Amicus Curiae Brief — Miriam Fuld, et al., Petitioners v. Palestine Liberation Organization, et al.
Supreme Court briefFeb 4, 2025
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Nos. 24-20 & 24-151
In the
Supreme Court of the United States
________________
MIRIAM FULD, ET AL., PETITIONERS,
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.
________________
UNITED STATES, PETITIONER,
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.
________________
On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
________________
BRIEF OF PROFESSOR STEPHEN E. SACHS
AS AMICUS CURIAE IN SUPPORT
OF PETITIONERS
________________
STEPHEN E. SACHS
Counsel of Record
Harvard Law School
1557 Massachusetts Ave.
Cambridge, MA 02138
(617) 495-5009
ssachs@law.harvard.edu
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF THE AMICUS CURIAE .................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................... 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 7
I.
As an original matter, the Fifth Amendment
did not impose territorial restrictions on
Congress’s power over federal personal
jurisdiction............................................................. 7
II. Congress has not lost its power to call foreign
defendants to answer .......................................... 17
III. The Court may uphold personal jurisdiction
here without determining the full scope of
Congress’s powers ............................................... 26
CONCLUSION .......................................................... 31
ii
TABLE OF AUTHORITIES
Cases
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) ............................................. 19
Bartlet v. Knight,
1 Mass. 401 (1805) .............................................. 10
Bd. of Trs., Sheet Metal Workers’ Nat’l Pension
Fund v. Elite Erectors, Inc.,
212 F.3d 1031 (CA7 2000) ................................... 29
Beard v. Beard,
21 Ind. 321 (1863) ............................................... 14
Belcher v. Chambers,
53 Cal. 635 (1879) ............................................... 16
Bissell v. Briggs,
9 Mass. (9 Tyng) 462 (1813) .................................. 9
Bristol-Myers Squibb Co. v. Super. Ct.,
582 U.S. 255 (2017) ............................................. 18
Brunet v. Brooks,
288 U.S. 378 (1933) ............................................. 16
Burnham v. Super. Ct.,
495 U.S. 604 (1990) ............................................. 27
Calder v. Jones,
465 U.S. 783 (1984) ............................................. 21
D’Arcy v. Ketchum,
52 U.S. (11 How.) 165 (1851) .......................... 9, 10
Daimler AG v. Bauman,
571 U.S. 117 (2014) ............................................. 30
iii
EEOC v. Arabian Am. Oil Co.,
499 U.S. 244 (1991) ............................................. 19
Elasser v. Haines,
18 A. 1095 (NJ 1889) ........................................... 16
Flower v. Parker,
9 F. Cas. 323 (CCD Mass 1823) ................ 9, 10, 13
Hanson v. Denckla,
357 U.S. 235 (1958) ................................... 5, 26, 28
Hess v. Pawloski,
274 U.S. 352 (1927) ............................................. 30
Huntington v. Attrill,
146 U.S. 657 (1892) ............................................. 19
In re Sheehan,
48 F.4th 513 (CA7 2022) ..................................... 25
Ins. Corp. of Ir. v. Compagnie des Bauxites de
Guinee,
456 U.S. 694 (1982) ............................................. 30
Int’l Shoe Co. v. Washington,
326 U.S. 310 (1945) ................. 5, 17, 18, 22, 23, 25
J. McIntyre Mach., Ltd. v. Nicastro,
564 U.S. 873 (2011) ....................................... 18, 22
Jenkins v. Putnam,
1 S.C.L. (1 Bay) 8 (1784) ....................................... 8
Kempe’s Lessee v. Kennedy,
9 U.S. (5 Cranch) 173 (1809)............................... 15
Kibbe v. Kibbe,
1 Kirby 119 (Conn Super Ct 1786) ....................... 8
Kilburn v. Woodworth,
5 Johns. 37 (NY 1809) ........................................... 9
iv
Lauritzen v. Larsen,
345 U.S. 571 (1953) ............................................. 19
Lewis v. Mutond,
62 F.4th 587 (CADC 2023) .................................. 20
Mallory v. Norfolk S. Ry. Co.,
143 S. Ct. 2028 (2023) ..................................... 4, 30
The Marianna Flora, 24 U.S. (11 Wheat.) 1
(1826) ................................................................... 11
M‘Culloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ............................. 22
McCulloch v. Sociedad Nacional de Marineros
de Honduras,
372 U.S. 10 (1963) ............................................... 20
Mills v. Duryee,
11 U.S. (7 Cranch) 481 (1813)............................. 11
Mullane v. Cent. Hanover Bank & Tr. Co.,
339 U.S. 306 (1950) ............................................. 29
Murray v. The Schooner Charming Betsy,
6 U.S. (2 Cranch) 64 (1804)................................. 11
N.Y. Life Ins. Co. v. Head,
234 U.S. 149 (1914) ............................................. 19
N.Y. Life Ins. Co. v. Hendren,
92 U.S. 286 (1876) ............................................... 15
Nat’l Paint & Coatings Ass’n v. City of Chicago,
45 F.3d 1124 (CA7), cert. denied,
515 U.S. 1143 (1995) ............................................. 7
The Nereide, 13 U.S. (9 Cranch) 388 (1815) ............. 11
Pennoyer v. Neff,
95 U.S. 714 (1878) ..................................... 5, 15, 16
v
People’s Tobacco Co. v. Am. Tobacco Co.,
246 U.S. 79 (1918) ............................................... 27
Phelps v. Holker,
1 U.S. (1 Dall.) 261 (Pa. 1788) .............................. 8
Picquet v. Swan,
19 F. Cas. 609 (CCD Mass 1828) .... 4, 8, 11, 12, 14
Quill Corp. v. North Dakota,
504 U.S. 298 (1992) ............................................. 26
Rose v. Himely,
8 U.S. (4 Cranch) 241 (1808)............................. 8, 9
Shaffer v. Heitner,
433 U.S. 186 (1977) ............................................. 30
St. Clair v. Cox,
106 U.S. 350 (1882) ............................................. 27
State Farm Mut. Auto Ins. Co. v. Campbell,
538 U.S. 408 (2003) ............................................. 19
Toland v. Sprague,
37 U.S. (12 Pet.) 300 (1838) .......................... 12, 13
United States v. Yousef,
327 F.3d 56 (CA2 2003)....................................... 20
United States v. Yunis,
924 F.2d 1086 (CADC 1991) ............................... 20
Voorhees v. Jackson,
35 U.S. (10 Pet.) 449 (1836) ................................ 15
Walden v. Fiore,
571 U.S. 277 (2014) ......................................... 3, 21
Waldman v. Palestine Liberation Org.,
835 F.3d 317 (CA2 2016)..................................... 20
vi
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) ............................................. 24
Constitutional Provisions
Mass. Const. of 1780, pt. 1, art. XII .......................... 10
N.H. Const. of 1784, pt. 1, art. 15 ............................. 10
N.Y. Const. of 1846, art. I, § 6 ................................... 10
U.S. Const. art. I, § 8, cl. 10 ............................ 1, 14, 22
U.S. Const. art. III, § 2, cl. 1 ................................. 2, 28
U.S. Const. art. IV, § 1 .......................................... 2, 25
U.S. Const. art. VI, cl. 2 .................................. 4, 13, 25
U.S. Const. amend. V ..... 2-3, 6, 10, 17-18, 24, 25, 27-30
U.S. Const. amend. XIV .......... 2, 3, 6, 14, 15, 16, 26, 27
Statutes and Other Authorities
11 U.S.C. § 541 .......................................................... 25
15 U.S.C. § 6a ............................................................ 24
15 U.S.C. § 15 ............................................................ 27
15 U.S.C. § 22 ............................................................ 24
15 U.S.C. § 78aa .................................................. 25, 27
18 U.S.C. § 1965 .................................................... 2, 27
18 U.S.C. § 2334 ........................................................ 37
28 U.S.C. § 1652 .......................................................... 4
28 U.S.C. § 1738A ...................................................... 25
Fed. R. Bankr. P. 7004 .............................................. 25
Fed. R. Civ. P. 4 ......................................................... 25
vii
Born, Reflections on Judicial Jurisdiction in
International Cases, 17 Ga. J. Int’l &
Compar. L. 1 (1987)............................................. 24
Br. of Professor Stephen E. Sachs as
Amicus Curiae in No. 16-405 .............................. 25
Convention on Jurisdiction and the Recognition
and Enforcement of Judgments in Civil and
Commercial Matters (Lugano Convention),
2007 O.J. (L 339) 5 .............................................. 22
Convention on the Recognition and Enforcement
of Foreign Judgments in Civil or Commercial
Matters, July 2, 2019, U.N.T.S. No. 58036 ........ 23
Corrected Brief & Special Appendix for DefendantsAppellants in No. 15-3151 (CA2) ........................ 21
HCCH, Status Table, Convention of 2 July 2019
on the Recognition and Enforcement of
Foreign Judgments in Civil or Commercial
Matters (updated Sept. 19, 2024),
https://www.hcch.net/en/instruments/
conventions/status-table/?cid=137 ...................... 23
Sachs, Dobbs and the Originalists, 47 Harv. J.L.
& Pub. Pol’y 539 (2024) ......................................... 8
Sachs, Dormant Commerce and Corporate
Jurisdiction, 2023 Sup. Ct. Rev. 213 .................. 30
Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249
(2017) ............................................................... 9, 16
Sachs, The Unlimited Jurisdiction of the Federal
Courts, 106 Va. L. Rev. 1703 (2020) ..... 5, 7, 12, 15
viii
3 Joseph Story, Commentaries on the Constitution
of the United States (Boston, Hilliard, Gray &
Co. 1833) .............................................................. 14
J. Story, Commentaries on the Conflict of
Laws (Boston, Hilliard, Gray & Co. 1834) ........... 7
The Declaration of Independence (U.S. 1776) ............ 7
INTEREST OF THE AMICUS CURIAE
Stephen E. Sachs is the Antonin Scalia Professor of
Law at Harvard Law School. He teaches and writes
about civil procedure, constitutional law, and conflict
of laws, and he has an interest in the sound development of these fields.1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article I, Section 8 of the Constitution of the United
States provides in relevant part:
“The Congress shall have Power[:] * * *
To regulate Commerce with foreign Nations * * *;
To define and punish * * * Offences against
the Law of Nations; * * * —And
To make all Laws which shall be necessary
and proper for carrying into Execution the
foregoing Powers, and all other Powers vested
by this Constitution in the Government of the
1 No counsel for a party authored this brief in whole or in part,
and no counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. Harvard Law
School provides financial support for activities related to faculty
members’ research and scholarship, which may help defray the
costs of preparing this brief. (The Law School is not a signatory
to this brief, and the views expressed here are solely those of the
amicus curiae.) Otherwise, no person or entity other than the
amicus curiae has made a monetary contribution intended to
fund the preparation or submission of this brief.
2
United States, or in any Department or Officer thereof.”
Article III, Section 2, Clause 1 of the Constitution
provides in relevant part:
“The judicial Power shall extend to all Cases,
in Law and Equity, arising under * * * the
Laws of the United States, * * * [and] to Controversies * * * between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects * * * .”
Article IV, Section 1, of the Constitution provides:
“Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial
Proceedings of every other State. And the
Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.”
The Fifth Amendment to the Constitution provides
in relevant part:
“No person shall * * * be deprived of life, liberty, or property, without due process of law
* * * .”
Section One of the Fourteenth Amendment to the
Constitution provides in relevant part:
“[N]or shall any State deprive any person of
life, liberty, or property, without due process
of law * * * .”
3
Section 2334(a) of Title 18, United States Code,
provides:
“(a) GENERAL VENUE.—
Any civil action under section 2333 of this
title against any person may be instituted in
the district court of the United States for any
district where any plaintiff resides or where
any defendant resides or is served, or has an
agent. Process in such a civil action may be
served in any district where the defendant resides, is found, or has an agent.”
Other relevant statutory provisions have been set
out by the petitioners.
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
4
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 (2018). Yet Acts of Congress
can be “the supreme Law of the Land,” U.S. Const. art.
VI, cl. 2, overriding contrary doctrines and extending
beyond our borders to protect Americans abroad.
This Court should not bind the United States with
the fetters worn by individual states simply because
the latter have become so familiar—especially when
neither the original Constitution nor this Court’s precedents require it. As Justice Story recognized, Congress could have “a subject of England, or France, or
Russia * * * summoned from the other end of the globe
to obey our process, and submit to the judgment of our
courts”; such a statute might violate “principles of
public law, public convenience, and immutable justice,” but a federal court “would certainly be bound to
follow it, and proceed upon the law.” Picquet v. Swan,
19 F. Cas. 609, 613–15 (CCD Mass 1828) (No. 11,134).
If Congress had such powers at the Founding, it never
lost them since. So long as Congress’s power to call foreigners to answer is at least as broad as its power to
regulate their conduct abroad, the respondents here
were obliged to appear in the district court, and the
plaintiffs’ claims must be allowed to proceed.
5
1. As an original matter, the Fifth Amendment did
not place territorial restrictions on Congress’s powers
to call defendants to answer. Rules of personal jurisdiction predated the Due Process Clause; they were
rules of general and international law, which states
might override within their own courts but which
would be enforced by the courts of other states, as well
as by federal courts in diversity jurisdiction or under
the Full Faith and Credit Clause. To the extent the
issue arose in the early Republic, there was no question but that Congress could supplant these rules with
rules of its own design, just as it could use other enumerated powers to supplant other rules of international law. See generally Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703
(2020). After the Civil War, the Fourteenth Amendment enabled the better enforcement of jurisdictional
limits on state courts via federal-question review: to
deprive someone of life, liberty, or property through a
jurisdictionless judgment was to deprive them of these
things without due process of law. See Pennoyer v.
Neff, 95 U.S. 714, 732–33 (1878); see generally Sachs,
Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017). That
had no impact on federal courts, however, which already had to comply with the rules as set out by Congress and as understood by this Court.
2. Congress has not lost these powers since. While
the era of International Shoe Co. v. Washington, 326
U.S. 310 (1945), identified various “territorial limitations on the power of the respective States,” Hanson v.
Denckla, 357 U.S. 235, 251 (1958), this Court has
never reflected those limitations back onto the United
6
States as a whole. Instead, different principles of sovereign authority continue to apply via due process to
the federal government and to the states. Nor would
reversing this approach be harmless. Pretending that
the United States is simply one big state for personaljurisdiction purposes would limit the federal government in negotiating treaties and conducting foreign
relations. It would also interfere with federal laws on
antitrust, securities regulation, bankruptcy, and child
custody. The Court should not pretermit the political
branches’ consideration of these issues by deciding the
case on a mistaken due process claim.
3. To decide the case before it, this Court need not
determine the full scope of Congress’s jurisdictional
powers. The respondents here were served with process within the United States in a manner explicitly
authorized by statute, under clear Article I authority,
with subsequent enactments making it as clear as
Congress knows how that such service is to be held effective. The Court may uphold such service while leaving open the outer limits of what the Fifth Amendment
might permit, just as it has for the last two hundred
years. It also need not take any view of the parties’
complex arguments about formal and informal consent to jurisdiction, under either the Fourteenth
Amendment or the Fifth. But by the same token, the
Court should not rule out the possibility that Justice
Story was correct. As the Second Circuit’s judgment
can only be right if Justice Story was wrong, the Court
should reverse that judgment and remand.
7
ARGUMENT
I.
As an original matter, the Fifth Amendment
did not impose territorial restrictions on
Congress’s power over federal personal jurisdiction.
Showing that the Fifth Amendment did not stop Congress from extending personal jurisdiction abroad is,
as the Solicitor General notes, “an exercise in proving
a negative,” U.S. Br. 47 (quoting Sachs, Unlimited Jurisdiction, supra, at 1710–11). For a long while Congress did not try. The Judiciary Act required personal
service in the district where the defendant lived or was
found for jurisdiction in personam, while in rem jurisdiction traditionally required that the property attached be located or brought within the forum. See ch.
20, § 11, 1 Stat. 73, 79 (1789); J. Story, Commentaries
on the Conflict of Laws §§ 549–550, at 461–63 (Boston,
Hilliard, Gray & Co. 1834). So while the facts of
Founding-era federal cases often addressed events in
distant climes, see Pet. Br. 17–19, subconstitutional
law typically required the target of the litigation to be
present in the United States.
Even without examples of Congress asserting jurisdiction abroad, however, the history makes clear
that it had power to do so. Courts prove negatives all
the time, as they have to; otherwise they might be unable to reject a claimed due process right to buy spray
paint, see Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1129–30 (CA7), cert. denied, 515
U.S. 1143 (1995), simply because the Founders never
restricted its sale. What matters in assessing, say, a
8
due process right to chew gum is not whether the
Founders “did ban chewing gum * * * , but whether
the American legal system thought they could.” Sachs,
Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y
539, 555 (2024). And in the early Republic, when the
most authoritative figures in the American legal system discussed Congress’s power over personal jurisdiction, they consistently emphasized what Congress
could do—even to the point of calling a defendant
“from the other end of the globe.” Picquet, 19 F. Cas.
at 613 (Story, J.).
A. Congress’s broad power over personal jurisdiction followed ineluctably from the Founders’ understanding of the field. Personal jurisdiction at the
Founding was a topic not of constitutional law, but of
general and international law, enforced by both state
and federal courts.
Long before the Due Process Clauses, rules of personal jurisdiction were already enforced among the
states, derived from law-of-nations principles that defined each state’s sovereign authority. Under these
principles, if any government sought to exercise “a jurisdiction which, according to the law of nations, its
sovereign could not confer,” that government’s own
courts might enforce the resulting judgments, but
other courts would not. See Rose v. Himely, 8 U.S. (4
Cranch) 241, 276–77 (1808) (Marshall, C.J.). State
courts thus refused to recognize or enforce judgments
from other states that exceeded jurisdictional limits.
See, e.g., Jenkins v. Putnam, 1 S.C.L. (1 Bay) 8, 9–10
(1784) (per curiam); Kibbe v. Kibbe, 1 Kirby 119, 126
(Conn Super Ct 1786); Phelps v. Holker, 1 U.S. (1
9
Dall.) 261, 264 (Pa. 1788) (opinion of M‘Kean, C.J.);
Sachs, Pennoyer Was Right, supra, at 1269–73.
The same rules applied after Ratification. Early
state cases applying the Full Faith and Credit Clause
assessed other states’ judgments based on the same
personal jurisdiction principles that had applied when
they had all been “Free and Independent States.” The
Declaration of Independence para. 32 (U.S. 1776); see
Bissell v. Briggs, 9 Mass. (9 Tyng) 462, 464–68 (1813);
Kilburn v. Woodworth, 5 Johns. 37, 41 (NY 1809) (per
curiam) (citing Phelps and Kibbe); see generally Sachs,
Pennoyer Was Right, supra, at 1273–78. As this Court
made clear in D’Arcy v. Ketchum, state personal jurisdiction was subject to the “well-established rules of international law, regulating governments foreign to
each other.” 52 U.S. (11 How.) 165, 174 (1851).
When state legislatures attempted to expand their
courts’ jurisdiction, their efforts were likewise restricted by international law, for “beyond its own territory” a legislature could “only affect its own subjects
or citizens.” Rose, 8 U.S. at 279. In Flower v. Parker,
Justice Story on circuit refused to allow a Massachusetts personal-jurisdiction statute to bind an absent
citizen of Louisiana, as “the legislature of a state can
bind no more than the persons and property within its
territorial jurisdiction.” 9 F. Cas. 323, 324 (CCD Mass
1823) (No. 4891). The Court in D’Arcy similarly disregarded as ultra vires a New York statute asserting jurisdiction over other states’ citizens by process served
on their local business partners. As the Court explained, such a judgment would be void without the
defendant’s consent or personal service in New York,
10
for under “the international law as it existed among
the States in 1790[,] * * * neither the legislative jurisdiction, nor that of courts of justice, had binding force.”
52 U.S. at 176.
The Fifth Amendment played no significant role in
these doctrines. Both state and federal courts consistently understood legislative and judicial jurisdiction
as the product of international principles, not of the
Due Process Clause or its state-constitutional equivalents. If a party sought the recognition and enforcement of a state judgment in a federal court (as in
Flower or D’Arcy), the international-law inquiry would
cover the waterfront: either the state judgment complied with the rules, in which case recognizing it posed
no constitutional problem, or it did not so comply, in
which case recognition would be refused on ordinary
subconstitutional grounds. The Fifth Amendment
simply never came into it.
The same was true of state constitutions. At the
same time that Massachusetts refused to enforce a
New Hampshire judgment obtained by exorbitant
means (albeit means used in “many of the States, of
which this is one,” Bartlet v. Knight, 1 Mass. 401, 410
(1805) (opinion of Sedgwick, J.)), both states had “law
of the land” clauses in their constitutions, see Mass.
Const. of 1780, pt. 1, art. XII; N.H. Const. of 1784, pt.
1, art. 15, but neither invoked these clauses to restrain
the reach of their courts. Likewise, New York’s constitution at the time of D’Arcy contained an exact replica
of the Fifth Amendment’s Due Process Clause, see
N.Y. Const. of 1846, art. I, § 6, but not a single Justice
brought it up. Due process was simply not the issue.
11
B. To the extent that jurisdictional rules were derived from principles of international law rather than
of due process, Congress might have been presumed to
respect them, but it could also choose to override them.
See generally Murray v. The Schooner Charming
Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); see also The
Marianna Flora, 24 U.S. (11 Wheat.) 1, 39–40 (1826);
The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815). And
in the rare cases in which jurists directly discussed the
issue, they consistently described Congress’s power
over federal personal jurisdiction in expansive terms.
In Mills v. Duryee, for example, Justice Johnson
worried that a federal statute, if misconstrued, might
enforce state judgments obtained through jurisdictionally dubious means. 11 U.S. (7 Cranch) 481, 486
(1813) (Johnson, J., dissenting). He described as an
“eternal principle[] of justice” the rule that states may
not call to answer “persons not owing them allegiance
or * * * found within their limits,” a rule “Courts of
justice never can dispense with but when compelled by
positive statute.” Id. (emphasis added). And he made
clear that “[i]f a different decision were necessary to
give effect to [the Full Faith and Credit Clause], and
the act of 26th May, 1790, I should not hesitate to yield
to that necessity.” Id.
Justice Story took the same approach in Picquet.
There Congress had incorporated certain state procedures by reference—including, according to the plaintiff, state laws playing jurisdictional tricks that international law would otherwise forbid, such as basing in
personam jurisdiction on an attachment of minor
property. See 19 F. Cas. at 609–10, 614. Justice Story
12
acknowledged that these state laws, though in tension
with “the law of nations,” id. at 611, might be valid
within the state’s own tribunals: “it is not for us to say,
that such legislation may not be rightful, and bind the
state courts.” Id. at 614. But even as he denounced the
notion that “an alien, who has never been within the
United States,” might “be bound thereby to appear,”
Justice Story made one thing clear: “If congress had
prescribed such a rule, the court would certainly be
bound to follow it, and proceed upon the law.” Id. at
615 (emphasis added).
Despite the breadth of the plaintiff’s theory, that “a
subject of England, or France, or Russia, having a controversy with one of our citizens, may be summoned
from the other end of the globe to obey our process, and
submit to the judgment of our courts,” id. at 613—and
despite finding it inconsistent with “public law, public
convenience, and immutable justice,” id. at 614—Justice Story did not suggest that it was in any tension
with the Fifth Amendment, though “now was the time
to say so.” Sachs, Unlimited Jurisdiction, supra, at
1716. Rather, he argued only that “[s]uch an intention
* * * ought not to be presumed” by federal courts without “irresistible proof” that “congress have, in an unambiguous manner, made it imperative upon them,”
id. at 613–14. The sole question, as Justice Story saw
it, was “whether such a rule ought to be inferred from
so general a legislation as congress has adopted”—for
if so, he would “proceed upon the law.” Id. at 615; see
Sachs, Unlimited Jurisdiction, supra, at 1714–16.
This Court soon endorsed Justice Story’s reasoning
“as having great force.” Toland v. Sprague, 37 U.S. (12
13
Pet.) 300, 328 (1838). Here a plaintiff again tried to
incorporate state jurisdictional shenanigans by reference, id. at 327; again the Court concluded that the
federal statute forbade that, id. at 328; and again it
reasoned that Congress might have, but under the circumstances had not, “acted under the idea that the
process of the circuit courts could reach persons in a
foreign jurisdiction,” id. at 330. Indeed, three Justices
dissented on this very point, invoking the support of a
number of circuit courts which read the statute to enable jurisdiction over a defendant “not an inhabitant
of the United States.” See id. at 336–37 (Taney, C.J.,
dissenting); id. at 337 (Baldwin, J., dissenting) (stating that he “would go further as to the authority of the
courts of the United States”); id. at 337–38 (Wayne, J.,
dissenting); cf. id. at 338 (opinion of Catron, J.) (expressing uncertainty on the point).
As an international matter, of course, as Justice
Story had written in Flower, “[n]o legislature can compel any persons, beyond its own territory, to become
parties to any suits instituted in its domestic tribunals.” 9 F. Cas. at 324–25. But “[i]f congress had prescribed such a rule,” Picquet, 19 F. Cas. at 615, it could
override any international law to the contrary. A federal jurisdictional statute would be binding in both
federal and state courts, for Acts of Congress were the
“supreme Law of the Land,” with “the Judges in every
State * * * bound thereby.” U.S. Const. art. VI, cl 2.
Additionally, Congress had enumerated power to
“make all Laws which shall be necessary and proper
for carrying into Execution” not only its own legislative powers, but also “all other Powers vested by this
14
Constitution in the Government of the United States,
or in any Department or Officer thereof.” Id. art. I, § 8,
cl. 18. That included carrying into execution the Article III heads of jurisdiction, which were among of the
“Powers vested” in the judicial department. And one
way to carry into execution the power to hear controversies between citizens and aliens might be for “a
subject of England, or France, or Russia, having a controversy with one of our citizens, [to] be summoned
from the other end of the globe to obey our process, and
submit to the judgment of our courts.” Picquet, 19
F. Cas. at 613. As Justice Story later put it, “in all
cases, where the judicial power of the United States is
to be exercised, it is for congress alone to furnish the
rules of proceeding, to direct the process, [and] to declare [its] nature and effect.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1752,
at 625–26 (Boston, Hilliard, Gray & Co. 1833) (emphasis added).
C. The Fourteenth Amendment did nothing to diminish Congress’s power over personal jurisdiction.
Rather than altering the jurisdictional rules or reassigning the authority to change them, the Amendment
provided a new means for federal courts to enforce the
preexisting limits on state sovereign authority.
When the Fourteenth Amendment was written,
there would have been no reason to assume that the
phrase “due process of law” imposed any new rules of
personal jurisdiction. Only a few state courts had held
jurisdictional rules to have any state-constitutional
force; only one had phrased this holding in terms of
due process, see Beard v. Beard, 21 Ind. 321, 324
15
(1863), while the majority had adhered to the traditional approach described above. See Sachs, Unlimited
Jurisdiction, supra, at 1723 & nn.123–125.
But while personal jurisdiction had never been a
subfield of due process, there was still an important
connection between them. A judgment without jurisdiction was a “nullity,” Kempe’s Lessee v. Kennedy, 9
U.S. (5 Cranch) 173, 184 (1809) (Marshall, C.J.) (summarizing argument of counsel), or a piece of “waste paper,” Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 475
(1836); and a deprivation of life, liberty, or property
built on no better foundation than a piece of “waste
paper” was a deprivation without due process of law.
If a state court lacked personal jurisdiction over the
defendant, then executing its judgment against him
would violate the new Amendment’s guarantee.
So while the Fourteenth Amendment did not alter
the rules of personal jurisdiction, it did create a new
route to appellate review of a state’s compliance with
those rules. Prior to the Amendment, an exorbitant
state-court judgment could not be appealed to this
Court, as violations of general or international law did
not raise any federal question. N.Y. Life Ins. Co. v.
Hendren, 92 U.S. 286, 286–87 (1876). As Pennoyer put
it, “there was no mode of directly reviewing such judgment or impeaching its validity within the State
where rendered; and * * * it could be called in question
only when its enforcement was elsewhere attempted.”
95 U.S. at 732. But with the Amendment in place, such
judgments could be “directly questioned, and their enforcement in the State resisted, on the ground that
16
proceedings in a court of justice to determine the personal rights and obligations of parties over whom that
court has no jurisdiction do not constitute due process
of law.” Id. at 733 (emphasis added). In other words,
the Fourteenth Amendment made every state personal-jurisdiction ruling a ground for immediate federal-question review, measuring the state’s action
against the limits of its sovereign authority just as before. See Belcher v. Chambers, 53 Cal. 635, 643 (1879);
Elasser v. Haines, 18 A. 1095, 1097 (NJ 1889); Sachs,
Pennoyer Was Right, supra, at 1287–1313.
As this Court has explained in the context of jurisdiction to tax, the phrase “due process” in the Fourteenth Amendment does not encode some secret list of
jurisdictional rules, to be applied to the states and the
federal government both. Rather, it simply “requires
that the limits of jurisdiction,” whatever they are,
shall not be transgressed. That requirement
leaves the limits of jurisdiction to be ascertained in each case with appropriate regard
to the distinct spheres of activity of state and
nation. The limits of state power are defined
in view of the relation of the states to each
other in the Federal Union. The bond of the
Constitution qualifies their jurisdiction.
Brunet v. Brooks, 288 U.S. 378, 401 (1933).
The Fourteenth Amendment thus did nothing to
diminish Congress’s power over the personal jurisdiction of the federal courts. The Amendment acts as a
restraint on the states, not on the federal government.
And it imposes no particular design on the sovereign
17
authority of either the states or the federal government, but merely enforces the limits on the states’ sovereign authority, taking those limits as it finds them.
So the Fifth Amendment likewise plays no significant role in federal jurisdictional doctrine. If a federal
court renders a judgment under a personal-jurisdiction statute within Congress’s enumerated powers,
then it is acting within the scope of the sovereign authority conferred on the United States, and there is no
Fifth Amendment personal-jurisdiction problem to be
found. And if a federal court renders a judgment that
goes beyond its statutory authority, or if it acts under
a personal-jurisdiction statute that Congress lacked
enumerated power to pass, then the judgment would
be reversed on statutory or substantive constitutional
grounds, and again there is no role for Fifth Amendment personal-jurisdiction doctrines to play. To the
extent that Congress can act within the scope of its
sovereign authority to expand the jurisdiction of the
federal courts, neither the Fifth Amendment nor the
Fourteenth would interfere.
II. Congress has not lost its power to call foreign defendants to answer.
Nothing that has happened since the adoption of the
Fourteenth Amendment has deprived Congress of its
Founding-era power to direct judicial process abroad
or to call foreign defendants to answer. In particular,
this power has not been constrained by the developments in Fourteenth Amendment jurisprudence under International Shoe Co. v. Washington, 326 U.S.
18
310 (1945), and its progeny. Such cases explicitly excepted the federal government from their scope, and
this Court’s due process precedents continue to treat
the federal government differently from the states. By
contrast, reversing that approach today and treating
the United States simply as one big state would
starkly alter the powers of the political branches, disrupting multiple statutory regimes.
A. In its post-International Shoe cases, this Court
repeatedly left open the question of Fifth Amendment
limits on the federal government—most recently in
Bristol-Myers Squibb Co. v. Superior Court, 582 U.S.
255, 269 (2017). That was entirely appropriate, because the reasoning of International Shoe and its progeny applies differently to the federal courts than to
those of the states.
The International Shoe Court reframed the preexisting due process inquiry to require that an in personam defendant who was “not present within the territory of the forum” must “have certain minimum contacts with it such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.” 326 U.S. at 316 (internal quotation marks
omitted). Yet what counts as fair play, according to
those traditional notions, itself depends on the scope
of a state’s sovereign authority. That is why International Shoe required “such contacts * * * with the state
of the forum as make it reasonable, in the context of our
federal system of government, to require the [defendant] to defend the particular suit which is brought
there.” 326 U.S. at 317 (emphasis added); cf. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011)
19
(opinion of Kennedy, J.) (describing how a defendant
might “fall within the State's authority”).
What is reasonable, in the context of our federal
system of government, may be very different for an individual state of that system than for the federal government itself. This distinction is recognized throughout the Court’s due process jurisprudence. For example, this Court has more than once held that states
lack power to apply certain prohibitions or penalties
to lawful conduct outside their borders, a disability the
Fourteenth Amendment’s Due Process Clause will enforce. See, e.g., State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003); BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 572 (1996); N.Y. Life Ins. Co. v.
Head, 234 U.S. 149, 161 (1914); Huntington v. Attrill,
146 U.S. 657, 669 (1892). No matter how broad a
power Nevada’s constitution might confer, for example, its legislature still cannot decide the speed limits
in New Jersey—not because anything in the Constitution says so, but because “[t]he general rules of international comity” continue to govern the several states.
Attrill, 146 U.S. at 669.
The treatment of the federal government is very
different. The United States can and does prohibit conduct outside its borders, so long as it falls within some
enumerated power in the Constitution. See, e.g.,
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248
(1991); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).
In exercising those powers, moreover, the United
States is not always bound to remain within the limits
of international law. It might be presumed that Congress adheres to those limits, see Charming Betsy, 6
20
U.S. at 118; but when Congress is explicit, and when
it acts within its constitutional powers, those instructions must be adhered to. See McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 21–
22 (1963). To the extent that courts of appeals have
considered due process challenges to extraterritorial
federal statutes, they have regarded the scope of federal regulatory authority as far broader than that of
any individual state. See, e.g., United States v. Yousef,
327 F.3d 56, 86, 109 (CA2 2003); United States v.
Yunis, 924 F.2d 1086, 1091 (CADC 1991).
Indeed, both the courts of appeals and the respondents in this case seem to recognize the necessity of distinguishing the scope of federal authority from that of
the states. Consider whether the district court would
have had jurisdiction in this case if the terrorists
whom these defendants rewarded had been targeting
Americans in particular—even had they acted out of
simple anti-American animus, with no aspiration to
influence our government’s deliberations or foreign
policy. If such attacks aimed at Americans abroad
would be treated differently—as both respondents and
the courts of appeals seem to envision2—then the federal courts are being treated differently as well, for
such jurisdiction is unavailable to the states.
2 See Lewis v. Mutond, 62 F.4th 587, 594 (CADC 2023) (accepting,
but finding insufficiently pled, a theory that defendants had “specifically targeted the United States” by “singl[ing] out” victims
“because they are Americans” (internal quotation marks omitted)); Waldman v. Palestine Liberation Org., 835 F.3d 317, 338
(CA2 2016) (distinguishing these facts from “terrorist attacks
21
For example: had Anthony Walden acted out of
simple anti-Nevada animus in detaining the cash of
Nevada resident Gina Fiore (perhaps because he considered Las Vegas tawdry), still “no part of [his] course
of conduct” would have “occurred in Nevada”; he would
still never have “traveled to, conducted activities
within, contacted anyone in, or sent anything or anyone to Nevada”; and “direct[ing] his conduct at plaintiffs whom he knew had Nevada connections” would
still “not create sufficient contacts" with the State of
Nevada, as opposed to residents thereof. Walden, 571
U.S. at 288–89. Indeed, Walden specifically rejected as
too expansive a test permitting state-court jurisdiction
when a defendant “(1) intentionally targets (2) a
known resident of the forum (3) for imposition of an
injury (4) to be suffered by the plaintiff while she is
residing in the forum state”—let alone while she travels abroad. Id. at 289 n.8; cf. id. at 288 (distinguishing
Calder v. Jones, 465 U.S. 783 (1984), on the ground
that there the “defendants’ intentional tort actually
occurred in California”); id. at 290 n.9 (emphasizing
the physical, as opposed to virtual, contacts “where the
conduct giving rise to this litigation took place”).
In other words, if the United States were really to
be treated as one big state, to be subjected to the In-
* * * specifically targeted against United States citizens”); cf. Br.
in Opp. 25 (insisting that “the attacks at issue were random attacks, not aimed at Americans”); Corrected Brief & Special Appendix for Defendants-Appellants in No. 15-3151 (CA2), at 46 (arguing that the record lacked evidence that “the attacks at issue
targeted the United States”).
22
ternational Shoe test unmodified, someone who murders Americans abroad specifically because they are
Americans (and with no other desire to influence policies in America) is immune from the jurisdiction of
American courts. The instinctive reaction to this position by both respondents and the court of appeals is
good evidence that it is untenable. Individual states
may have only limited powers to punish conduct outside their borders that is lawful where it occurs; but a
government authorized to regulate foreign commerce,
as well as to “define and punish * * * Offences against
the Law of Nations,” U.S. Const. art. I, § 8, cl. 10, also
has the “incidental or implied powers” to call those
who violate those regulations and commit those offenses before its courts. M‘Culloch v. Maryland, 17
U.S. (4 Wheat.) 316, 406 (1819).
B. Ignoring the difference in sovereign authority
between the United States and each individual state
would unduly limit the powers of the political
branches.
1. Consider the treaty power. If the United States
were to ratify the Lugano Convention, it would be committing to have tort suits heard “in the courts for the
place where the harmful event occurred”—something
currently forbidden when the defendant lacks contacts
there. Compare Convention on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil
and Commercial Matters (Lugano Convention), art.
5(3), 2007 O.J. (L 339) 5, with McIntyre, 564 U.S. 873.
Or if the United States were to ratify the Hague
Judgments Convention, which it has already signed,
23
see HCCH, Status Table, Convention of 2 July 2019 on
the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (updated Sept.
19, 2024), https://www.hcch.net/en/instruments/conventions/status-table/?cid=137, it would be obliged to
enforce certain foreign judgments “unless the activities of the defendant in relation to the transaction
clearly did not constitute a purposeful and substantial
connection to that State.” Convention on the Recognition and Enforcement of Foreign Judgments in Civil
or Commercial Matters art. 5.1(g), July 2, 2019,
U.N.T.S. No. 58036 (emphasis added). But if a transaction actually (albeit unclearly) failed to make the
necessary connection to the forum state, the treaty’s
obligations and those of International Shoe might conflict. Holding the United States bound by the International Shoe standard could render it unable to negotiate, ratify, or comply with such treaties, undermining
its efforts to secure reciprocal recognition for American judgments abroad. But if, instead, Fifth Amendment due process simply takes the rules for federal jurisdiction as it finds them, then the political branches
retain the power to adjust those rules by treaty.
2. Imposing one-big-state restrictions on federal jurisdictional powers would hamper our foreign relations in other ways as well. In particular cases, for example, Congress might have very good reasons to implement an otherwise objectionable jurisdictional regime. Following the examples of Austria, Belgium, Italy, and Portugal, Congress might choose to employ
“retaliatory” personal jurisdiction, subjecting foreign-
24
ers to our courts whenever Americans in similar circumstances would be subjected to theirs. See Born, Reflections on Judicial Jurisdiction in International
Cases, 17 Ga. J. Int’l & Compar. L. 1, 15 (1987). This
approach might involve the exercise of truly exorbitant jurisdiction, but only when foreign countries were
doing the same (and in an effort to get them to stop).
But if Congress is bound by a Fifth-Amendment copy
of International Shoe, then this tool for pursuing foreign relations and protecting Americans from aggressive courts would be lost. The Court should therefore
leave any worries about potential foreign retaliation
to the judgment of Congress, contra U.S. Br. 47–48,
rather than preemptively (and blindly) disable the political branches’ future conduct of foreign relations.
3. A number of existing federal statutes also assume that the federal government has broader personal-jurisdiction powers than it would have as one
big state under International Shoe. Federal antitrust
law, for example, applies to certain foreign commercial
activities with “a direct, substantial, and reasonably
foreseeable effect” on American imports, 15 U.S.C.
§ 6a(1), (1)(A) (2018)—even though “‘foreseeability’
alone has never been a sufficient benchmark for personal jurisdiction” in state courts under the Fourteenth Amendment. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 295 (1980). Yet Congress has
provided that process in such a suit may be served on
a foreign defendant “wherever it may be found” (that
is, worldwide), and that venue may be laid “in any district wherein it may be found or transacts business,”
15 U.S.C. § 22 (2018), whether or not those business
25
activities relate to the suit under the standard minimum-contacts test.
Similar language, both as to service and foreseeability, is found in the Securities Exchange Act. See 15
U.S.C. § 78aa(a)–(b) (2018). And federal bankruptcy
law enables the bankruptcy court to take jurisdiction
of the debtor’s property “wherever located” throughout
the world, 11 U.S.C. § 541(a) (2018), with worldwide
service of process and broad personal jurisdiction, see
Fed. R. Bankr. P. 7004(a)(1) (incorporating Fed. R.
Civ. P. 4(f), (h)); id. 7004(f)—though appellate courts
in the thrall of International Shoe have restricted the
bankruptcy courts’ ability to protect that property
from foreign interference, see, e.g., In re Sheehan, 48
F.4th 513, 520–22 (CA7 2022). Treating the Fifth
Amendment as imposing state-level constraints on the
United States would interfere with each of these statutory regimes.
Adopting the respondents’ theories would also pose
difficulties to Congress in regulating child custody
cases within the United States. The Parental Kidnaping Prevention Act uses Congress’s full-faith-andcredit power to “prescribe * * * the Effect” of state “judicial Proceedings,” assigning exclusive jurisdiction in
child custody cases to the courts of a single state. 28
U.S.C. § 1738A (2018); U.S. Const. art. IV, § 1. But the
state that Congress chose in its statute might not always be the same state that this Court’s state-court
due process jurisprudence would otherwise choose.
See Br. of Professor Stephen E. Sachs as Amicus Curiae in No. 16-405, at 20. If the International Shoe test
is written directly into the Fifth and Fourteenth
26
Amendments’ Due Process Clauses, as if in invisible
ink, see Br. in Opp. 2 (arguing that Congress lacks
“power to authorize violations of the Due Process
Clause” (quoting Quill Corp. v. North Dakota, 504 U.S.
298, 305 (1992))), then Congress cannot override the
Fourteenth Amendment to consolidate child-custody
litigation in a single forum. But if the International
Shoe standard derives instead from more general principles defining the “territorial limitations on the power
of the respective States,” Hanson, 357 U.S. at 251,
then Congress might have the power to adjust those
limitations in particular cases (such as under the Full
Faith and Credit Clause), and its statute would be entirely valid.
In other words, accepting respondents’ theories
would drag this Court into deeper waters than respondents may realize. There is no reason to bring
these various federal powers into doubt.
III. The Court may uphold personal jurisdiction
here without determining the full scope of
Congress’s powers.
For the last two centuries this Court has left open the
question of exactly how far Congress may extend the
federal courts’ personal jurisdiction abroad. It should
continue to do so. Because this case may be decided
correctly without exploring the outer limits of the
Fifth Amendment, the Court should merely hold that
the service here was authorized by statute and was
constitutionally sufficient for the district court’s personal jurisdiction.
27
A. Section 2334(a) of Title 18 is a nationwide-service provision, enabling jurisdiction-creating “[p]rocess in such a civil action” to “be served in any district
where the defendant * * * is found.” This language is
common to many statutory regimes, see, e.g., 15
U.S.C. § 15(a) (antitrust laws); id. § 78aa(a) (securities
regulation); 18 U.S.C. § 1965(a) (RICO), and it has
been construed to apply to any place where the defendant is “present in the district by its officers and agents
carrying on the business of the corporation.” People’s
Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79, 84 (1918).
Thus, in Fuld, service was made at the defendants’ office on the Upper East Side; in Sokolow, service was
made personally to their chief representative in the
United States at his home. See Fuld, D. Ct. Docs. 8, 9;
Sokolow, D. Ct. Doc. 2; Pet. App. 239a; Pet. Br. 22. In
both cases, the defendants were present in such districts by officers or agents carrying on their business
there. They were not “only casually” present, St. Clair
v. Cox, 106 U.S. 350, 357 (1882), nor do they here contest the sufficiency of this service under Civil Rule 4.
In other words, as far as this Court is concerned,
defendants were served with process within the territory of the United States, where they were conducting
official business, and under a federal law making such
service effective. Just as the Fourteenth Amendment
recognizes in-state service as a permissible ground for
jurisdiction over the individuals served, see Burnham
v. Super. Ct., 495 U.S. 604 (1990), the Fifth Amendment does not forbid in-United-States service, as explicitly permitted by a federal statute, as a basis for
28
jurisdiction over the entities these individuals represent. The two subsequent statutes that Congress enacted to fend off contrary court decisions are icing on
the cake, making it as clear as humanly possible that
the statutory prerequisites to federal personal jurisdiction have been satisfied.
The initial federal statute providing for such service is squarely within Congress’s enumerated powers, moreover, and also within any “territorial limitations on the power of” the United States that the Fifth
Amendment’s Due Process Clause might enforce. Hanson, 357 U.S. at 251. Again, jurisdiction over foreign
terrorists who injure Americans—as well as over their
patrons—is a necessary and proper means of executing Congress’s powers to regulate foreign commerce
and to define and punish offenses against the law of
nations. Congress’s intraterritorial power over foreign
commerce likewise enables it to declare that when foreign entities like the defendants are “found” in the
United States, having established offices or sent representatives here, those representatives and the employees in those offices are legally capable of receiving
process on behalf of the organization.
B. This Court can say as much while reserving the
question whether extraterritorial exercises of jurisdiction are always within the territorial limitations on
Congress’s power, even when Congress might lack authority to supply the rule of decision. For example,
while Congress might lack enumerated power to rewrite French traffic laws, the Article III courts have
judicial power to hear a diversity suit by an American
against a Frenchman over an ordinary car accident on
29
the streets of Paris. Whether sending a summons to
France and calling the Frenchman to appear in a federal court is necessary and proper to carrying that
grant of jurisdiction into execution (or, indeed, within
the territorial limitations on the power of the United
States) is a question for another day—and one the
Court should explicitly reserve.
The Court can also avoid addressing any other
sorts of limits the Fifth Amendment might impose. For
example, even a Congress that summons defendants
from the other end of the globe might still have to afford them adequate notice, see Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950), and
perhaps could not deprive them of their day in court
by siting the litigation in a deliberately inconvenient
place (say, Adak, the furthest settlement of the Aleutian islands, see Bd. of Trs., Sheet Metal Workers’ Nat’l
Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031,
1036 (CA7 2000)). But there is no question that the
respondents here received adequate notice under Mullane, and the Manhattan courthouses of the Southern
District of New York are only a convenient subway
ride away from their permanent office on East 65th
Street. Whatever the outer limits of Fifth Amendment
due process might be, they are not implicated here.
Nor need the Court reach any fraught issues of implied consent. Because Congress framed its more recent enactments in such terms, the parties have debated at length whether the United States (or, indeed,
an individual state) may declare that a defendant’s engaging in certain activities within its borders, or re-
30
warding attacks on its residents abroad, will constitute consent to its personal jurisdiction. See Pet. Br.
33–46; U.S. Br. 22–30; Br. in Opp. 8–21. Such declarations raise the question whether any constitutional
difference exists between a defendant’s formal and informal consent, if both are equally knowing and voluntary. As there are a “variety” of means of obtaining a
defendant’s consent, Mallory, 143 S. Ct. at 2044 (opinion of Gorsuch, J.); see Ins. Corp. of Ir. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 703 (1982); compare Hess v. Pawloski, 274 U.S. 352, 356–57 (1927),
with Shaffer v. Heitner, 433 U.S. 186, 216 (1977), and
Daimler AG v. Bauman, 571 U.S. 117, 135 n.13, 138
n.18 (2014), some of which are more permissible than
others for the states to employ, see Sachs, Dormant
Commerce and Corporate Jurisdiction, 2023 Sup. Ct.
Rev. 213, exploring these questions may open up more
complex issues better left for other cases.
Instead, the simpler path is to recognize that the
Due Process Clauses indirectly enforce more general
limitations on sovereign authority, that the spheres of
sovereign authority of the United States and of the
several states are not the same, and that the Fifth
Amendment entails different limits on Congress and
the federal courts than the Fourteenth Amendment
imposes on state legislatures and courts. As this case
falls squarely within the extraterritorial powers of
Congress to regulate, and thus within the “territorial
limitations on [its] power,” Hanson, 357 U.S. at 251, it
also falls within its incidental and extraterritorial
powers to call defendants to answer for violating those
very regulations. The Court need say no more.
31
CONCLUSION
The judgment of the United States Court of Appeals for the Second Circuit should be reversed and
the case remanded.
Respectfully submitted,
STEPHEN E. SACHS
Counsel of Record
Harvard Law School
1557 Massachusetts Ave.
Cambridge, MA 02138
(617) 495-5009
ssachs@law.harvard.edu
February 4, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.