the case under advisement after rebuttal and submitted the case for decision.