Constitution: 101 – Why Individual States Are Not Permitted to Have Their Own Foreign Policy

     Generally, the United States Government is responsible for creating and implementing foreign policy. Foreign policy  is not the responsibility of individuals states. Otherwise, rather than being denominated the ”United States of America” we might as well be called the “Individual States of America.” Most states of  the Union seem to understand this. Florida, however, does not appear to be one of them.

     The idea that it is the Federal Government which creates foreign policy stems from a portion of the Constitution many people do not know about called the Supremacy Clause. The Supremacy Clause provides that Federal law shall be the Supreme law of the land and generally preempts state law.

     As a matter of Constitutional law, if there is a conflict between a federal law and a state law, courts generally defer to the federal law and override the state law. Florida lawmakers would do very well to remember this simple concept. However, shockingly, Florida legislators routinely seem to ignore this. Additionally, as a political matter, there appears to be general resistance to the idea that the federal government creates the supreme law of the land.  These issues have often resulted in court proceedings one of which has a very recent vintage and relates to an issue that is greatly controversial here in South Florida – – economic trade with Cuba.

     Odebrecht v. the Florida Department of Transportation, the United States Court of Appeals for the Eleventh Circuit was called upon to review the constitutionality of a law referred to as the “Cuba Amendment” enacted by the State of Florida and signed into law by Governor Rick Scott. Generally speaking, the Cuba Amendment was created in order to prevent any company that does business in Cuba, or does business with a company that does business in Cuba, from bidding on public contracts in the State of Florida.    Odebrecht, a construction company, historically did substantial business with the State of Florida.  Odebrecht itself did not do business with Cuba. However, one of its parent companies, based in Brazil, did. This created a problem for Odebrecht insofar as this created a potential violation of Florida’s Cuba Amendment.

     Odebrecht filed a lawsuit against the State of Florida seeking a preliminary injunction to prevent the enforcement of the Cuba Amendment. The United States District Court granted the injunction and the Eleventh circuit, on appeal, affirmed the injunction. In order to prevail on the injunction,  Odebrecht had to satisfy the four-part test required for a preliminary injunction:  (i)  a substantial likelihood of success on the merits of the underlying case; (ii) that the moving party would suffer irreparable injury in the absence of the requested injunction;  (iii) the harm suffered by the moving party would outweigh the harm suffered by the non-– moving party in the absence of the injunction; and (iv) the     deciding to uphold the injunction granted by the District Court , Eleventh Circuit on appeal relied upon the Supremacy Clause of the United States Constitution. Under this clause, the United States Congress has the ability to “preempt” state law. Preemption generally occurs when state law actually conflicts with federal law.

     The ultimate question decided by the Eleventh Circuit was the question of whether the Cuba Amendment created an obstacle to the enforcement of a well calibrated foreign policy as that policy relates to Cuba. The Court began its analysis by noting that there are many federal statutes already on the books which relate to United States economic policy towards Cuba. As most readers are aware, United States trade with Cuba is the subject of an embargo. The President of the United States, by executive order, has the right under Federal law to limit the ability of American citizens to trade with Cuba. Nonetheless, the regulations currently in place do not prevent a parent or subsidiary corporation located outside of the country from trading with Cuba.  Thus, the Court found that there was a conflict in between the Cuba Amendment and federal law. Moreover, while federal regulation generally restrict trade with Cuba, Federal statutes and regulations generally permit  certain exceptions which were not permitted by the so-called Cuba amendment. Accordingly, the Cuba Amendment was found to conflict with the federal statute.

     The Eleventh Circuit found that the Cuba amendment conflicted with federal statutes in at least three ways: (i) the Cuba Amendment punishes companies for doing business with Cuba in ways that would otherwise be permitted under federal law; (ii)  the Cuba Amendment has its own penalty provisions which are more extensive and severe than those in the federal statute; and (iii) the Cuba amendment undermines the President’s ability  to regulate trade with Cuba. As a result, the Eleventh Circuit found that Odebrecht satisfied the requirements for a preliminary injunction and enjoined the enforcement of the Cuba Amendment.


     In short, the case is a victory for the United States Constitution and the concept that the states are “United” and not able to enact statutes which conflict with federal statutes. While there are many areas left to be regulated by the states, foreign policy towards nations outside of the United States borders is not one of them and the Eleventh Circuit was correct in its decision to uphold an injunction enjoining the enforcement of the Cuba Amendment by the State of Florida.

For further information see and please read the actual opinion:

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One response to “Constitution: 101 – Why Individual States Are Not Permitted to Have Their Own Foreign Policy

  1. Pingback: Constitution: 101 – Why Individual States Are Not Permitted to Have Their Own Foreign Policy | The Florida Litigator

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