Congress, the Fifth Amendment, and Personal Jurisdiction
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 (201
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
