The Supreme Court on Tuesday appeared open to upholding a federal law that allows lawsuits against the Palestinian Authority and Palestinian Liberation Organization seeking damages from terror attacks.
During oral arguments in two cases, justices repeatedly suggested that they owed deference to Congress’ decision in 2019 to pass a law stating that the two organizations could be subject to lawsuits in the United States for activities such as processing payments for the families of individuals who attacked Americans or maintaining an office in New York.
The Supreme Court is considering whether to overturn a decision from the U.S. Court of Appeals for the 2nd Circuit that found the law violated the Constitution because those activities did not do enough to tie the groups to the United States courts.
Justice Neil M. Gorsuch and others on the court suggested that they should take stock of the fact that Congress and the president acted together to allow lawsuits against the groups.
If the Supreme Court found the law unconstitutional, the justices were “going to be second guessing the executive branch and Congress and the judgments they have made about what does or does not affect international affairs,” Gorsuch said.
Justice Brett M. Kavanaugh said the justices should only step in when there is a clear violation of the Constitution, not just concerns of “fairness” related to due process protections in the 5th Amendment to the Constitution.
“Congress and the president are the ones that make the fairness judgments” in foreign affairs, Kavanaugh said. “There is still a role for judicial review, to make sure they are not stepping over some other constitutional line.”
Congress has passed multiple laws with the stated intent of allowing suits against the PLO and PA over damages caused by terror attacks. The first was thrown out of court on constitutional grounds, and the second one targeted payments that the groups stopped taking before any lawsuits were filed.
The third and most recent, Promoting Security and Justice for Victims of Terrorism Act, passed as part of a consolidated appropriations bill in 2019.
The law included two “hooks” that would allow lawsuits against the groups — the payments they facilitate to family members of those who allegedly carried out attacks and the operations of the groups’ offices in the United States.
Edwin Kneedler, the deputy solicitor general, argued that Congress would have the authority to criminalize the payments or other actions by the two groups, and should be able to subject them to lawsuits, too.
“Congress’ judgment on these issues, as in all issues of national security and foreign policy, is due deference,” Kneedler said.
Mitchell R. Berger, arguing for the PLO and PA, said that historically, Congress has not had an unlimited ability to decide what “due process” means under the Fifth Amendment to the Constitution. Berger said the PA and PLO have not changed their conduct since the original court decision that threw out the lawsuits against them.
“We’re doing the same thing and Congress keeps moving the context around us,” Berger said.
The cases are Fuld v. PLO and U.S. v. PLO. The justices are expected to issue decisions in the two cases before the conclusion of the term at the end of June.
The post Supreme Court sounds open to lawsuits against Palestinian groups appeared first on Roll Call.
