Wednesday, September 08, 2010

Can Florida Have a Foreign Policy?

By Mike Dorf

Last week, in Faculty Senate of Florida International University v. Winn  (hereafter FIU), the 11th Circuit upheld a Florida law forbidding state universities from funding faculty travel to countries on the State Department's list of state sponsors of terrorism.  The law had been challenged as preempted by federal statutes and/or the Constitution itself.  Although the result may be just barely defensible, the 11th Circuit (per curiam) opinion is not especially persuasive.

The main argument advanced by the panel in FIU is that Florida is not legally obligated by federal law to fund academic travel to any foreign country and, more broadly, has discretion over how to use its funds.  The court draws a contrast between the Florida law and the law found to be preempted in Crosby v. National Foreign Trade Council.  There, Massachusetts imposed restrictions on trade with Myanmar/Burma that went beyond what a federal statute forbade.  In distinguishing Crosby, the 11th Circuit said that the Florida law "only prohibits spending Florida’s money to facilitate travel to countries determined by the federal government (not especially selected by Florida) to sponsor terrorism."  There are two arguments at work here, neither of them very effective.

First, the parenthetical reference to selection by name by the State invokes a distinction that has no obvious salience.  Several times the 11th Circuit repeats that Massachusetts singled out Burma, whereas Florida simply relied on a federal list.  But so what?  The federal list--state sponsors of terrorism--does not by itself have the consequences that Florida attaches to it, and it is those additional consequences that raise the preemption question.  Moreover, even if singling out were itself significant, Florida's reliance on a federal list rather than singling out a particular country could well be a sham anyway.  The currently listed state sponsors of terrorism are Iran, Sudan, Syria, and . . . wait for it . . . Cuba.  Hmm.  I wonder which country the Florida legislature was concerned about not funding travel to.

Second, the 11th Circuit can't really distinguish the Florida law from the law in Crosby on power-of-the-purse grounds because the Massachusetts law in Crosby was ALSO a limitation on the state's own expenditures.  As recited in the very first sentence of Justice Souter's majority opinion, it restricted "the authority of its agencies to purchase goods or services from companies doing business with Burma."  The 11th Circuit opinion gamely tries to argue that the Massachusetts policy really was different because it had a regulatory purpose and impact: By forbidding Mass agencies from doing business with 3rd parties doing business with Burma, the law sought to discourage those third parties from doing such business.  That's true, but also not much of a distinction: As the plaintiffs and the district court in FIU stressed, the Florida law doesn't just limit the expenditure of state funds; it also applies to private funds that the state administers.  So here too there is a de facto regulation of third parties.

Finally, the 11th Circuit suggested that the Florida law didn't have a substantial impact because not much money was involved and thus the withholding of that funding wouldn't have any noticeable effect on U.S. foreign policy.  I suppose it's possible to spin this out into a full-fledged explanation, but there had not heretofore been a de minimis exception to federal preemption.

The most interesting issue in the case is basically ignored: Is there a dormant foreign affairs power?  That is, even if the Florida law is not deemed preempted by any particular federal statute, might it still be invalid as usurping federal control over foreign affairs?  That issue was presented in Crosby but the Court didn't reach it.  Perhaps if the SCOTUS reviews FIU, it will have a chance to address it.