The Supreme Court appears likely to uphold a law that allows American victims of Palestinian terror attacks to sue the Palestine Liberation Organization and Palestinian Authority for damages related to the organizations’ “pay for slay” program that rewards those who carry out attacks in Israel.

The justices on Tuesday heard oral arguments from two cases — one brought by a group of victims and family members, Fuld v. Palestine Liberation Organization, and the other, from the Justice Department, U.S. v. Palestine Liberation Organization. The lawsuits follow a years-long legal battle between Congress and the courts over whether the PLO and the PA can be held accountable for providing a monetary incentive for terror attacks.

Throughout the two-hour hearing the justices asked questions that appeared to show their skepticism of the argument by the PLO and the PA that granting victims the right to sue them in American courts law violated their due process rights. Several of the justices also seemed hesitant to curb the level of deference owed to Congress and the President on issues related to national security and foreign affairs. 

Justice Brett Kavanaugh argued that the role of the courts in reviewing these types of laws should be limited, offering broad deference to the president and Congress. While the courts should step in to ensure that “some other constitutional line” isn’t being crossed, he said, it is normally “a very sensitive judgment” for the courts. 

“Congress and the president are the ones who make fairness judgments when we’re talking about the national security and foreign policy of the United States,” Mr. Kavanaugh said. “Unless it crosses some other textually or historically rooted constitutional principle, courts shouldn’t be coming in.” Justice Neil Gorsuch similarly suggested that the high court “is not well-positioned” to impose limits on Congress’ authority over foreign relations.

The two justices appeared to align with the point offered by Deputy Solicitor General Edwin Kneedler, who, arguing on behalf of the Department of Justice, said that Congress is entitled “great defense” on “all issues of national security and foreign policy.” 

On the other hand, the attorney for the PLO and the PA, Mitchell Berger, argued that Congress has never been given unlimited power to determine what “due process” means under the Fifth Amendment. 

Some justices appeared less sensitive to the deference issue, voicing concern with telling Congress that there is “no limit” to its authority over international litigants. “You could conceive of a world in which that would be problematic,” Justice Ketanji Brown Jackson said. 

By the end of the hearing, however, “it seemed likely that Congress would not need to tinker further with the law,” according to legal analyst Amy Howe, who shared her prediction in ScotusBlog that the court would side with the plaintiffs. Such a conclusion was shared by Supreme Court reporter, Jimmy Hoover, in an analysis for Law.com, as well as by legal affairs reporter, Michael Macagnone, of RollCall. 

Not everyone is certain that the outcome is so clear cut, however. An attorney at Holtzman Vogel, Mark Pinkert, who helped file an amicus brief in support of the case, told JewishInsider, “I think there’s a lot of ways the court could skin the cat and I think there will be multiple opinions written, and it’ll be a really interesting decision.” 

At the center of the case is a 2019 measure passed by Congress, the Promoting Security and Justice for Victims of Terrorism Act, which allows terror victims to sue the PLO and PA for damages in American courts. Congress argued that consent was considered granted if the organization provided the terrorist with a monetary reward or if the organization conducted any recent activity within America. 

However, the legislation was shot down in 2024 with an appellate court ruling the law violates due process protections. “Congress cannot, by legislative fiat, simply ‘deem’ activities to be ‘consent’ when the activities themselves cannot plausibly be construed as such,” the Second Circuit argued. 

The case gained momentum in August 2024 Department of Justice later petitioned the Supreme Court to review the appellate court’s decision, suggesting that the ruling failed to acknowledge the government’s interest in deterring terrorism abroad.

Additionally, in February, a group of 17 prominent Jewish, pro-Israel, and civil rights groups filed an amicus brief with a similar request. “American citizenship has many benefits. One of them is the obligation of the government to protect its citizens when they are abroad,” said Marc Stern, the chief legal officer of AJC, one of the organizations behind the petition. 

The lawsuit, Fuld v. Palestine Liberation Organization, is named after American-Israeli Ari Fuld who was stabbed to death in 2018 by a Palestinian terrorist in the West Bank. 

“As my mother says, we’d rather not have this money,” Ari’s brother, Hillel Fuld, told the Sun. “What’s more important than the money is the symbolism of them having to pay us. It’s the very fact that our enemies will finally be held accountable.”

The family of Fuld’s murderer reportedly received a monthly salary of 1,400 shekels for three years following the attack. In the year of Fuld’s slaying, the PA reportedly budgeted 1.2 billion shekels to fund its “pay for slay” program. 

Although President of the PA, Mahmoud Abbas, claimed in February that the government would do away with the financial reward system, Israeli officials were quick to cast doubt on the report. Israeli Foreign Minister Gideon Sa’ar insisted that the PA just found a “different way”to dole out cash to terrorists and made the announcement “to fool the international community.” 

According to Middle East watchdog group, Palestinian Media Watch, hundreds of convicted Palestinian terrorists that were released from prison in Israel as part of the ceasefire and hostage exchange deal have received up to six figures through monthly salaries paid by the Palestinian Authority while they were in prison. 

The Supreme Court is expected to issue a decision by July.