High Court Primed to Allow Suits Against Palestinian Groups (1)

The US Supreme Court appeared likely to uphold the latest attempt by Congress to allow suits against Palestinian groups over US citizens injured or killed in terror attacks abroad.

Noting that Congress is attempting to deal with the “recurring problem of terrorism,” Justice Brett Kavanaugh said at argument on Tuesday that courts shouldn’t second-guess the political branches in this area.

Courts shouldn’t be coming in and saying, “Gee, what Congress and the president are doing here to advance the national security and foreign policy interest in the United States strikes us, you know, from our perch, as unfair,” Kavanaugh said.

It was unclear how far the justices might go in ruling for the government, and whether they would reach a shared rationale.

At issue is the Promoting Security and Justice for Victims of Terrorism Act of 2019, which deems the Palestine Liberation Organization and Palestinian Authority to have consented to jurisdiction in US courts if they continue making payments to terrorists or their families, or undertake certain activities within the US.

The cases involve long-running suits like the one brought by the family of Ari Yoel Fuld, a US citizen who was fatally stabbed during a September 2018 terror attack in the West Bank.

“The case is old enough to go to law school,” said Arnold & Porter’s Kent Yalowitz, who represents the US citizens seeking to sue in federal courts.

The related litigation has a convoluted history which includes multiple attempts by Congress to intervene after adverse court rulings.

In the latest ruling, the US Court of Appeals for the Second Circuit said the congressional bid to haul foreign organizations into federal courts for events that happened abroad was unfair and violated due process.

The activities that Congress deemed sufficient aren’t the kinds of activities that typically imply “consent” to a being sued in a “foreign” court, the Second Circuit said.

Justice Department lawyer Edwin Kneedler urged the justices to reverse that determination.

“Congress’ judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference,” Kneedler said. “The act providing for jurisdiction here is eminently fair and does not deprive respondents of due process.”

Safety Valve

There are potential landmines for the justices, depending on how they rule.

One involves whether the court should limit the power of the executive branch and Congress to say when foreign groups can be sued, or if the justices should always defer to their judgment.

“Does this court have any role in saying that what Congress has done is improper?” Justice Neil Gorsuch asked. Or is the government advocating for “a safety valve for this court to overrule some instances” in the future?

“I’m reluctant to say that there is no role,” Kneedler said, but he couldn’t articulate what that might be.

Kavanaugh weighed in on the question. It “doesn’t strike me as the proper judicial role to seize on international law principles that might be lurking out there somewhere to tell the President and Congress together that somehow they’ve crossed some line,” he said.

‘Quite a Toy’

Another potential sticking point is whether the court should do anything to bring due process tests the court has set up for the 14th Amendment in line with the due process considerations in this case, which potentially arise under the Fifth Amendment.

The 14th Amendment generally governs how and when state courts can bring parties into their local courts, whereas the Fifth Amendment addresses when foreign entities can be brought within the reach of US courts.

The parties seemed to agree that there was tension between the tests that the court has articulated for both, even though they use identical language.

“So we have competing lines of precedent,” Justice Amy Coney Barrett said.

She said it might be best to just let the inconsistencies remain, rather than sort them out here. “Stay the course with the Fifth Amendment precedent, and, if they’re in tension, so be it?” she summarized.

And while the parties put forth various ways in the court might resolve any inconsistencies with the test lines of cases, Gorsuch suggested that would be a dangerous game for the court.

“It seems both sides would ask us to kind of play with that toy a bit,” Gorsuch said, referring to the inconsistent tests. “That’s quite a toy.”

The case is Fuld v. Palestine Liberation Organization, U.S., No. 24-20, argued 4/1/25.