Cuban Amendment an Illegal Bar to Job Bid

     (CN) – Florida cannot prevent a construction company whose parent firm has a subsidiary that performs work in Cuba from bidding on state-funded projects, a federal judge ruled.



     In May, Florida Governor Rick Scott approved the Cuban Amendment, which makes it illegal for companies doing business with Cuba to bid on government million-dollar contracts.
     Odebrecht Construction Inc. in Coral Gables, Florida sued Secretary of the Florida Department of Transportation Ananth Prasad seeking an injunction, claiming the Cuba Amendment violates the Supremacy Clause, the Foreign Affairs Power, and the Foreign Commerce Clause.
     On June 25, United States District Judge K. Michael Moore agreed and granted the temporary injunction.
     Moore analyzed the alleged Supremacy Clause violation first, writing, “The Cuba Amendment affords the President no discretion to control what amounts to a de facto economic sanction above and beyond what the federal government has decided to be the appropriate amount of economic sanctions.
     “The Cuba Amendment also regulates a broader set of entities and activities than federal law and imposes different penalties. It is worth repeating that the Cuba Amendment penalizes domestic entities for the business operations of their parent company. The Cuba Amendment’s effect thus reaches far beyond domestic interaction with Cuba… Moreover, the Cuba Amendment penalizes domestic companies having business operations in Cuba without exception… The Cuba Amendment also imposes different penalties than those prescribed by federal law.
     “Finally, the Cuba Amendment interferes with the President’s directive under the Libertad Act and other federal statutes to foster democracy and assist a democratically elected government in Cuba.”
     Moore agreed the Cuba Amendment may also violate the Foreign Affairs Power.
     He wrote, “Foreign relations involve the delicate balancing of issues, and the Cuba Amendment, the effect of which is exacerbated by the State of Florida’s traditional role as a flashpoint of United States-Cuba foreign policy, clearly possesses the potential to disrupt the federal government’s handling of these issues.” Continuing on to the Foreign Commerce Clause, Moore found, “Here, it is highly likely that the Cuba Amendment violates the Foreign Commerce Clause. The Cuba Amendment facially discriminates against foreign companies who do lawful business with Cuba by banning them from state procurement opportunities. This also amounts to an attempt by Florida to regulate economic activity beyond its borders that implicates foreign affairs and impairs federal uniformity.”

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