ENR has an interesting article about a legal challenge to Florida’s (the State not the rapper pictured right) new law that bars the awarding of public contracts to firms that have business interests in Cuba or Syria.   In the case mega-construction firm Oderbrecht seeks to invalidate the Florida law on several constitutional grounds.  First, Oderbrecht claims the law violates the supremacy clause.  Second, Oderbrecht claims the law unconstitutionally violates the foreign affairs power of the federal government.  Third, Oderbrecht claims the law violates Congress’ power to regulate commerce with foreign nations.  A copy of the complaint can be found here.  Odebrecht v. Prasad

Now, Cuba and Syria are near the top of my least favored nations list.  However, government policies that punish businesses for political reasons – even for things I agree with –  is worrisome.  I am not sure many conservatives would be too happy with Philadelphia passing a law barring the awarding public contracts to companies that do business with Smith & Wesson or some other firearms manufacturer.

From a legal perspective, it will be interesting to see how this case plays out.  It appears as if Oderbrecht may have an uphill battle.    At first blush, it appears that Florida is simply acting as a “market participant” rather than a regulating foreign affairs.  Indeed, the laws sanctions are directed at contractors not the sovereign nations of Cuba or Syria.   Then again, I am not an expert on the “foreign commerce clause” so it will be interesting to watch this case play out.  I certainly would not rule out some sort of compromise.

Would be great to hear the thoughts of the sage Chris McCabe over at papubliccontracts.com on this issue.

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