No. 10-1139

~n t~e ~uoreme C~urt ~ tl~e i~nitel~ ~tate~

FACULTY SENATE OF FLORIDA INTERNATIONAL

UNIVERSITY, et al.,

Petitioners,V.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the

Eleventh Circuit

BRIEF IN OPPOSITION

PAMELA JO BONDIAttorney GeneralScott D. MakarSolicitor GeneralLouis F. Hubener*Chief Deputy Solicitor GeneralTimothy D. OsterhausDeputy Solicitor GeneralState of FloridaOffice of the Attorney GeneralThe Capitol - PL 01Tallahassee, FL 32399(850) 414-3681(850) 410-2672 (fax)*Counsel of Record

B~ank page

QUESTIONS PRESENTED

(Restated)

I. Whether the decision of the Court of Appeals thatFlorida’s prohibition on state universities’ use of state ornon-state funds to support travel to terrorist statesconflicts with the decision of this Court in Crosby v.National Foreign Trade Council, 530 U.S. 363 (2000)?

II. Whether Florida is compelled to supportacademic travel to states that sponsor terrorism byfederal laws that do not prohibit travel to such states?

ii

PARTIES TO THE PROCEEDING

All parties to this proceeding are listed on thecover page of the Petition.

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TABLE OF CONTENTS

QUESTIONS PRESENTED .....................................i

PARTIES TO THE PROCEEDING .........................ii

TABLE OF CONTENTS .........................................iii

TABLE OF AUTHORITIES ....................................iv

JURISDICTION .......................................................1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED ..................................1

STATEMENT OF THE CASE .................................3

REASONS FOR DENYING REVIEW .....................9

I. The Decision of the Court of Appeals DoesNot Conflict With the Law of Preemptionor this Court’s Decision in Crosbv ..............10

II. The Federal Government May Not CompelStates to Support a Federal RegulatoryProgram, Whether Domestic or Foreign ....13

III. The Travel Act’s Restriction on the Use ofNon-State Funds is Not Preempted Under

Crosbv ..........................................................18

CONCLUSION .......................................................19

iv

TABLE OF AUTHORITIES

CASES

Am. Ins. Ass’n v. Garamendi,539 U.S. 396 (2005) ...........................................15, 16

Clark v. Allen,331 U.S. 503 (1947) ................................................16

Crosbv v. Nat’l Foreign Trade Council,530 U.S. 363 (2000) .........................................passim

Dekalb Count~ Sch. Dist. v. Schrenko,109 F.3d 680 (11th Cir. 1997) ...........................16, 17

Epperson v. Arkansas,393 U.S. 97 (1968) ..................................................16

Hines v. Davidowitz,312 U.S. 52 (1941) ..................................................11

New York v.United States,505 U.S. 144 (1992) .....................................10, 14, 15

Printz v. United States,521 U.S. 898 (1997) ..............................10, 14, 15, 18

San Antonio Indep. Sch. Dist. v. Rodriguez,411 U.S. 1 (1973) ....................................................16

Stanley v. Darlington Count~ Sch. Dist.,84 F.3d 707 (4th Cir. 1996) ....................................17

V

Wis. Dep’t of Industry, Labor & Human Relations v.Gould,475 U.S. 282 (1986) ................................................18

Zschernig v. Miller,389 U.S. 429 (1968) ................................................16

FEDERAL STATUTES

22 U.S.C. § 2780(f) ....................................................11

22 U.S.C. § 2349aa-9 ..................................................11

22 U.S.C. § 2370(a) .....................................................11

28 U.S.C. § 1254(1) .......................................................1

42 U.S.C. § 1983 ...........................................................3

50 U.S.C. §§ 1701-1707 ..............................................11

50 U.S.C. App. §§ 1-47 ...............................................11

STATE STATUTES

§ 112.061(3)(e), Fla. Stat ................................1, 2, 3, 12

§ 1011.90(6), Fla. Stat ...................................1, 2, 3, 12

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MISCELLANEOUS

Ramin Mostaghim, 2 American hikers inIranian prison plead not guilt,(, L.A. Times,Feb. 7, 2011, http://articles.latimes.com/2011/feb/07/world/la-fg-iran-trial-20110207 ........................8

Randal C. Archibold, Cuba Gives 15-yearPrison Term to American, N.Y. Times, Mar. 12,2011, http://www.nytimes.com/2011/03/13/world/americas/13cuba.html ........................................8

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JURISDICTION

The Court has jurisdiction over this matterpursuant to 28 U.S.C. § 1254(1). Petitioners’ motion forrehearing en banc in the Court of Appeals was deniedon October 28, 2010. The Court granted petitioners’timely motion for extension of time to file their Petitionuntil March 11, 2011.

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

Article VI, cls. 2, of the United StatesConstitution, the Supremacy Clause, provides:

This Constitution, and the laws of theUnited States which shall be made inpursuance thereof; and all treaties made,or which shall be made, under theauthority of the United States, shall be thesupreme law of the land; and the judges inevery state shall be bound thereby,anything in the Constitution or laws of anyState to the contrary notwithstanding.

Chapter 2006-54, Laws of Florida, entitled "AnAct Relating to Travel to Terrorist States," is codified inrelevant part in sections 112.061(3)(e)and 1011.90(6),Florida Statutes. These statutes provide:

None of the state or nonstate funds madeavailable to state universities may be usedto implement, organize, direct, coordinate,

or administer, or to support theimplementation, organization, direction,coordination, or administration of,activities related to or involving travel to aterrorist state. For purposes of thissection, "terrorist state" is defined as anystate, country, or nation designated by theUnited States Department of State as astate sponsor of terrorism.

§ 1011.90(6), Fla. Stat.

Travel expenses of public officers oremployees for the purpose of implementing,organizing, directing, coordinating, oradministering, or supporting theimplementation, organization, direction,coordination, or administration of,activities related to or involving travel to aterrorist state shall not be allowed underany circumstances. For purposes of thissection, "terrorist state" is a defined as anystate, country, or nation designated by theUnited States Department of State as astate sponsor of terrorism.

§ 112.061(3)(e), Fla. Stat.

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STATEMENT OF THE CASE

In 2006 the Florida Legislature enacted Chapter2006-54, Laws of Florida, entitled "An Act Relating toTravel to Terrorist States" (the "Travel Act"). TheTravel Act is codified in sections 112.061(3)(e) and1011.90(6), Florida Statutes. These provisions prohibitstate universities from using state or non-state funds tosupport travel to any "terrorist state," which is definedas a state designated by the United States Departmentof State as a sponsor of terrorism. They also prohibitreimbursement of travel expenses of state officers andemployees who may travel to such places.

The petitioners (plaintiffs in the district court)are the Faculty Senate of Florida InternationalUniversity and several professors and educationalresearchers who filed suit under 42 U.S.C. § 1983challenging the Travel Act on various constitutionalgrounds. Their amended complaint alleged the TravelAct violated the Supremacy Clause of the Constitution,the Foreign Affairs Power, the Foreign CommerceClause, and the First Amendment. Petitioners sought apreliminary injunction, which, following a hearing, thedistrict court denied. In his analysis of the Travel Act,Judge Adalberto Jordan concluded:

The Travel Act stands on a differentfooting than the law at issue in Crosby, asit does not diminish the President’s (orCongress’) flexibility or authority in therelations the United States has with thedesignated countries. Florida has notbanned travel to or from the designatedcountries, or imposed sanctions on those

who do business with or travel to or fromthe designated countries. It has onlylegislated that its funds will not be used fortravel to (or activities related to travel to)the designated countries. Individuals maystill travel to the designated countries aspermitted by the federal government, butwill simply have to pay their own way. Asthe defendants point out, accepting theplaintiffs’ conflict preemption argumentwould require me to adopt the theory that"because federal law does not prohibit alltravel to the listed countries, states likeFlorida must subsidize this travel to avoidimpermissible interference with federallaw." I am not aware of one casesuggesting that, in order to avoid conflictpreemption, a state must pay for anactivity that the federal government doesnot bar.

Pet. App. at 76a. Judge Jordan subsequently recusedhimself from the case and Judge Patricia A. Seitzundertook further proceedings.1

Petitioners then moved for summary judgment.At the conclusion of the hearing, the district court,unpersuaded by petitioners’ presentation, allowed themto present additional evidence and argument inposthearing submissions. Considering the additionalevidence and its impact on petitioners, Pet. App. 26a-

1 Both Judge Jordan and Judge Seitz invited the United States to

file a statement of interest. The United States declined to do so.

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30a, the court found that petitioners would not be ableto use grants from private sources for travel to Cuba.Pet. App. 47a. The court also found that stateuniversities would not assist petitioners in obtaining afederal license or by providing letters of introduction,although there was no evidence that any university hadbeen asked to do so or had refused to do so. Pet. App.45a-49a, 57a. The court concluded that the restrictionon use of non-state funds was an obstacle to attainmentof the full objectives of various federal laws andregulations governing travel and providing for sanctionson Cuba, Iran, Syria, and Sudan. Pet. App. 54a. Thecourt further asserted that the Travel Act "byprohibiting travel to the designated countries hasbarred something that the federal government expresslypermits." Pet. App. 57a (emphasis added).

The district court granted in part the motion forsummary judgment, holding that the Travel Act’srestriction on use of non-state funds--those university-administered funds from outside grantors--and anystate resources needed to administer non-state funds wasan "impermissible sanction" and "an obstacle to theobjectives of the federal government." Pet. App. 69a-70a. Accordingly, Judge Seitz found this restrictionviolated the foreign affairs power and was preempted byfederal law. Judge Seitz recognized, however, that aState’s decision on expenditure of its own funds wasentitled to deference, and so upheld the restriction onthe use of state funds. Pet. App. 43a-59a.

The State and the petitioners appealed.Prefacing its analysis, the Court of Appeals stated thatit agreed with Florida that "the distinction betweenstate-contributed funds and other funds administered

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by the State is one without a meaningful difference.The key point is this one: the use of both kinds of fundsresults in an expense to the State." Pet. App. 5a-6a &n.5. Avoiding the Tenth Amendment implications thatwould arise if federal laws were found to mandate statesupport, the Court of Appeals rejected the argumentthat the Travel Act clashed with federal law or policy:

No federal statute or regulationexpressly requires States to pay for foreigntravel for state university employees. Nofederal law says States cannot differentiateamong foreign nations when it comes tospending for academic travel. AndPlaintiffs do not contend that the Act hasbeen expressly preempted by a federalstatute.

Pet. App. 7a.

Because no petitioner had shown a present needfor a federal license for travel to Cuba, or for universityassistance in procuring a license, the Court of Appealsrejected as not ripe the as-applied claim that the TravelAct barred universities from providing information toassist an application for a license. Pet. App. 8a-9a, n.8.Petitioners no longer advance these as-appliedconstitutional challenges.2

2 Petitioners now argue the Act is facially invalid, contrary to their

insistence in the Court of Appeals that their challenge was as-applied. They argued in the Court of Appeals that "Appellant Stateof Florida misunderstands this case as a facial challenge to theTravel Act, while the District Court’s extensive examination of therecord and affidavits proffered by Plaintiffs-Appellees makes this(Continued ...)

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Addressing petitioners’ reliance on Crosby v.Nat’l Foreign Trade Council, 530 U.S. 363 (2000), theCourt of Appeals reasoned:

Crosby is a case in which a statestatute conflicted with definite andidentifiable federal laws on the samesubject ....

We think this case is different.Florida has not unilaterally selected byname a foreign country on which it hasdeclared, in effect, some kind of economicwar. Florida’s Act does not prohibit--as amatter of law--anyone from traveling anyplace. And especially unlike Crosby, it doesnot penalize anyone for aiding or otherwisepaying for someone else’s travel. It doesnot prohibit travel--as a matter of statelaw--where federal law allows travel. Itdoes not attempt to prohibit, or even toobstruct, trading broadly by anyone withanyone. Florida’s law is narrow. Nothingin the record shows that its practicalimpact, in reality, can be economicallygreat on other countries. It only prohibitsspending Florida’s money to facilitatetravel to countries determined by thefederal government (not especially selectedby Florida) to sponsor terrorism.

Pet. App. 10a-lla (footnote omitted).

quite clearly an as-applied challenge." Brief of Appellees at 11.

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The Court of Appeals acknowledged that Statestraditionally have had great control over spending,especially for education; that State resources arelimited; that concerns about faculty and student safetyare legitimate; that avoiding entanglement with foreignespionage is an appropriate consideration in financingforeign travel; and that a decision to fund academicwork in Country "A" but not "B" is not beyond a State’svalid powers. Pet. App. 11a-12a. It also observed thatgrantors of non-state funds were free to modify theirgrant requirements to avoid university management ofthose funds. Pet. App. 10a, n.9.3

The Court of Appeals concluded that Florida’s"traditional state interest in managing its own spendingand the scope of its academic programs" was sufficientto overcome "some indistinct desire on the part of the

3 Petitioners make light of any concern Florida has for its university

faculty and students who might travel to countries sponsoringterrorism. But as Florida pointed out early in the course of thiscase, the United States does not have normal diplomatic relationswith any country listed as a sponsor of terrorism. The detainmentor disappearance of faculty and students in these countries couldcause a university numerous difficulties. This Court might takejudicial notice of the fact that Iran has, since 2009, held captive twoyoung Americans accused of straying across the Iraq-Iran border.See Ramin Mostaghim, 2 American hikers in Iranian prison pleadnot guilty, L.A. Times, Feb. 7, 2011, http://articles.latimes.com/2011/feb/07/world/la-fg-iran-trial-20110207 (last visited Mar. 28,2011) (reporting first official court hearing after 18-monthimprisonment). Cuba recently sentenced to 15 years imprisonmenta contractor working in Cuba on behalf of the United States Agencyfor International Development. See Randal C. Archibold, CubaGives 15-year Prison Term to American, N.Y. Times, Mar. 12, 2011,http://www.nytimes.com/2011/03/13/world/americas/13cuba.html(last visited Mar. 28, 2011).

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Executive Branch or Congress to encourage generallyacademic travel," assuming that had been shown. Pet.App. 14a. The Travel Act, therefore, was not preemptedby federal law or violative of the foreign affairs powers.Pet. App. 14a-15a. Accordingly, the Court of Appealsaffirmed the district court’s ruling with regard to statefunds and reversed the judgment "with regard to non-state funds administered at state expense." Pet. App.15a.

Petitioners now seek review by this Courtcontending that Florida is constitutionally obligated touse its own resources both to fund travel to terroriststates and to administer non-state funds granted tosupport such travel.

REASONS FOR DENYING REVIEW

Petitioners have now abandoned the as-appliedchallenge to the Travel Act they pursued in the districtcourt and Court of Appeals. Their entire argument,rooted in repeated mischaracterization of Florida’sTravel Act, is based on purported conflict between thedecision of the Court of Appeals and this Court’sdecision in Crosbv v. Nat’l Foreign Trade Council, 530U.S. 363 (2000). No conflict exists between thesedecisions, nor does the Travel Act impose a penalty orsanction on anyone, prohibit travel, or usurp federalauthority. Indeed, a State’s decision to supportacademic travel to one country rather than another, andto take into consideration the safety of its faculty andstudents in making such decisions, does not present an

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important federal question that should be settled by thisCourt. See Supreme Court Rule 10(c).

Petitioners’ argument is fatally flawed foranother reason. It advances the unacceptableproposition that federal law and regulations--whatpetitioners call the calibrated system of "sticks andcarrots" intended to govern relationships with Cuba,Iran, Syria, and Sudan--compels the States to supportacademic travel to these regimes both with state fundsand with state resources needed to administer grantfunds. Such an application of federal law would plainlyviolate the Tenth Amendment as construed by thisCourt in Printz v. United States, 521 U.S. 898 (1997),and New York v. United States, 505 U.S. 144 (1992).While federal law may permit travel to terrorist states,and might even encourage academic travel, it cannotmandate the use of state resources to implement such aprogram. Printz, 521 U.S. at 935. Petitioners are notconstitutionally entitled to demand state support fortheir academic travel simply because federal lawpermits such travel.

The petition should be denied.

The Decision of the Court of Appeals DoesNot Conflict With the Law of Preemptionor this Court’s Decision in Crosby.

Petitioners now assert Florida’s Travel Act isfacially unconstitutional because it is preempted byfederal law and Presidential authority over foreignaffairs. State law may be preempted where it "standsas an obstacle to the accomplishment of the fullpurposes and objectives of Congress." Crosby v. Nat’l

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Foreign Trade Council, 530 U.S. 363, 373 (2000)(quoting Hines v. Davidowitz), 312 U.S. 52, 67 (1941)).Petitioners contend the Travel Act stands as an obstacleto the fulfillment of a host of federal laws andregulations that control relations with terrorist states.4

Contrary to the findings of the Court of Appeals, theyinsist the Act prohibits travel to terrorist states,penalizes individuals, usurps Presidential authority,singles out the listed states for disparate economictreatment, and implements a sanction that has no pointof termination. In matters relating to support ofacademic travel, petitioners even assert that thedecision in Crosby means that States have no power tocontrol their own fiscs. Pet. at 17.

Petitioners are wrong on all counts. Theirargument not only ignores, where it does not misstate,the plain language of the Travel Act and its effect, butsuggests an interpretation and application of the Crosbvdecision and federal law that is plainly unconstitutional.

The Travel Act does nothing more than withholdstate support for academic travel to countries listed bythe State Department as sponsors of terrorism.

4 Including, but not limited to, the International Security andDevelopment Act of 1985, 22 U.S.C. § 2349aa-9, the ForeignAssistance Act of 1961, 22 U.S.C. § 2370(a), the Arms ExportControl Act, 22 U.S.C. § 2780(f), the International EmergencyEconomic Powers Act, 50 U.S.C. §§ 1701-1707, the Trading with theEnemy Act, 50 U.S.C. App. §§ 1-47, the Export Administration Act,50 U.S.C. App. § 2402(13), the Iran and Libya Sanctions Act, Pub.L. 104-172, 110 Stat. 1541 (1996), and 31 C.F.R. parts 515 (CubanAssets Control Regulations), 535 (Iranian Assets ControlRegulations, 542 (Syrian Sanctions Regulations).

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§§112.061(3)(e) and 1011.90(6), Fla. Stat. The decisionof the Court of Appeals (as well as Judge Jordan’s orderdenying a preliminary injunction) correctly found theAct does not prohibit anyone’s travel where federal lawallows travel, does not attempt to prohibit or obstructtrade by anyone with anyone, and imposes no sanctionor penalty. Pet. App. 7a, 10a-11a, 76a. As the decisionfurther found, no federal law or regulation requiresStates to pay for foreign travel for their universityemployees. Nor does any federal law cited prohibitstates from differentiating among foreign nations withrespect to spending for academic travel. Pet. App. 7a,10a-11a. In fact, none says a word about the States’management of their universities. The Travel Actcannot be an obstacle to the fulfillment of federal lawsthat do not--and cannot--mandate States’ support ofacademic travel.

Petitioners’ reliance on Crosby is misplacedbecause Florida’s Travel Act bears no resemblance inpurpose or effect to the Massachusetts law there atissue. While the Florida law withholds support fortravel from state employees, the Massachusetts law,with minor exceptions, barred state entities frompurchasing goods and services from anyone doingbusiness with Burma. The obvious intent was to forcesuch persons to choose between doing business withMassachusetts or with Burma. This Court rightlyviewed the law as penalizing those persons doingbusiness with Burma and imposing a "state system ofeconomic pressure against the Burma political regime"that differed from the highly detailed sanctions thatCongress had enacted. Id. at 376, 378. TheMassachusetts law clashed with federal law because it

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undermined the discretion conferred upon the Presidentto control sanctions, penalized those whom federal lawdid not penalize, and interfered with Congress’ directiveto the President to use diplomatic means to craft anappropriate policy and strategy. Id. at 373-383. Thedecision also took note of numerous foreign objections,including protests from Japan and the European Union,as well as the opposition of the Executive Branch to theMassachusetts law. Id. at 383-386 and n.n. 21, 22.

In contrast, the Florida law penalizes no onedoing business in a terrorist state, interferes with nodiscretion conferred upon the President, and has elicitedno protest from any foreign government or the UnitedStates. As pointed out, the United States has twicedeclined to file a statement of interest in this case.

Petitioners also argue that Florida’s "sanction"has no point of termination. This doubly misreads thelaw. The Travel Act sanctions no one, and thewithholding of support for travel terminates once aforeign state is removed from the State Department’slist. If Cuba or another of the listed states wereremoved tomorrow, petitioners would be able to arrangetheir travel using any available state or non-state funds.

II. The Federal Government May Not CompelStates to Support a Federal RegulatoryProgram, Whether Domestic or Foreign.

The contention that the Travel Act is not a properexercise of Florida’s authority over its own budget iswithout merit. What petitioners seek here is not theinvalidation of a state sanction as in Crosbv, butaffirmative--that is, monetary--support from the State,

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which they contend is mandated by federal law.Assuming the United States has a finely tuned set oflaws and regulations imposing various sanctions uponterrorist states--in effect, a regulatory programgoverning relations with such states that does not forbidtravel--petitioners may not demand that Florida use itsresources to support such a program. This Court hassquarely rejected as violative of the Tenth Amendmentthe proposition that the federal government may compelStates to support federal regulatory programs:

We held in New York [v. United States] thatCongress cannot compel the States to enact orenforce a federal regulatory program. Todaywe hold that Congress cannot circumvent thatprohibition by conscripting the State’s officersdirectly. The Federal Government mayneither issue directives requiring the States toaddress particular problems, nor command theStates’ officers, or those of their politicalsubdivisions, to administer or enforce a federalregulatory program. It matters not whetherpolicymaking is involved, and no case-by-caseweighing of the burdens or benefits isnecessary; such commands are fundamentallyincompatible with our constitutional system ofdual sovereignty.

Printz v. United States, 521 U.S. 898, 935 (2000). TheSupremacy Clause does not confer any authority on thefederal government that would trump the TenthAmendment and allow the government to conscriptstate legislatures and universities. In this respect,there is no constitutional difference between a domestic

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regulatory program and one that regulates foreigninterests. Nor do petitioners so argue.

Moreover, while the President may to a degreeact independently of Congress in the conduct of foreignaffairs, see Am. Ins. Ass’n v. Garamendi, 539 U.S. 396,414-415 (2005), the Constitution confers no authority onthe President to coerce the States in the mannerpetitioners demand. The President has no moreauthority than Congress to institute a programrequiring that States support travel to terrorist states,or any foreign nation for that matter. See Printz, 521U.S. at 925 ("[T]he Federal Government may not compelthe States to implement, by legislation or executiveaction, federal regulatory programs."). And contrary topetitioners’ hyperbole, no President has tried to do so.

Petitioners have never in the course of thislitigation addressed the decisions in Printz and NewYork v. United States, 505 U.S. 898 (1992), and they donot do so now. They have obliquely sought to avoidthese decisions by arguing that they do not seekmonetary support for their travels but merely toinvalidate an impermissible state sanction. But that iswordplay. Their claim from the very beginning (whichJudge Jordan aptly perceived, see pp. 3-4, su_9_u_u_u_u_u_u_u_~ hasbeen that because federal law permits travel to terroriststates, Florida must subsidize that travel. They do infact contend that Florida’s resources may be conscriptedfor that purpose.

But even setting aside the constitutional defect intheir argument, petitioners vastly overstate their case.State laws may touch upon foreign interests and foreignaffairs in numerous and largely innocuous ways. This

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Court has long recognized that state laws are notpreempted merely because they have an "incidental orindirect" effect on foreign affairs. See Zschernig v.Miller, 389 U.S. 429, 434-435 (1968), and Clark v. Allen,331 U.S. 503, 517 (1947). The more recent decision inGaramendi did not foreclose consideration of thestrength of a state interest when the State is legislatingwithin an area of traditional competence. 539 U.S. at419-420 & n.11, 425-426. In Garamendi, California’sattempt to insinuate itself into a delicate foreignrelations problem--settlement of Holocaust erainsurance claims--clearly warranted the finding ofpreemption because it trespassed on federal efforts toresolve those claims and had a significant impact onforeign relations. The Travel Act has no comparableeffect.

Further, under our federal system the allocationof public funds for education is a basic attribute of statesovereignty. As this Court has acknowledged, "by andlarge, public education.., is committed to the control ofstate and local authorities." Epperson v. Arkansas, 393U.S. 97, 104 (1968). This Court has not sanctionedjudicial review of state funding decisions for education.See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.1, 44 (1973) (["F]ederalism is a foremost considerationin interpreting any of the pertinent constitutionalprovisions under which this Court examines stateaction; it would be difficult to imagine a case having agreater potential impact on our federal system than theone now before us, in which we are urged to abrogatesystems of financing public education presently inexistence in nearly every state."); see also DekalbCounty Sch. Dist. v. Schrenko, 109 F.3d 680, 689-690

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(11th Cir. 1997) (state’s power to determine level ofeducation funding is an element of sovereignty); Stanleyv. Darlington County Sch. Dist. 84 F.3d 707, 716 (4thCir. 1996) (it would violate the most basic motions offederalism for a federal court to determine theallocation of a state’s financial resources). Florida’sdecision to reserve its resources for the support ofacademic travel to countries that do not sponsorterrorism is an exercise of its sovereign legislativepower and it does not contravene any provision of theConstitution or federal law.

While it is true that a state law may not escapepreemption simply on the claim that it is an exercise ofa State’s spending power, what constitutes a sufficientobstacle to federal purposes is still a matter of informedjudgment. Crosby, 530 U.S. at 373 & n.7. If the TravelAct has any effect at all on foreign relations, petitionerscertainly have not proved it. They have abandoned theas-applied claims pressed in the district court and Courtof Appeals that the Travel Act, apart from withdrawingfunding and administrative support, prevented theirtravel to Cuba. The fact that the Florida law may notbe consistent with some imagined federal policy thatencourages travel to terrorist states presents no basisfor preemption:

Doubtless some state spending policies, likesome exercises of the police power, addressconduct that is of such peripheral concern...or that implicates interests so deeply rooted inlocal feeling and responsibility, thatpreemption should not be inferred.

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Wis. Dep’t of Industr_v, Labor & Human Relations v.Gould, 475 U.S. 282, 291 (1986) (internal quotationmarks omitted). Whether Florida supports academictravel to countries sponsoring terrorism can hardly be ofmore than peripheral concern to the federalgovernment, if that. And Florida’s interest in protectingits faculty, student, and administrative resourcesremains a deeply rooted, indeed a sovereign, stateinterest.

III. The Travel Act’s Restriction on the Use ofNon-State Funds is Not Preempted UnderCrosby.

In closing, petitioners argue that Crosbydemands the invalidation of the Travel Act as it appliesto non-state funds because "state restrictions on privatespending are even less within the state’s fiscalpurview," and Florida "has no legitimate interest inmanaging the private and federal grants that the TravelAct now restricts." Pet. at 32, 33. The expense to theState of administering non-state funds is, they suggest,minimal.

This argument, too, ignores the TenthAmendment and Pri____nt_~z’s bright line. The federalgovernment may not compel States, by legislation orexecutive action, to implement federal regulatoryprograms. 521 U.S. at 925. That the costs to a Statemay be slight, or even nonexistent, makes no difference."[N]o case-by-case weighing of the burdens or benefits isnecessary; such commands are fundamentallyincompatible with our constitutional system of dualsovereignty." Id. at 935.

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Petitioners are free to make other arrangementsfor use of non-state funds that do not involve universitymanagement, just as the Court of Appeals found. Pet.App. 10a, n. 9. The Travel Act does nothing to impedesuch arrangements.

CONCLUSION

For the foregoing reasons, the petition for a writof certiorari should be denied.

Respectfully submitted,

PAMELA JO BONDIATTORNEY GENERAL

SCOTT D. MAKARSOLICITOR GENERAL

LOUIS F. HUBENER*

CHIEF DEPUTY SOLICITOR

GENERAL

TIMOTHY D. OSTERHAUS

DEPUTY SOLICITOR

GENERAL

STATE OF FLORIDA

ATTORNEY GENERAL

THE CAPITOL - PL 01

TALLAHASSEE, FL 32399(850) 414-3681(850) 410-2672 (FAX)Counsel for Respondent*COUNSEL OF RECORD

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