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Stephen E. Sachs, Brief of Professor Stephen E. Sachs as Amicus Curiae in Support of Petitioners, Fuld v. Palestine Liberation Org. (2025).


Abstract: The temptation in Fuld v. PLO 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. As this limit is enforced under the Fourteenth Amendment’s Due Process Clause, and as the Fifth Amendment has a Due Process Clause too, it is tempting to conclude that the United States labors under precisely the same constraint, with the only difference being one of size. This temptation is to be resisted, for the United States is not simply one big state. True, neither the United States nor any state may deprive a person of life, liberty, or property without due process of law. But the United States and a single state differ greatly with respect to the external limits on their sovereign authority—that is, with respect to the principles the Due Process Clauses enforce and for which those Clauses have “become a refuge.” State laws are restricted to each state’s sphere of authority, serving as “rules of decision” only “in cases where they apply.” Yet Acts of Congress can be “the supreme Law of the Land,” overriding contrary doctrines and extending beyond our borders to protect Americans abroad. The Supreme 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.” 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 in Fuld were obliged to appear in the district court, and the plaintiffs’ claims must be allowed to proceed.