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Citing Preemption, USA*Engage and NFTC File Amicus Brief in Florida Travel Act Appeal
Date: 1/27/2009

Washington, DC – The National Foreign Trade Council (NFTC) and USA*Engage today filed an amicus curiae brief with the U.S. Court of Appeals for the Eleventh Circuit in support of the plaintiffs in the case of Faculty Senate of Florida International University vs. the State of Florida. The case revolves around the Florida Travel Act, a state law that inhibits academic travel from Florida to Cuba and other countries designated by the U.S. State Department as sponsors of international terrorism.
 
“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 and USA*Engage 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, please click here.

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Advancing Global Commerce for Over 90 Years
The National Foreign Trade Council (www.nftc.org) is a leading business organization advocating an open, rules-based global trading system. Founded in 1914 by a broad-based group of American companies, the NFTC now serves hundreds of member companies through its offices in Washington and New York.