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Florida Limits on Ownership of Real Property by Chinese Citizens Are Preempted by Federal Law
So an Eleventh Circuit panel tentatively concludes, preliminarily enjoining the statute; one judge would hold that the limits violate the Equal Protection Clause.
From Shen v. Commissioner, decided yesterday by the Eleventh Circuit, in an opinion by Judges Adalberto Jordan, Kevin Newsom & Nancy Abudu:
In our view, the plaintiffs/appellants have shown a substantial likelihood of success on their claim that Florida Statutes §§ 692.201–692.204 are preempted by federal law, specifically 50 U.S.C. § 4565, the Foreign Investment Risk Review Modernization Act of 2018 ("FIRRMA"), and 31 C.F.R. § 802.701….
The defendants/appellees are preliminarily enjoined from enforcing the challenged statutory provisions against Ms. Shen and Mr. Xu. The motion for a preliminary injunction is otherwise denied.
Our decision, of course, does not bind the merits panel, which will hear oral argument in April.
Judge Abudu concurred:
While I agree with the above partial grant of the preliminary injunction, I write separately to explain why I also would have granted the preliminary injunction based on the Plaintiffs/Appellants' substantial likelihood of success on their argument that Fla. Stat. §§ 692.201–692.204 violate the Equal Protection Clause….
In 2023, Florida enacted SB 264 to restrict land purchases by any "[f]oreign principal," defined as "[a]ny person who is domiciled in a foreign country of concern and is not a citizen or lawful permanent resident of the United States." The law designates China, among other countries, as a "[f]oreign country of concern." Subject to a narrow exception, the law prohibits a "foreign principal" from "directly or indirectly own[ing] … any interest in real property on or within 10 miles of any military installation or critical infrastructure facility" within the state.
SB 264 specifically restricts "[a]ny person who is domiciled in the People's Republic of China and who is not a citizen or lawful permanent resident of the United States" from owning any interest in real property in Florida, regardless of where the property is located. While the law includes a narrow exception to this rule and a grandfather clause, any Chinese domiciliary must register their properties to avoid civil penalties. Additionally, those who violate the statute by acquiring land face criminal prosecution for a felony, while those who sell land could face misdemeanor criminal prosecution.
When Governor Ron DeSantis signed this bill into law, his office issued a press release, explaining that the bill was enacted to "counteract the malign influence of the Chinese Communist Party in the state of Florida," and that its passage showed that "Florida is taking action to stand against the United States' greatest geopolitical threat – the Chinese Communist Party," and that the state was "following through on [its] commitment to crack down on Communist China." Then, after the district court denied the Plaintiffs/Appellants' initial preliminary injunction, Governor DeSantis tweeted that the Department of Justice "sided with Communist China against Florida's law prohibiting CCP-tied entities from buying land in Florida…. Florida will continue to fight against CCP influence in our state." …
[The Equal protection Clause] protects citizens and non-citizens alike, meaning both are entitled to equal protection of the laws of the states within which they reside. Notwithstanding the Fourteenth Amendment's protections, one hundred years ago, the Supreme Court held that, "each state, in the absence of any treaty provision to the contrary, has power to deny to aliens the right to own land within its borders." The Court explained that state laws restricting non-citizens from purchasing and owning land were reasonably based on Congress' naturalization laws and that the "quality and allegiance of those who own, occupy and use the farm lands within [a state's] borders are matters of highest importance and affect the safety and power of the state itself."
Those holdings may have had support in 1923, but it is now 2024 where "state classifications based on alienage are subject to 'strict judicial scrutiny,'" absent the governmental function exception, Ambach v. Norwick (1979). Additionally, while the Supreme Court has not outright overruled the Terrace cases, the Court itself has called those cases' validity into question, and its more recent precedent is incongruent with the Terrace cases' holdings.
For example, in Graham v. Richardson (1971), the Supreme Court acknowledged that it had "upheld statutes that, in the absence of overriding treaties, … deny to aliens the right to acquire and own land," but explained that its later decision in Takahashi v. Fish & Game Commission (1948), had "cast doubt on the continuing validity of the special public-interest doctrine in all contexts." Later, in Ambach, the Court acknowledged that its decisions "regarding the permissibility of statutory classifications involving aliens have not formed an unwavering line," and noted the Court's gradual restriction of activities from which states "are free to exclude aliens."
Not only has the Supreme Court acknowledged the continuing degradation of the Terrace cases, but other courts around the country have as well. See Faruki v. Rogers (D.D.C. 1972) (noting that the Supreme Court's Graham case "made clear" that "state laws restricting aliens' power to own land … was based on obsolete premises"); Smith v. South Dakota (D.S.D. 2011) ("subsequent decisions by the United States Supreme Court expressly cast doubt on the [ ] validity of the special public-interest doctrine" (internal quotation marks and citation omitted)); Fujii v. State (Cal. 1952) (comparing the Terrace cases to later Supreme Court cases)….
Because SB 264 was enacted for the specific purpose of targeting people of Chinese descent, Plaintiffs/Appellants have shown a substantial likelihood of success on their claim that Fla. Stat. §§ 692.201–692.204 violate the Equal Protection Clause. The statute's language, the anti-Chinese statements from Florida's public officials, and SB 264's impact establish that the law is a blanket ban against Chinese non-citizens from purchasing land within the state. This prohibition blatantly violates the Fourteenth Amendment's protection against discrimination.
The district court denied the motion for a preliminary injunction based, in large part, on the Terrace cases. However, as set forth above, the Supreme Court itself and courts around the country have recognized that the state-based "alien" restrictions that were once legally upheld no longer stand constitutional muster. Therefore, the Plaintiffs/Appellants' equal protection claim should be reviewed under strict scrutiny. Under such review, as even the district court acknowledged, the Plaintiffs/Appellants "easily meet their burden of showing a substantial likelihood of success on the merits." …
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In the context of a preliminary injunction without precedential effect the concurrence is unnecessary or could be reduced to a single sentence.
Would we have had this discussion if the USSR had tried to buy up land?
1. China is not the threat the USSR was.
2. Our character during the Cold War was not something to look to as an example of virtue.
1. Assertion of facts not in evidence.
2. Then maybe you should have tried being on the US side of the Cold War.
1. The burden is on you to equate the threat from China with that of the USSR during the Cold War. Good luck.
2. I wasn’t old enough to take sides during the Cold War, and ‘oh yeah, you’re a communist!’ is such a weak rejoinder.
I don’t care but…
1. China is expanding influence in many countries to aid its side economically
2. China, like Russia, and the Soviet Union, is threatening military expansion.
3. China is so locally powerful, dictators orient towards it, as they do to Russia (Turkey).
4. Nasty behaviors to their citizens, and worse to certain segments.
Not sure what else needs comparison. They have more economic might than the USSR compared to the US? Oops, that’s even worse.
I would also say that the USSR mostly tried to subvert other countries by funding rebellions and revolutions, whereas China funds corrosive internal dissent and official corruption/bribery, in addition to debt-trap infrastructure projects (your #1).
Now you’re underselling China’s tactics when it comes to direct and open economic and cultural influence.
While also ignoring the USSR’s direct power projection during the Cold War.
You’re just really ignorant about foreign policy, eh?
China is locally powerful. That in and of itself makes it way below the USSR which was globally powerful.
The USSR in the Cold War was actually globally competitive with us. China is not. Not technologically, not culturally, not militarily, not diplomatically, not economically.
This is some impressive violence being done to history.
“The USSR in the Cold War was actually globally competitive with us. China is not. Not technologically, not culturally, not militarily, not diplomatically, not economically.”
I dunno if you have ever looked at WWII history, but you can see who is going to win pretty early by looking at industrial potential. A blog comment doesn’t allow much of a deep dive, so let’s just look at steel production: China in 2023 produced *12 times* as much steel as the US. For aluminum (wiki) it is 33 times.
As a sanity check, I found a CIA report from 1960 giving USSR steel production and a USGS paper with US numbers from the same period, and the USSR was producing about 2/3 as much pig iron, and maybe 110% of the finished steel as the US. Take those numbers with a grain of salt, but the US and USSR were in the same room production wise, in contrast with China today.
That’s economic. For military, we lived in Germany. When the balloon went up, Dad was going off to be a speed bump, Mom was going to give the supplied poison to the dog and bundle the kids into the car (they inspected it randomly to make sure you had a half tank of gas and food in the trunk) for a likely unsuccessful attempt to go west faster than the Sovs advanced.
Yes, we have shut down our steel and aluminum industries in the name of air pollution so far dirtier Chinese ones could dominate the market. It’s stupid.
Although WWII was unique in history — I don’t think that massive use of steel and aluminum will be as relevant in the next one. We’re not building battleships anymore, and the concept of a 100 plane bombing run isn’t in our tactics anymore.
25% of the bombs the USAAF dropped didn’t even explode — while we now have smart bombs. The next war will be fought with microprocessors and chips. Hence the relevance of Taiwan…
As an aside, I suspect you would have been able to outrun the Soviets — then as now they were corrupt and I trust you saw how many of their tanks couldn’t make it to Putin’s war because stuff had been sold off them.
Sarc: “This is some impressive violence being done to history.”
Yes. Violence. The people who disagree with you are violent.
GooooOOOO CHINA!!!!
Yes, I was saying history is a person and they should be in jail for battery.
Are you truly this stupid?
Speech is violence, man.
This law is about people, not foreign countries/governments.
This.
And there were some similar attempts way back when. California’s “Alien Land Law” was struck down in Sei Fuji v. State (1952).
Probably yes. Speaking not as an attorney, but someone who lives less than 20 miles from the 1400 acre property that was purchased by Chinese companies who want to build a primate research and breeding facility. HUGE numbers of monkeys. NO details on how to deal with monkey escapes, monkey virii or bacteria, monkey poop and pee control (to keep out of the aquifer . . .
I am not thrilled about prospects of lab leaks and contagion. And we’ve seen repeated recent examples of Chinese “science” that was clearly risky or even proscribed/forbidden. And the fact the monstro monkey facility is 35 miles from the University of Florida and its tens of thousands of students does not reassure me that “bad bugs” from monkeys and carriers couldn’t springboard around the world.
All totally practical concerns.
Primate *research* strikes me as dangerously close to what was going on in Wuhan….
Is there no idea too junky to escape your incidental promotion?
Doesn’t China have even more draconian restrictions on ownership? Like you can’t even buy land? So why do they get to snap up all our property and we can’t touch an inch of theirs? Fair is fair. This is based on country not ethnicity. Or should the 11th Circuit also go after the federal government for persecuting the poor chinese as we speak?
Those Chinese laws are probably not limited by the US Constitution or pre-emptable by US federal law.
This is based on country not ethnicity
https://en.wikipedia.org/wiki/Suspect_classification
“The Supreme Court recognizes race, national origin, religion and alienage as suspect classes; it therefore analyzes any government action that discriminates against these classes under strict scrutiny.”
A US constantly lowering itself to the standard of it’s enemies. How patriotic!
Citizenship of a foreign country is a mutable characteristic, and does not fall under strict scrutiny.
https://en.wikipedia.org/wiki/Graham_v._Richardson
“the Court applied the strict scrutiny standard, holding, “Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.””
“because the United States Congress has the power to regulate immigration, federal government action that discriminates based on alienage will receive rational basis scrutiny. “
Is it a state law or a federal law we’re talking about in the OP?
If its morally wrong for Florida to combat the CCP in this fashion than what Trump and now Biden are doing against them is definitely wrong. You should tell the Dems to stand down and let China run amok with all its underhanded economic and military shenanigans because fighting back is lowering ourselves to their level.
You sound like someone into Japanese internments.
We can deal with a malign foreign government while neither breaking the Constitution nor going after randos who were born there as though they were proxies for their country of birth.
If you are referring to the internment of American citizens of Japanese descent, that was an abomination, and one of the Supreme Court’s great failures.
We also interned citizens of Japan, Germany, and Italy, as most countries do during wars.
If the Florida law was prohibiting purchases by US citizens of foreign ethnicity, then your analogy would be apt.
And there WAS a REAL security issue. Jap subs HAD hit the West Coast (terrible marksmanship, but they did shell an oil refinery), and everything going to Hawaii or beyond had to leave California by ship.
Believe it or not, most of the California coast was wilderness at the time, anyone with a bright flashlight could signal a sub ofshore and tell them when/where ships would be leaving or had left and then it was just a case of the IJN’s radio to another sub. A tough decision but not unfounded.
No, completely unfounded. Disgraceful.
See 442 RCT. (That’s the 442nd Regimental Combat Team, not a case cite 🙂 ).
Equally likely: Americans of German ancestry signaling U-Boats off the Atlantic or Gulf coasts. And yet we didn’t decide to intern Eisenhower.
The principle AmosArch uses is not limited to foreign citizens.
And is it true that in the modern era countries intern the citizens of their opponent country?! Could be – learn something new every day. I would think they’d get deportation-happy.
“And is it true that in the modern era countries intern the citizens of their opponent country?! Could be – learn something new every day. I would think they’d get deportation-happy.”
I’d sure think so. I think the prerequisites would be a longish war between civilized nations. So, the Falklands might be too short to go around rounding up enemy aliens, and less civilized nations might not bother. But I would sure expect that if, say, Australia and New Zealand (thanks, Perun![1]) have a multi year war they wouldn’t just let enemy citizens wander free. I mean, if you were studying in Oxford and war broke out between the US and UK (maybe King Chuckie decides, like Putin, to reconquer old territories), wouldn’t you be looking to help the USA by espionage or sabotage or whatever?
I think deportation via some neutral country is fairly common (and happened in WWII, IIRC) but the logistics can take quite a while to arrange. But you don’t just enemy aliens run around unsupervised in the meantime.
[1]Pretty interesting youtube channel on military affairs
I think there may be more pushback than you do. But it’s all in the realm of the hypothetical.
Biden sure is going have ‘randos’ born in China as though they were proxies. (since they are) Tell him and those racist Dems to knock it off. He’s violating the Constitution persecuting Chinese companies and individuals and surrogates of those Chinese companies and individuals designed not to look like surrogates. Did you also know simply being a Chinese citizen can greatly decrease or completely bar you from certain jobs in the federal government? And if you asked most Dems officials they’d have no problem with this? Isn’t thats horrible? Its exactly like imprisoning American citizens based on their ethnicity!
You’re equating things that are not the same.
Your strawman about clearances is, as you do with anything to the left of Genghis Kahn, a strawman.
Our system of classification and clearance is part of why we get to stick to our principles when it comes to non national security stuff.
But nuance is not where you live. It’s no rights or blind equality. Anyone who disagrees on the no rights, must be for blind equality.
No wonder you’re angry all the time – your world is so black and white you must run into stuff constantly.
Land ownership has no effect on national security? lol wtf are you smoking?
You turned it into a moral issue. What is the big moral difference between restricting land purchase and restricting tech purchases and jobs other than your favored political candidate did the last two? Btw the Dems also widely in favor of piling on restrictions to Chinese purchases of land. You got a problem with this you have a problem with both parties.
Moral issues can and do have nuance. Impractical moral principles do not survive long in the real world.
You’re the one that has a problem with things being in the slightest bit complex.
What is the big moral difference between restricting land purchase and restricting tech purchases and jobs other than your favored political candidate did the last two?
These policies come way before any contemporary politics, of course.
Corporations, as it turns out, are not precisely the same as people. And tech purchases have national security implications that are real. On the other hand ‘within 10 miles of any military installation’ seems to have no actual thinking behind it, just ‘this sounds security-like.’
the Dems also widely in favor of piling on restrictions to Chinese purchases of land.
Then they are wrong. That is how being principled works. It’s telling you think disagreeing with Dems would be a problem for me.
On the other hand, we’re allowing them to buy an asset which is *really* easy for us to seize if we ever start needing to seize Chinese assets like we did Russian ones.
Probably. It also has draconian restrictions on speech, religious observance, etc. What on earth does that have to do with the question of what American law requires or forbids?
I smelled the same illogic.
Are we just going to stand by as China screws more people than we do? Does anybody wonder why the U.S. is losing its leadership position with inaction like that?
Not permitting American companies to be at a disadvantage to Chinese companies constantly propped up by the PRC, and placing some safeguards against a coordinated takeover of our infrastructure is ‘screwing people’. Got it. Why don’t you put a few dollars in a tin cup and mail it to the CEO of Huawei or one of the shadowy Chinese land grabbing companies if you feel so sorry for them? Thats not yet barred by the racist Repubs and Dems.
Corporations are not people. Random property in Florida is not our national infrastructure.
We have CFIUS.
So you want to rubberstamp any foreign purchase as long as they pinky swear its for personal use only? Also thank you for your work Commissar Sarky reviewing every foreign purchase of land in Florida and discovering that the land purchasers are just purchasing ‘random’ plots. Its not like rich people, even as individuals buy land with strategic value. No they just throw darts at the board.
That’s not what I said, of course.
Sarcastr0 doesn’t turn out to be named commissar as part of the CFIUS process.
You’re confusing one policy, which addressed actual security concerns (and is tailored to specifically look for that), with performative anti-Chinese populism that solves nothing.
I don’t want to rubberstamp it; I don’t want to stamp it at all. Why is the government deciding who can buy and sell land? What problem do you think you’re solving?
–
Iowa has a law denying corporations from owning farm land. There is are exceptions for in state churches, and colleges. They can own, not purchase.
Personally I’m not sure that is constitutional either, but I am sure that it gets a different level of scrutiny (under the classification reasons) because being a corporation isn’t a suspect classification like national origin, race, and ethnicity. I believe that implicates a constitutional right in purchasing and owning property so should get scrutiny uner the implicating rights cases, but the two are distinct so this law and the Iowa law aren’t really comparable in a constitutional sense.
This is a real world consequence of the Court inventing ‘substantive due process’, instead of simply overturning the Slaugherhouse decision.
The 14th amendment guarantees every warm body in the US “due process”, but only citizens are guaranteed privileges and immunities. So, if incorporation had been accomplished constitutionally, through the P&I clause?
Non-citizens wouldn’t have any constitutional right to own property in the US.
1. This is EPC not SDP. It would be the same even if there was no right to own property
2. It’s not clear that the citizen language in P&I modifies who has rights vs what are the rights being talked about. And the notion that a non-citizen, even if a lawful permanent resident, doesn’t have the right to free speech, for example, strikes me as pretty abusrd to think the P&I only applies to citizens. But again, even if true that is irrelevant to this case
Congress shall make no law seems like it’s about more then US Citizens.
Though your pinched understanding of rights is noted. What an awful pretend libertarian you continue to be.
Also, Brett and the Right (and Justice Thomas) are just complete idiots about this, because even if we go through the P&I clause, the equal protection clause applies to everyone in the country, and will come in and then grant whatever rights are granted to citizens, to non-citizens as well.
The only possible difference would be at the federal level, and at the federal level there already are doctrines under the Naturalization Clause that allow the federal governments to enact special rules for non-citizens.
Line of sight of a military installation scares me — there is so much surveillance, espionage, and sabotage that one could do.
That concern is addressed by the federal statute cited, 50 U.S.C. § 4565. The Committee on Foreign Investment in the United States has been granted the power to block real estate purchases by foreign nationals near military facilities. That means, the motion panel thinks, the power belongs exclusively to the federal government and not to Florida.
Security theater. I am quite certain that any foreign intelligence service that poses a significant intelligence threat based on mere proximity to a military facility is capable of finding an American citizen to serve as the record owner of the relevant property.
And I’m quite certain that a *diligent* Federal government could prosecute the American citizen for doing that.
Under what law?
The Dred2 Scott decision, no?
If US citizens can’t own land in China then Chinese citizens and their surrogates should be prohibited from owning land in the USA.
What do you call that principle? Malicious symmetry?
Why?
The concurrence notes that a binding Supreme court case resolves the Equal Protection issue squarely in the state’s favor, but concludes the Supreme Court would overturn its precedent.
First, this in not the role of a lower court. A lower court must apply binding precedent unless and until the Supreme Court overturns it.
Second, this is not the role of a preliminary injunction. The time to argue that existing law should be overturned is a merits disposition. Preliminary injunctions must be supported by law as it stands.
Finally, the concurrence is simply wrong. Blindly ignoring extraterritorial status and treating precedent concerning foreigners within this country as applicable to extraterritorial aliens is as inappropriate as blindly ignoring birth status and treating precedent concerning the rights of persons born as applicable to the unborn.