Fuld v. PLO (24-20)

argument 24-20

Fuld v. PLO

Supreme Court of the United States 1h 53m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the government's argument for exercising jurisdiction over the PLO and PA?

John G. Roberts 0:00

We will hear argument this morning in case 2420, Fold v. Palestine Liberation Organization, and the consolidated case. Mr. Yalowitz.

Mr. Yelowitz 0:09

Mr. Chief Justice, and may it please the Court, the 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, simply ban payments to terrorists who have killed Americans and concomitantly could establish federal jurisdiction when that ban is violated.

Mr. Yelowitz 1:10

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.

Clarence Thomas 1:53

If we analyze this under the Fifth Amendment, what limitations would the Fifth Amendment provide for personal jurisdiction?

Mr. Yelowitz 2:02

So, first of all, the 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. How would that

Clarence Thomas 2:27

differ from analyzing it under the 14th

Mr. Yelowitz 2:30

Amendment? Under the 14th 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 ceded horizontal federalism in the 14th Amendment. And so that limitation would exist.

Clarence Thomas 2:53

When you say horizontal limitation, what do you mean? And exactly how would the 14th Amendment apply and how would that differ from the application of the 5th

Mr. Yelowitz 3:04

Amendment? So we don't think that the 14th Amendment would apply at all here. However, if the tests were the same under the 14th and the 5th Amendments, the court would have to look at the interests of of the federal government 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 infringe the sovereignty of Ohio, for example. The federal government doesn't suffer from that limitation. The federal government's powers are more expansive.

Elena Kagan 3:46

Well, there have been many courts that think that just as in the 14th 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.

Mr. Yelowitz 4:07

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 for federal jurisdiction. Minimum contacts would apply because the plaintiffs would have to travel under the 14th Amendment in 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.

Elena Kagan 4:42

Well, why is that? If the minimum contact test is a constitutional test, why does what Congress says in a particular statute bonify that?

Mr. Yelowitz 4:50

Because the minimum contact test grows out of 14th Amendment cases that provided for limitations on state governments. Those limitations do not apply to the federal government.