Florida Legislature Out of Order in Anti-Cuba Commerce Law | Angel Castillo Jr

From time to time, local and state lawmakers succumb to the narcissistic illusion that they are members of the U.S. Congress and therefore can legislate in the field of foreign policy. The latest such mass delusion involves a misguided effort by the Florida Legislature to restrict foreign companies’ commercial activities with Cuba.

During the most recent legislative session, House Bill 959 passed the Florida House, 115-0, and the Florida Senate, 39-1. It is worth mentioning that the only negative vote was cast by Sen. Larcenia J. Bullard, 64, a Democrat from Miami.

The bill prohibits companies that do business with or in Cuba, including through subsidiaries, from contracting with Florida state agencies or local governments for goods or services worth at least $1 million.  For good international measure, the amendment also applies to Syria which, like Cuba, is listed by the U.S. State Department as a state sponsor of terrorism.

"Business operations" are defined broadly to include: “engaging in commerce in any form in Cuba or Syria, including, but not limited to, acquiring, developing, maintaining, owning, selling, possessing, leasing, or operating equipment, facilities, personnel, products, services, personal property, real property, military equipment, or any other apparatus of business or commerce.”

Gov. Rick Scott has until Saturday, May 5, to approve the law, veto it, or let it become law without his signature. Unless vetoed, the law will take effect July 1 and will impact a number of important companies from Canada, Brazil, and other countries doing business in both Florida and Cuba.  Companies that do not properly disclose their business ties to Cuba will face a penalty equal to the greater of $2 million or twice the amount of their Florida contracts.

The new law is likely unconstitutional under the “Supremacy Clause” of the U.S. Constitution, which provides that the "Constitution, and the Laws of the United States … shall be the Supreme Law of the Land."  This means that when the federal government exercises the powers given to it in the Constitution, its actions must prevail over any conflicting or inconsistent state laws.

In 2000, the U.S. Supreme Court unanimously found unconstitutional, under the Supremacy Clause, a Massachusetts statute that sought to prohibit that state from contracting with companies doing business with Burma/Myanmar, then a pariah nation like Cuba and Syria.

It should be well known by most – one hopes by all – state and local lawmakers that the president of the United States and the U.S. Congress have exclusive constitutional authority in conducting the foreign relations of this country. 

Florida lawmakers can approve all the non-binding resolutions they want condemning the Cuban and Syrian regimes for all their crimes and abuses. However, the State of Florida does not need, and is not allowed under the U.S. Constitution, to have its own foreign policy. 

In times of budget constraints, Florida should not waste taxpayer dollars defending the new law against inevitable legal challengers.  Surely in Tallahassee, besides Sen. Bullard, at least Gov. Scott understands this.

Angel Castillo, Jr., a former reporter and editor for the New York Times and The Miami Herald, practices employment law in Miami. He can be reached at acastillo@floridavoices.com.

© Florida Voices