SUPREME COURT OF THE UNITED STATES
_________________
Nos. 24–20 and 24–151
_________________
MIRIAM FULD, et al.,
PETITIONERS
24–20
v.
PALESTINE LIBERATION ORGANIZATION,
et al.
EVA WALDMAN, et al.,
PETITIONERS
v.
PALESTINE LIBERATION ORGANIZATION,
et al.
UNITED STATES, PETITIONER
24–151
v.
PALESTINE LIBERATION ORGANIZATION,
et al.
on writs of certiorari to the united states
court of appeals for the second circuit
[June 20, 2025]
Justice Thomas, with whom Justice Gorsuch
joins as to Part II, concurring in the judgment.
The Court properly holds that the
personal-jurisdiction provisions of the Promoting Security and
Justice for Victims of Terrorism Act (PSJVTA), §903, 133Stat.
3082–3085, 18 U. S. C. §§2333, 2334, do not violate
respondents’ claimed rights under the Due Process Clause of the
Fifth Amendment. See
ante, 14–21. In reaching this
conclusion, the majority recognizes that the Fourteenth Amendment’s
“minimum contacts standard” does not apply to the Fifth Amendment’s
Due Process Clause.
Ante, at 12. But, rather than decide
what standard
does apply, the Court holds only that the
Fifth Amendment at least permits a statute such as the PSJVTA that
“ties federal jurisdiction to conduct closely related to the United
States that implicates important foreign policy concerns.”
Ante, at 14. The Court leaves for another day the task of
defining “the Fifth Amendment’s outer limits on the territorial
jurisdiction of federal courts.”
Ibid.
I would take a different approach. When
interpreting constitutional provisions, we must look to “the text
of the Constitution” as well as “historical evidence from the
framing” that can illuminate “the intent of those who drafted and
ratified it.”
McIntyre v.
Ohio Elections Comm’n,
514 U.S.
334, 370 (1995) (Thomas, J., concurring in judgment). The
critical question in these cases is what boundaries the Fifth
Amendment’s due process guarantee, as originally understood, places
on the Federal Government’s power to extend personal jurisdiction
over respondents. Historical evidence demonstrates that the answer
is “none.” “Because the majority has adopted an analysis that is
largely unconnected to the Constitution’s text and history, I
concur only in the judgment.”
Id., at 371.
I
“We start with the text of the Fifth
Amendment” and interpret its provisions in light of how they were
“ ‘understood in 1791.’ ”
Gamble v.
United
States, 587 U.S. 678, 683 (2019); see also
McIntyre, 514
U. S., at 370–371 (opinion of Thomas, J.). The Fifth
Amendment’s Due Process Clause provides that “[n]o person” shall
“be deprived of life, liberty, or property, without due process of
law.” Thus, to show that the PSJVTA’s jurisdictional provisions run
afoul of the Fifth Amendment’s due process protections, respondents
must establish both that they are “person[s]” protected by the
Fifth Amendment and that the PSJVTA transgresses their due process
rights. These requirements in turn raise two threshold issues:
whether respondents enjoy constitutional rights in the first place,
and what “due process of law” requires. While my conclusions as to
both threshold issues remain tentative, there are strong reasons to
think that each poses an independently fatal problem for
respondents. At a minimum, however, I would conclude today that the
PSJVTA’s jurisdictional provisions do not violate any plausible
understanding of due process.
A
I am skeptical that entities such as the
Palestine Liberation Organization (PLO) and the Palestinian
Authority (PA) enjoy any constitutional rights at all, let alone
qualify as “person[s]” for purposes of the Fifth Amendment.
1
The PLO and the PA are foreign bodies that are
not recognized as sovereign by the United States, but that
nevertheless carry out governmental functions.
Ante, at 1–2.
Although the Federal Government does not take a position on the
question whether such foreign nonsovereign governmental bodies have
constitutional rights, Tr. of Oral Arg. 43–45, the Executive Branch
has for decades endorsed principles that suggest that the
Constitution does not protect these types of entities.
Begin with the Executive’s approach to “the
nature of foreign sovereigns.” Constitutionality of Closing the
Palestine Information Office, an Affiliate of the Palestine
Liberation Org
., 11 Op. OLC 104, 106 (1987). To be sure, the
United States does not recognize respondents as sovereign states,
ante, at 2, but the Executive’s view of foreign nations’
constitutional rights nevertheless may shed light on respondents’
assertion of constitutional rights here. Foreign sovereigns, the
Office of Legal Counsel has explained, each “interac[t] with the
United States as a foreign, co-equal sovereign.” 11 Op. OLC, at
106
. “[T]he United States interacts with foreign states not
within the constitutional system, but as a juridical equal, on the
level of international law and diplomacy.”
Id., at 107. It
follows that no sovereign can be “ ‘amenable,’ or subject to
the other,”
ibid., for such an arrangement would violate the
precept that “the body of the nation, the State, remains absolutely
free,” E. de Vattel, The Law of Nations, Preliminaries, §4, p. lv
(J. Chitty ed. 1854).[
1] Thus,
“[a] foreign nation, . . . unlike a foreign national,
does not have rights under the Fifth Amendment.” Presidential
Authority To Settle the Iranian Crisis, 4A Op. OLC 248, 260,
n. 9 (1980).
The Executive Branch has reached the same
conclusion regarding domestic nonsovereign governing bodies, such
as United States Territories. See Mutual Consent Provisions in the
Guam Commonwealth Legislation, 1994 WL 16193765, *5 (OLC, July 28,
1994) (“non-state areas” are “governmental bodies” that “are not
protected by the Due Process Clause of the Fifth Amendment”).
“Territories are but political subdivisions of the outlying
dominion of the United States” and thus relate to the Federal
Government similarly to the way in which municipalities relate “to
the respective States.”
National Bank v.
County of
Yankton,
101 U.S.
129, 133 (1880). Given that a municipality is “created by a
state for the better ordering of government,” and thus has “no
privileges or immunities under the federal constitution which it
may invoke in opposition to the will of its creator,”
Williams v.
Mayor of Baltimore,
289 U.S.
36, 40 (1933); see also
Newark v.
New Jersey,
262 U.S.
192,
196
(1923), the Executive’s conclusion that the same logic should apply
to Territories is reasonable. Accord,
e.
g.,
Puerto
Rico Public Housing Admin. v.
United States Dept. of Housing
and Urban Development,
59 F. Supp. 2d 310, 325 (PR 1999) (instrumentalities of the
Commonwealth of Puerto Rico are “ ‘non-persons’ ” for
purposes of constitutional claims).
Assuming that the Executive Branch is correct
that neither foreign sovereign governments nor domestic
nonsovereign Territories enjoy constitutional rights, it is unclear
why the Constitution would treat foreign nonsovereign governmental
entities such as respondents differently. In the Executive’s own
words, the PLO is at bottom “a foreign political entity” that
“ ‘lies outside the structure of the union.’ ” 11 Op.
OLC, at 107 (quoting
Principality of Monaco v.
Mississippi,
292 U.S.
313, 330 (1934)). Neither it nor the PA has taken any “general
obligation to abide by the constitutional norms to which the
federal government and the several states are subject, nor are
there any effective means to place [them] on parity with the United
States or the states for purposes of enforcement of particular
norms.” 11 Op. OLC, at 107 (internal quotation marks omitted). It
would seem to follow that neither entity enjoys constitutional
protections.
In addition to the conclusions of the Executive
Branch, decisions from this Court further suggest that entities
like respondents may not be “person[s]” protected by the Fifth
Amendment. In
South Carolina v.
Katzenbach,
383 U.S.
301, 323 (1966), the Court held that “[t]he word ‘person’ in
the context of the Due Process Clause of the Fifth Amendment
cannot, by any reasonable mode of interpretation, be expanded to
encompass the States of the Union.” Decades later, the Court cited
Katzenbach to suggest that “a foreign state” might not be “a
‘person’ for purposes of the Due Process Clause.”
Republic of
Argentina v.
Weltover, Inc.,
504
U.S. 607, 619 (1992).
“Since
Weltover, the consensus of circuit
courts has followed the Supreme Court’s lead and definitively held
that foreign states are not entitled to the protections of the Due
Process Clause.”
CC/Devas (Mauritius) Ltd. v.
Antrix
Corp., 91 F. 4th 1340, 1350 (CA9 2024) (Bumatay, J.,
dissenting from denial of rehearing en banc). The D. C.
Circuit thoroughly analyzed the issue in
Price v.
Socialist People’s Libyan Arab Jamahiriya,
294 F.3d 82 (2002). Compared to foreign nations, which are
“entirely alien to our constitutional system,” the court explained,
domestic States “derive important benefits and must abide by
significant limitations.”
Id., at 96. It would therefore be
“highly incongruous to afford greater Fifth Amendment rights to
foreign nations.”
Ibid. At least two other Circuits have
reached the same conclusion. See
Frontera Resources Azerbaijan
Corp. v.
State Oil Co. of Azerbaijan Republic, 582 F.3d
393, 399 (CA2 2009) (“If the States, as sovereigns that are part of
the Union, cannot ‘avail themselves of the fundamental safeguards
of the Due Process Clause,’ we do not see why foreign states, as
sovereigns wholly outside the Union, should be in a more favored
position” (citation omitted));
Abelesz v.
Magyar Nemzeti
Bank, 692 F.3d 661, 694 (CA7 2012) (similar).
These courts’ and the Executive’s determinations
that foreign sovereigns do not fall within the “person[s]”
protected by the Fifth Amendment’s Due Process Clause seem very
likely correct, and it is difficult to see why the Constitution
would afford better treatment to foreign nonsovereign governmental
entities. To conclude otherwise would imply that foreign
governmental entities may receive greater constitutional
protections by engaging in conduct that leads the United States to
refuse to recognize their sovereignty. I seriously doubt that the
Constitution compels such a result. As the Office of Legal Counsel
concluded, “[i]t would be anomalous if the Executive’s decision to
withhold recognition from a foreign political entity
. . . invested that entity with rights greater than those
enjoyed by friendly sovereigns present in the United States.” 11
Op. OLC, at 120, n. 7.
2
Nevertheless, some lower courts have concluded
that the Constitution treats nonsovereign foreign governing bodies
like respondents more favorably than it treats recognized
sovereigns, States, Territories, and municipalities. In
Livnat v.
Palestinian Authority, 851 F.3d 45, 52
(2017), for example, the D. C. Circuit held that the Due
Process Clause applies to the PA and the PLO, distinguishing
Price as “appl[ying] to sovereigns alone.” Because neither
the PA nor the PLO are “ ‘recognized by the United States
government as sovereigns,’ ” the court reasoned, they are
therefore “protected by the Due Process Clause.”
Ibid.
The D. C. Circuit’s opinion could be read to
embrace a dichotomy in which entities are either nonsovereigns,
which enjoy constitutional rights, or sovereigns, which do not. See
ibid.; accord,
Waldman v.
Palestine Liberation
Org., 835 F.3d 317, 329 (CA2 2016) (noting that “sovereign
states are not entitled to due process protection,” but rejecting
the argument that respondents lack such protection because “neither
the PLO nor the PA is recognized by the United States as a
sovereign state”). Respondents rely on that theory here, arguing
that a constitutional “binary” applies to the question whether an
entity is a “person” under the Fifth Amendment: An entity either is
“a person for purposes of the Due Process Clause,” or it is “a
sovereign state”; there is no “no-man’s-land” in which the entity
is “neither a sovereign state nor a person.” Tr. of Oral Arg.
91.
While I agree with a “binary” framework insofar
as the Due Process Clause either applies to respondents or it does
not, I do not see how sovereignty supplies the dividing line. It is
uncontroversial that entities such as municipalities and United
States Territories are not sovereigns. See
County of
Yankton, 101 U. S., at 133; Mutual Consent Provisions in
the Guam Commonwealth Legislation, 1994 WL 16193765, *5. Under
respondents’ framework, this nonsovereign character would seem to
compel the conclusion that municipalities and Territories thus must
be “person[s]” with constitutional rights. For reasons already
discussed, see
supra, at 4–5, this result is dubious, see
Williams, 289 U. S., at 40 (municipalities have “no
privileges or immunities under the federal constitution which it
may invoke in opposition to the will of its creator”); accord,
e.
g.,
East St. Louis v.
Circuit Ct.
for Twentieth Jud. Cir., St. Clair Cty., 986 F.2d 1142, 1144
(CA7 1993) (“Municipalities . . . are not ‘persons’
within the meaning of the Due Process Clause”). Further, assuming
the Court was correct to conclude that the Due Process Clause of
the Fifth Amendment does not “encompass the States of the Union,”
Katzenbach, 383 U. S., at 323, it is rather odd to
think that the Constitution would provide greater constitutional
rights to Territories or the political subdivisions of States than
to the States themselves.
Neither the private petitioners nor the
Government pressed the argument that the Constitution does not
protect respondents at all, so we should not resolve the cases on
that basis. See,
e.
g., H. Proctor, “Will the Meaning
of the Second Amendment Change . . . ?”: Party
Presentation and Stare Decisis in Text-and-History Cases, 98
N. Y. U. L. Rev. 453, 463, n. 70 (2023)
(cautioning against courts attempting to “correc[t] for
deficiencies in party presentation”). But, the question whether
entities like respondents receive any constitutional protection is
antecedent to whatever constitutional arguments they might make,
and I am hopeful that in an appropriate case parties will brief and
the Court will address this issue.[
2]
B
Even assuming that the PLO and the PA are
“person[s]” protected by the Fifth Amendment, respondents still
must grapple with another threshold inquiry: whether the Due
Process Clause imposes any limits on the legislative power.
“The four words—due process of law—have been the
center of substantial legal debate over the years.”
In re
Winship,
397 U.S.
358, 378 (1970) (Black, J., dissenting). As I have previously
explained, the Due Process Clause may have originally been
understood to require only that our Government “ ‘proceed
according to the “law of the land”—that is, according to written
constitutional and statutory provisions,’ ” before depriving
someone of life, liberty, or property.
Johnson v.
United
States,
576 U.S.
591, 623 (2015) (opinion concurring in judgment). Numerous
scholars have supported this view, “conclud[ing] that ‘considerable
historical evidence supports the position that “due process of law”
was a separation-of-powers concept designed as a safeguard against
unlicensed executive action, forbidding only deprivations not
authorized by legislation or common law.’ ”
Ibid.
(quoting D. Currie, The Constitution in the Supreme Court: The
First Hundred Years 1789–1888, p. 272 (1985)); see also,
e.
g., E. Corwin, The Doctrine of Due Process of Law
Before the Civil War, 24 Harv. L. Rev. 366, 370–373 (1911)
(listing reasons to conclude that “the phrase ‘law of the
land’ ” did not “import any limitation upon legislative
power”); 4 Papers of Alexander Hamilton 35 (H. Syrett & J.
Cooke eds. 1962) (“The words ‘
due process’ . . .
can never be referred to an act of legislature”).
Others have disagreed. For example, some
scholars have argued that “as originally understood, ‘the principle
of due process’ required, among other things, that ‘statutes that
purported to empower the other branches to deprive persons of
rights without adequate procedural guarantees [be] subject to
judicial review.’ ”
Johnson, 576 U. S., at 623
(opinion of Thomas, J.) (quoting N. Chapman & M. McConnell, Due
Process as Separation of Powers, 121 Yale L. J. 1672, 1679
(2012)).
And, in
Murray’s Lessee v.
Hoboken
Land & Improvement Co., 18 How. 272 (1856), the Court
itself concluded that the mere existence of a legislative enactment
was insufficient on its own to satisfy due process under the Fifth
Amendment. Despite acknowledging that “[t]he words, ‘due process of
law,’ were undoubtedly intended to convey the same meaning as the
words, ‘by the law of the land,’ in
Magna Charta,” the Court
concluded that the Due Process Clause “is a restraint on the
legislative as well as on the executive and judicial powers of the
government.”
Id., at 276. The Court famously declared that
due process must comport with “those settled usages and modes of
proceeding existing in the common and statute law of England,
before the emigration of our ancestors, and which are shown not to
have been unsuited to their civil and political condition by having
been acted on by them after the settlement of this country.”
Id., at 277. These requirements generally include an
independent judge, “regular allegations, opportunity to answer, and
a trial according to some settled course of judicial proceedings.”
Id., at 280. The Court’s decision in
Murray’s Lessee
“opened the door to a dramatic reinvention of the Due Process of
Law Clause as a check on the statutory enactment of novel methods
of procedure.” M. Crema & L. Solum, The Original Meaning of
“Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev.
447, 519 (2022).
In these cases, “I need not choose between these
two understandings of ‘due process of law.’ ”
Johnson,
576 U. S., at 623 (opinion of Thomas, J.). If the “law of the
land” view of due process is correct and requires only that
Congress have authorized the deprivation of life, liberty, or
property that the Federal Government effects, see
Sessions
v.
Dimaya, 584 U.S. 148, 207 (2018) (Thomas, J.,
dissenting), then the PSJVTA’s proper enactment resolves the
question presented. But, as explained next, even assuming that
“settled usages and modes of proceeding” govern the due process
inquiry,
Murray’s Lessee, 18 How., at 277, respondents’ due
process argument still fails.
II
The Fifth Amendment was never understood to
constrain Congress’s ability to extend federal jurisdiction. The
Federal Government has always possessed the power to extend its
jurisdiction beyond the Nation’s borders, and, as understood in
1791, the Fifth Amendment did not limit this sovereign prerogative.
Rather, insofar as any limits on extraterritorial jurisdiction
existed, they stemmed from general principles of international law.
But, those principles were defeasible, subconstitutional rules that
the sovereign could override through clear command. This
understanding respects the Constitution’s design by reserving
matters of foreign affairs to the political branches.
A
Congress’s and the Judiciary’s
extraterritorial powers are evident in the Constitution. The text
is explicit: Congress may “define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of
Nations,” and it may “make Rules concerning Captures on Land and
Water.” Art. I, §8, cls. 10, 11.
By design, the authority of “the Judicial”
branch was to be “commensurate to the legislative and executive
Authority.” 1 Records of the Federal Convention 237, n. 18 (M.
Farrand ed., 1911) (statement of James Wilson). “The judicial
Power” accordingly “extend[s] to all Cases, in Law and Equity,
arising under this Constitution, [and] the Laws of the United
States”; “to all Cases of admiralty and maritime Jurisdiction; and
to “all Crimes,” including those “not committed within any State.”
Art. III, §2, cls. 1, 3.
The First Congress, “many of whose members had
taken part in framing” the Constitution,
Wisconsin v.
Pelican Ins. Co.,
127 U.S.
265, 297 (1888), exercised its authority to prescribe
extraterritorial jurisdiction in the Judiciary Act of 1789. See §9,
1Stat. 76–77 (granting federal courts jurisdiction over “civil
causes of admiralty and maritime jurisdiction” arising “upon the
high seas”); see also,
e.
g., N. Chapman, Due Process
Abroad, 112 Nw. U. L. Rev. 377, 409 (2017) (“[O]ne of the
federal government’s top priorities” postratification was “[t]he
prosecution and punishment of extraterritorial crimes, including
crimes committed by aliens”). This “actio[n] of the First Congress”
is “of course persuasive evidence of what the Constitution means.”
Harmelin v.
Michigan,
501 U.S.
957, 980 (1991) (opinion of Scalia, J.); see,
e.
g.,
Marsh v.
Chambers,
463 U.S.
783, 788–790 (1983). Early treatises further reinforce the
conclusion that the Federal Government possessed the power to
exercise its jurisdiction beyond its borders, noting for example
that “for the purpose of giving jurisdiction,” “on
whom or
where a piratical offense has been committed” is irrelevant.
1 J. Kent, Commentaries on American Law 174 (1826).
Constitutional text, postratification practice,
and early commentary thus demonstrate that Congress and the
Judiciary can exercise jurisdiction beyond the United States. The
question turns to what, if anything, limits this power.
B
Preratification and postratification courts
observed limits on their own and each other’s extraterritorial
authority. Those limits were originally understood to derive from
the international law of nations, not the Constitution. But,
Congress always possessed the power to legislate beyond the
boundaries that these international-law principles imposed.
1
Early courts routinely applied law-of-nations
principles under which personal jurisdiction was “typically a
problem in recognition”; that is, “[t]he question for American
courts was whether [foreign] judgments would be recognized and
enforced.” S. Sachs,
Pennoyer Was Right, 95 Texas
L. Rev. 1249, 1270 (2017) (Sachs 2017). Because “[e]arly
American states stood in much the same position as foreign
nations,” they would review each other’s jurisdiction and refuse to
recognize or enforce foreign judgments that exceeded commonly
understood jurisdictional limits.
Id., at 1273–1274. In
Jenkins v.
Putnam, 1 S. C. L. 8 (1784)
(
per curiam), for example, a South Carolina court recognized
that whether a North Carolina admiralty court’s judgment was due
“faith and credit” pursuant to “[t]he act of confederation
. . . and the law of nations” turned on whether the
foreign court had “competent jurisdiction” to enter the judgment.
Id., at 9–10; see also,
e.
g.,
Kibbe v.
Kibbe, 1 Kirby 119, 126 (Conn. Super. Ct. 1786) (concluding
that a Massachusetts court lacked “legal jurisdiction of the cause”
and thus rejecting creditors’ attempt to have the court recognize
out-of-state judgment).
Courts “continued to reason this way” after the
Fifth Amendment’s ratification in 1791. Sachs 2017, at 1275. Riding
circuit, Justice Story rejected the application of a Massachusetts
personal-jurisdiction statute to an absent Louisiana citizen based
on the “universal” “principle,” “consonant with the general
principles of justice, that the legislature of a state can bind no
more than the persons and property within its territorial
jurisdiction.”
Flower v.
Parker, 9 F. Cas. 323,
324–325 (No. 4,891) (CC Mass. 1823). This Court reinforced those
principles in
D’Arcy v.
Ketchum, 11 How. 165, 174
(1851), in which it addressed whether a creditor could enforce a
New York judgment in a Louisiana federal court against a “citizen
of Louisiana not served with process.” Observing that neither an
act of Congress nor a provision of the Constitution had displaced
the “well-established rules of international law,” the Court
concluded that following such a procedure to enforce the New York
judgment would be “deemed an illegitimate assumption of power.”
Id., at 174–176. At bottom, this international-law approach
to personal jurisdiction meant that when one government attempted
to exercise “jurisdiction which, according to the law of nations,
its sovereign could not confer,” that government’s “sentences
[were] not regarded by foreign courts” irrespective of whether they
were valid “within the dominions of the prince from whom the
authority is derived.”
Rose v.
Himely, 4 Cranch 241,
276–277 (1808) (Marshall, C. J., for the Court).
Absent from this approach to personal
jurisdiction was any consideration of due process. The Court’s
omission of such analysis in
D’Arcy is illustrative: The
Court could have analyzed the legitimacy of enforcing the New York
judgment under the New York Constitution—which “contained an exact
replica of the Fifth Amendment’s Due Process Clause”—but it
conspicuously declined to do so. See Brief for Professor Stephen E.
Sachs as
Amicus Curiae 10 (citing N. Y. Const. of 1846,
Art. I, §6). Due process was not the issue; the “well-established
rules of international law” were. 11 How., at 174.
2
These rules of international law, however,
were always understood to be defeasible. Even if Congress generally
respected such rules, it retained the power to override them
through clear statutory command.
Founding-era courts may have sought to avoid
“constru[ing]” statutes “to violate the law of nations if any other
possible construction remain[ed],” but they understood that the
legislature could depart from this international baseline “by
express words or a very plain and necessary implication.”
Murray v.
Schooner Charming Betsy, 2 Cranch 64, 118
(1804) (Marshall, C. J., for the Court); see also,
e.
g.,
Talbot v.
Seeman, 1 Cranch 1, 43
(1801) (“[T]he laws of the United States ought not,
if it be
avoidable, so to be construed as to infract the common
principles and usages of nations” (emphasis added)). A nation
“might always ‘exercise its territorial powers in a manner not
consonant to the usages and received obligations of the civilized
world’ ”; even if it were “ ‘considered as violating its
faith,’ ” the rules still would be “valid within that nation’s
courts.” S. Sachs, The Unlimited Jurisdiction of the Federal
Courts, 106 Va. L. Rev. 1703, 1722 (2020) (Sachs 2020)
(quoting
Schooner Exchange v.
McFaddon, 7 Cranch 116,
137 (1812)); accord,
e.
g.,
United States v.
Yousef,
327 F.3d 56, 108 (CA2 2003) (the “claim that principles of
customary international law constrain Congress’s power to enact
laws that proscribe extraterritorial conduct is simply wrong”).
This approach reflects the “longstanding
principle of American law” that congressional statutes are “meant
to apply only within the territorial jurisdiction of the United
States”—“
unless a contrary intent appears.”
EEOC v.
Arabian American Oil Co.,
499 U.S.
244, 248 (1991) (emphasis added; internal quotation marks
omitted); cf.
Blackmer v.
United States,
284 U.S.
421, 437 (1932) (whether “the legislation of Congress” applies
extraterritorially to “citizens of the United States in foreign
countries” is a “question of . . . construction, not of
legislative power”). Given that principles of international law
formed the basis for early understandings of personal jurisdiction,
Congress’s general ability to override those principles strongly
implies its power to effect extraterritorial jurisdiction beyond
what the law of nations might permit.
This conclusion becomes nearly inescapable when
taking into account the views of early jurists who considered the
question. For example, Justice Johnson, while dissenting on a
separate point, acknowledged as an “eternal principl[e] of justice”
the precept “that jurisdiction cannot be justly exercised by a
state over property not within the reach of its process, or over
persons not owing them allegiance or . . . found within
their limits.”
Mills v.
Duryee, 7 Cranch 481, 486
(1813). Nevertheless, he had no trouble concluding that courts
could “dispense with” that principle “when compelled by positive
statute.”
Ibid.; see Sachs 2020, at 1722.
Justice Story shared this view. In
Picquet v.
Swan, 19 F. Cas. 609, 613 (No. 11,134) (CC
Mass. 1828), the plaintiff sued a defendant residing abroad through
jurisdictionally dubious means, the implications of which might
suggest that “a subject of England, or France, or Russia
. . . may be summoned from the other end of the globe to
obey our process, and submit to the judgment of our courts.”
Justice Story concluded that Congress had not authorized the
plaintiff ’s expansive theory of federal jurisdiction, which
would interfere with “principles of . . . immutable
justice.”
Id., at 614. But, he made clear that this absence
of congressional action was due to a lack of will, not power: “If
congress had prescribed such a rule, the court would certainly be
bound to follow it, and proceed upon the law.”
Id., at 615.
In other words, “foreign-based defendants were owed no more than
service authorized by Congress before being haled into our federal
courts.”
Antrix Corp., 91 F. 4th, at 1352 (opinion of
Bumatay, J.) (citing
Picquet, 19 F. Cas., at 613,
615–616).
This Court eventually endorsed Justice Story’s
analysis. In
Toland v.
Sprague, 12 Pet. 300, 302
(1838), as in
Picquet, the Court addressed whether a federal
statute authorized a plaintiff ’s attempt to have the federal
court exercise personal jurisdiction over a defendant residing
abroad. Assigning “great force” to the reasoning of
Picquet,
the
Toland Court held that Congress had not contemplated
federal jurisdiction over those “who were in a foreign
jurisdiction,” and thus had not extended “the reach of the process
of the courts” over those individuals. 12 Pet., at 328–330.
Nevertheless, the Court followed Justice Story’s analysis and
concluded that federal courts would be bound to exercise such
jurisdiction if Congress required it through “positive
legislation,” no matter how “unjust.”
Id., at 329–330; see
also 101 F. 4th 190, 218–219 (CA2 2024) (Menashi, J.,
dissenting from denial of rehearing en banc) (detailing the
Toland Court’s “embrac[e]” of Justice Story’s
reasoning).
Subsequent historical and legal developments,
including the ratification of the Fourteenth Amendment, have not
changed the fundamental point that the Fifth Amendment’s Due
Process Clause does not territorially confine the Federal
Government’s jurisdiction.[
3]
During the
Lochner era, for example, this Court began to
determine that the Fourteenth Amendment restricts
States’
ability to adjudicate cases involving conduct beyond their borders.
See,
e.
g.,
Baker v.
Baker, Eccles &
Co.,
242 U.S.
394, 403 (1917). But, the Court during that period continued to
recognize that the Fifth Amendment provides “no ground for
constructing an imaginary constitutional barrier around the
exterior confines of the United States for the purpose of shutting
[the federal] government off from the exertion of powers which
inherently belong to it by virtue of its sovereignty.”
United
States v.
Bennett,
232 U.S.
299, 306 (1914); see also Brief for Petitioners in No. 24–20,
pp. 27–28.
Cases from the founding era onward have
continually reaffirmed that the Fifth Amendment was never
understood to impose limits on the exercise of personal
jurisdiction. Any such limits derived from international law, which
Congress could override.
C
That Congress
may override general
principles of international law does not imply that it
should, but instead that the relevant considerations are not
constitutional ones. Serious nonconstitutional considerations
include implications for foreign policy. But, concerns over foreign
affairs are no reason to impose constitutional limits on federal
courts’ extraterritorial jurisdiction. Just the opposite—the
implications of such limitations on the political branches’ power
to conduct foreign policy reinforce the conclusion that the
Constitution does not inhibit the Federal Government’s ability to
extend its jurisdiction extraterritorially.
As the foregoing demonstrates, Congress has the
power to subject foreign nationals to what they might view as
overly broad jurisdiction. In response, countries may decide to
enact “ ‘retaliatory’ jurisdictional provisions” that “empower
[their] national courts to exercise jurisdiction over [American
citizens] in circumstances where [American] courts . . .
would have asserted jurisdiction.” G. Born, Reflections on Judicial
Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L.
1, 15 (1987) (Born); see also
ante, at 14. Constitutionally
unchecked authority to extend federal jurisdiction thus undeniably
has the potential to generate repercussions in foreign affairs. See
Tr. of Oral Arg. 55–56 (counsel for the Federal Government
acknowledging that the Government could face “problems” with
“retaliation” were Congress to exercise jurisdiction “very far and
wide”); Brief for United States 47–48.
But, that possibility is no basis for erecting
constitutional barriers here. The “field of foreign affairs”
requires “delicate judgments, involving a balance that is the
prerogative of the political branches to make,” and these judgments
are “entitled to special respect.”
Jesner v.
Arab Bank,
PLC, 584 U.S. 241, 273 (2018) (plurality opinion). “Congress
has the undisputed power to decide . . . whether and
under what circumstances
foreign nations should be amenable
to suit in the United States.”
Verlinden B. V. v.
Central
Bank of Nigeria,
461 U.S.
480, 493 (1983) (emphasis added). That power is not diminished
simply because the United States does not recognize the sovereignty
of the foreign governmental entity at issue.
Although it is possible that Congress might
extend federal jurisdiction to such a degree that foreign actors
retaliate, “the controlling role of the political branches” remains
“both necessary and proper.”
Bank Markazi v.
Peterson, 578 U.S. 212, 234 (2016). After all, other
countries can exercise their jurisdiction in offensive ways, too.
And, if they do, our political branches may decide to enact
“ ‘retaliatory’ jurisdictional provisions” of their own. Born
15; accord,
e.
g.,
The Nereide, 9 Cranch 388,
423 (1815) (“If it be the will of the government to apply to Spain
any rule respecting captures which Spain is supposed to apply to
us, the government will manifest that will by passing an act for
the purpose”).
Applying constitutional limits to Congress’s
authority to enact such provisions would risk impeding the
political branches’ efforts to conduct foreign affairs in federal
litigation. That is no small matter. Civil litigation can be a
bargaining chip in foreign policy. As this Court has explained,
“[n]ot infrequently in affairs between nations, outstanding claims
by nationals of one country against the government of another
country are ‘sources of friction’ between the two sovereigns.”
Dames & Moore v.
Regan,
453
U.S. 654, 679 (1981) (quoting
United States v.
Pink,
315 U.S.
203, 225 (1942)). Following “ ‘established international
practice reflecting traditional international theory,’ ”
nations frequently enter into agreements to settle the claims of
their respective nationals.
Dames & Moore, 453
U. S., at 679; see also,
e.
g.,
Chas. T. Main
Int’l, Inc. v.
Khuzestan Water and Power Auth., 651 F.2d
800, 811 (CA1 1981) (collecting examples of the Federal Government
“extinguish[ing] claims of United States nationals against foreign
governments” in exchange for various concessions). Limiting the
political branches’ ability to extend extraterritorial jurisdiction
could stymie its use of this tool for international negotiation, in
turn sowing tension with the fundamental premise that foreign
policy is the domain of the political branches, not the federal
courts. See
Bank Markazi, 578 U. S., at 234; cf.
Ex
parte Peru,
318 U.S.
578, 589 (1943) (“[O]ur national interest will be better served
[if] cases . . . involving our relations with a friendly
foreign power, are righted through diplomatic negotiations rather
than by the compulsions of judicial proceedings”).
This potential intrusion on the political
branches’ authority supports what the historical evidence makes
clear: The Fifth Amendment’s Due Process Clause imposes no limits
on the Federal Government’s power to extend federal jurisdiction
beyond the Nation’s borders. See
supra, at 11–17.
* * *
The Court’s opinion does not foreclose the
“maximalist theory of federal jurisdiction” compelled by the
original understanding of the Fifth Amendment, but resolves the
cases without deciding whether that understanding is correct.
Ante, at 14. In my view, “historical evidence from the
framing” provides the proper framework for deciding these cases,
McIntyre, 514 U. S., at 370 (opinion of Thomas, J.),
and that evidence demonstrates that the Due Process Clause of the
Fifth Amendment places no territorial limitation on Congress’s
ability to call parties to answer.[
4] And, for the reasons explained, this conclusion
respects our deferential approach to the political branches’
“delicate judgments” in foreign affairs.
Jesner, 584
U. S., at 273 (plurality opinion).
Insofar as the Fifth Amendment’s Due Process
Clause requires deprivations of life, liberty, or property to
accord with “those settled usages and modes of proceeding existing”
at common law,
Murray’s Lessee, 18 How., at 277, the PSJVTA
plainly meets that standard. Nothing on the statute’s face or in
its application here deprives respondents of an independent judge,
“regular allegations, opportunity to answer, [or] a trial according
to some settled course of judicial proceedings.”
Id., at
280. And, even assuming that the law of nations might otherwise
supply a rule of decision and that the PSJVTA’s jurisdictional
provisions are in tension with such a rule—questions on which I
take no position here—those principles of international law are
defeasible presumptions that Congress unmistakably overrode when it
enacted the PSJVTA. In my view, the Fifth Amendment due process
inquiry ends there.
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