Citing Preemption, USA*Engage and NFTC File Amicus Brief in Florida Travel Act Appeal

Tuesday, 27 January 2009

“Our support for the educators in this case stems from the NFTC’s longstanding view that federal government action preempts states on matters of foreign policy,” said NFTC President and USA*Engage Co-Chair Bill Reinsch. The arguments made in the brief refer to the landmark 2000 U.S. Supreme Court decision in Crosby v. NFTC, which struck down a Massachusetts Burma sanctions law on constitutional grounds.

The brief was authored by Paul D. Clement, a partner in the Washington, D.C. office of King & Spalding and former Solicitor General of the United States, a position he held from June 2005 until June 2008. 
In the brief, the organizations highlight that federal actions including the Trading With the Enemy Act, the Cuban Democracy Act and the Cuban Assets Control Regulations preempt the Florida Travel Act, but also argue, “even beyond the preemptive effect of the existing federal statutory and regulatory regime, the Florida Travel Act represents an impermissible effort by Florida to adopt its own distinct foreign policy.”  

“The Constitution leaves little doubt as to which level of government was to address issues of ingress and egress with respect to our national borders,” reads the NFTC brief. “While states have the authority to adopt policies with incidental effects on foreign travel, there is nothing indirect or incidental about the Florida Travel Ban. It is an avowed effort to do the federal government one better when it comes to travel to state sponsors of terrorism. Under the constitutional scheme, Florida’s rejection of the national policy is plainly impermissible.”
The NFTC also argue that though the Florida Travel Act was intended to address Cuba-related foreign policy concerns, the Act has a broader, more intrusive impact, as it applies to all state sponsors of terrorism, who are subject to varying federal regulatory and legal regimes.

For a full copy of the brief, click here or the link below.