Anya Landau French: Groundhog Day in Florida

By Anya Landau French

Published March 14, 2012 in The Havana Note blog

Only in Florida can you have legislators so obsessed with another country that they routinely pass laws designed to punish said country even (and sometimes especially) when they harm that state’s own interests.

On March 9, the Florida legislature passed a law that would ban any of the state’s public contracts to be awarded to companies that also do business with Cuba.  The obvious target of the bill is Brazil’s Odebrecht, which has done quite well in Miami over the past couple of decades, and which is also behind the transformation of Cuba’s port at Mariel into a major caribbean shipping hub (no doubt in preparation for the day when U.S. rules preventing U.S.-bound liners are again allowed to freely stop in Cuba).  I’m not in a position to wade into whether Odebrecht should or shouldn’t win public contracts, except to say it seems to me they should win or lose on the merits, not the politics. 

The National Foreign Trade Council’s Dan O’Flaherty says the just-passed Florida law is unconstitutional – the constitution prohibits states legislating foreign policy matters in conflict with federal laws.  O’Flaherty cites a Massachusetts law that would have enforced a similar restriction on companies dealing with Burma.  That law was struck down by the U.S. Supreme Court in 2000. 

Perhaps the Florida legislature might be forgiven for its short memory on the subject.  Except that not quite three years ago, a 2008 law it passed to force U.S. charter companies to pay exceedingly high bonds to operate their flights to Cuba (which, had it taken effect, would have likely forced them out of business altogether) was struck down by a Federal District Judge in Miami.  That judge wrote:

“The State of Florida is not entitled to adopt a foreign policy under our Constitution or interfere with the exclusive prerogative of the United States to establish a carefully balanced approach to relations with foreign countries, including Cuba.”

The 2008 law never took effect.  I imagine that Florida taxpayers were thrilled to know that their tax dollars were nonetheless spent to defend a state law that was designed to put Florida businesses out of business and destined to be struck down by well-established judicial – Supreme Court, no less – precedent.

Does anyone want to take a guess as to how this new law might fare?  If the Governor signs this bill he will do so knowing that the state will again have to defend a law that is destined to be overturned. 

If Florida taxpayers ever figure out this vicious cycle of a boondoggle, they ought to be pretty steamed about it.  Defenders of the law claim this bill is needed to keep taxpayer dollars from going to companies that do business with the likes of Cuba.  Maybe there also needs to be a bill that keeps taxpayer dollars from being used repeatedly to defend the state legislature’s forays into what the constitution considers to be federal foreign policy.

Anya Landau French is the Director of the New America Foundation’s U.S.–Cuba Policy Initiative and the editor of The Havana Note. This commentary was originally published March 14, 2012 in The Havana Note blog

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