Lawfare Daily: Chinese Property Ownership and National Security

[Audio Excerpt]

Matthew Erie

There's a wide array of China-related legislation at the state level that address a vast spectrum of issues from TikTok, semiconductors, to Taiwan, to human rights, forced labor in Xinjiang, procurement, education, etc.

Hyemin Han

It's the Lawfare Podcast. I'm Hyemin Han, Associate Editor at Lawfare, with Matthew Erie, Associate Professor at the University of Oxford.

Matthew Erie

The main fear is that somehow Chinese are buying a property close to critical infrastructure and military installations in the U.S., and that's going to allow them to attack these infrastructures or installations or access data, including personal and private data of U.S. citizens.

[Main Podcast]

Hyemin Han

Today we're talking about a Florida law that prevents Chinese citizens from owning property in the state, and how that fits into the growing economic battles between the U.S. and China.

So Matthew, Congress’s TikTok divest or ban bill is all over the news right now, and the Biden administration just issued steep tariffs on Chinese electric vehicles, solar cells, steel, advanced batteries, and more last week. But there's another front that's been developing in the ongoing delinking efforts with China. And it's happening in Florida. It's about property rights and whether Chinese nationals are allowed to own property in the state.

You wrote about this for Lawfare back in March, and you said that Florida is taking the lead nationally in linking Chinese land ownership to national security threats. Can you get us up to speed here? What's the law that Florida passed in 2023, and how does it work?

Matthew Erie

Sure. Thanks so much for having me, Hyemin. I appreciate the opportunity.

So the Florida law in question is known as SB 264, passed last year, went into effect last year. This is a law that essentially prohibits the ownership of property by Chinese living in the state of Florida. And the law is quite interesting because it is part of this general trend among state legislatures to do exactly this, which is prohibit property ownership by Chinese living in that particular state.

But the Florida law is distinct in a number of ways, and it may be helpful just to highlight those particular points. So the Florida law is unusually long. It's about 30 pages in length, as opposed to many of the other state laws that are two to three pages in length. And I think the reason for that is the Florida legislature was trying to cover a very wide ground prohibiting contracting with entities of, quote, “foreign countries of concern,” end quote, prohibiting, quote, “foreign principals,” end quote, from purchasing agricultural land or other real estate and requiring, quote, “foreign principals,” end quote, who own such land to register in that state. And it also imposes penalties on those who violate the various provisions.

But more importantly, the law creates this two-tier system, which is very unusual amongst the state bills and laws that I've been studying as part of this research project. So the first tier, if you will, applies to foreign principals from foreign countries of concern. So that would be the PRC, Russia, Iran, North Korea, Cuba, Venezuela, Syria. And it prohibits them essentially from owning property within, say, 10 miles of any military installation in that state. However, there's another tier, a second tier to the law, and that applies distinctly to Chinese, so Chinese individuals and Chinese entities. Provision 692.204 specifies that, quote, “any person who is domiciled in the PRC,” end quote, is effectively governed by this law. And that language in terms of domicile is a point of contention. And I'll talk about the litigation in a moment.

But the tier that applies to the Chinese is much broader in scope than the scope that applies to the foreign principals from the other foreign countries of concern. So it's not just property within 10 miles of military installation that is affected, but it effectively prohibits Chinese nationals from owning any property in the state. And the specific language is that they cannot, quote, “directly or indirectly own, have a controlling interest in, or acquire by purchase, grant, devise or dissent, any interest except a de minimus indirect interest in real property in this state,” end quotes. So that's effectively a kind of statewide ban in terms of Chinese ownership. There's one minor exception that applies to non-tourist visas, visa holders, or asylees, that they can hold property, own property, but it cannot be within five miles of military installation.

And then lastly, what's distinct about this particular two-tiered system is that it creates a higher threshold of penalties for people who violate the second tier, that is, the Chinese entities or person. So for the first tier, the generic category, if someone violates the law, then they get a misdemeanor of second degree versus for the second tier that applies to the Chinese, they get a felony of third degree. So there's a significant difference there in terms of this this tiered system. So it's quite unusual in that respect.

Hyemin Han

And something else that I noticed about the law is that if you are a Chinese national who had previously—so before this had gone into effect, if you had owned property, you need to now register with the Department of Economic Opportunity in the state and tell them that you have already owned this?

Matthew Erie

That's right. So there's a registration requirement, which has been a focus of the subsequent litigation that has been brought forward by a number of individuals who are Chinese nationals living in the state of Florida. And they would argue, they have argued rather, that particular requirement is discriminatory. It is a stigma that's placed upon them because of their nationality that they have to engage in and fulfill this particular requirement. So that’s correct.

Hyemin Han

And do you know if, for instance, someone had held a Chinese passport and then decided to either become naturalized or, in a different way, give it up, would they be allowed to purchase property under the law?

Matthew Erie

That depends. So I think the issue there is whether or not they—so if an individual is still a PRC national, then they are effectively affected by the law. They still fall under the scope of the provisions of the law. If they have been naturalized, and if they're a U.S. citizen, or for example, their children are U.S. citizens, then they would be exempt from the particular provisions as I read them.

Hyemin Han

And do you have a sense of how lawmakers were justifying the particular second tier element of this law? Could you give us a sense of, first of all, what it looked like in terms of party lines, whether this was bipartisan? And also, what specific justification they use to specify the Chinese property limitations?

Matthew Erie

Right. So clearly this law was spearheaded by Governor Ron DeSantis, in particular, in his run up to the presidential election before he bailed out. But he is quoted as saying in one press release that, quote, “Florida is taking action to stand against the United States’ greatest geopolitical threat, the Chinese Communist Party,” end quote. So this is something for him that was important for his political position, his candidacy, and for putting himself forward as somebody that's very tough on China. But Florida, of course, is a red state. The Republican Party controls the offices of the governor, secretary of state, attorney general, and both chambers of the state legislature.

But I think it's important to note that this type of bill is not a distinctly Republican phenomenon. There's a wide array of China-related legislation at the state level that address a vast spectrum of issues from TikTok, semiconductors, to Taiwan, to human rights, forced labor in Xinjiang, procurement, education, etc. And it doesn't just apply to Republican states, it's also Democratic states that are passing these bills into law. A number of scholars have started looking at these bills and laws, and what they found is that really it started in 2020, in 2022, in that range, when you started seeing more of these bills. And I think part of it was, I think it was 2021 when Biden assumed the presidency and many of the red States were positioning themselves as taking leadership on an anti-China stance with the idea that the Biden administration was soft on China.

And so the Republican states have taken the lead. We have Arizona, Florida, Louisiana, Alabama, Indiana. They have passed a number of these laws. But as I said, a number of Democratic states have also been very active, California and Connecticut included. New Jersey, according to one tracker of state legislation, had the highest number of these sort of China-related bills on the books. So I think this is a really important point, that it is a bipartisan phenomenon that we're seeing right now. It's not just one party or the other.

Hyemin Han

I definitely want to get back to your research, which is really extensive on the national development on this front a little bit later. But just to wrap up the Florida element of this, can you tell us about the lawsuit that's ongoing in challenge of SB 264 and where that currently stands?

Matthew Erie

Absolutely. So the case that has emerged as really the first case to challenge this group of China-related state legislation is called Shen v. Simpson. And this case in particular is targeting the property-related bill in Florida that's been passed into law. It's been brought by five plaintiffs, four of whom are Chinese nationals, and one real estate company that services Chinese in the state of Florida. So again, all are either based in or living in Florida. The plaintiffs sought a preliminary injunction against the law in district court for the Northern District of Florida. They lost. They then appealed to the Eleventh Circuit, and they won a partial injunction, although it's pending appeal.

And so this very important case is winding its way through the federal judicial system, and it's attracted a wide number of observers because if the plaintiffs win, then arguably they will effectively discourage other states from passing these types of laws based upon the argument that they are unconstitutional for a number of reasons. We can talk about that. If the state of Florida wins, then it potentially could encourage or incentivize other states in terms of their China-related bills to pass them into law. And we may see a further flush of these laws working their way through the state legislative systems. So I think this is an important case, and I think it's certainly something that deserves our attention.

Hyemin Han

So could you tell us what the main arguments that Shen are raising in challenge of this bill?

Matthew Erie

Sure, so there's a number of different arguments that have been raised and some are more robust at the constitutional level than others, but let me march through these and we can talk about it. So at the constitutional level we have three main types of arguments. The first is equal protection, the second is due process, and the third is federal preemption.

So the equal protection argument, which in some ways is really the heart of the case, I think, derives from the 14th Amendment, right? No state shall deny to any person in its jurisdiction equal protection of laws. There is a famous case from 1886 called Yick Wo v. Hopkins, which applies this to anyone in the state, regardless of their race, color, or national origin. So as long as you're a human being in the state, you will receive this equal protection. That means that any law would receive strict scrutiny, meaning that the state must show a compelling interest and the law must be narrowly tailored to achieve that interest.

Now, the critical question is whether this interpretation and the strict scrutiny applies to legislation restricting non-citizens’ property rights. So that's really the narrow issue here. And there's one case on the books, Oyama v. California, a 1948 case, which effectively would stand for the proposition that this sort of strict scrutiny and protection does not apply to non-citizens. Now, the state of Florida has argued that it does not discriminate based on nationality, but rather, the language that it has used in its various submissions is, the issue are, quote, “ties to totalitarianism and domicile,” end quote.

And again, as I mentioned earlier, that term “domicile” is a very fraught one because the plaintiffs have argued that that basically is a proxy for national origin or nationality, and that it's a workaround in terms of trying to avoid equal protection. The states in particular, the state of Florida, have argued based upon a set of cases, including Terrace v. Thompson, which is approximately 100 years old, that states may bar non-citizens from owning land, and that's something that is based upon their state rights, and it's very entrenched in the case law. Now, an issue there is that some states have begun eroding or chipping away at this set of 100-year-old cases and arguing that, in fact, non-citizens are also deserving of equal protection on this issue of property ownership. So this is really a hot issue right now in this field of property ownership, and the case of Shen v. Simpson could really take this forward to the next step. So that essentially, in a nutshell, is the equal protection argument.

The next is due process. This is a more technical issue, but I think it's one that warrants a mention. So due process effectively protects individuals and their rights to property from unreasonable governmental interference through, for example, expropriation or zoning. And the Florida law falls under this because it prohibits ownership altogether. So again, going back to Yick Wo v. Hopkins, that extends due process to non-citizens, there is potentially a due process claim here. There's other case law, more recent case law, for example, Ralls Corporation v. CFIUS, a 2014 case, a really fascinating case that, in fact, was brought by a Chinese company against CFIUS, which is the Committee for Foreign investment in the United States, arguing that, in fact, there was a lack of due process in terms of how CFIUS was processing national security-related transactions, including in real estate. So CFIUS has jurisdiction over real estate matters. This is also an ongoing issue in in the case law.

The third issue, as I mentioned, is federal preemption. And this essentially is asking which level of the government controls on these issues. So the federal government has a wide discretion over national security issues, immigration, foreign affairs. On those points, we could think about, for example, a well-known case, Arizona v. U.S., a 2012 case, which solidly places the federal government in control of immigration matters. And again, as I mentioned, the Florida law that we've been discussing really uses this key term of “domicile,” which effectively touches on immigration policy. And so that would potentially run afoul of the federal power over immigration.

Related on national security, the federal government has CFIUS, as I mentioned, which is an established statutory scheme, and as I mentioned, has jurisdiction over real estate transactions. CFIUS is considered in the panoply of national security mechanisms to be quite sophisticated or, comparatively speaking, more sophisticated than other options or mechanisms, in that it utilizes a case-by-case analysis versus, say, in this instance, the Florida law, which is a one-size-fits-all approach, right? So it's the scalpel versus the sledgehammer.

And then there's the Fair Housing Act, which is a federal statute passed in 1968, which makes it illegal to discriminate against individuals when they are engaged in housing-related activities, including the purchase of real estate, on the basis of color, race, national origin, sex, etc. And the plaintiffs have argued in Shen v. Simpson that the Florida law appears to violate Section 1604 of the Fair Housing Act as it discriminates on the basis of national origin, as they argue.

So that just is a quick overview of the various arguments that have been put forward by the plaintiffs. And I've mentioned to some degree the response by the state of Florida.

Hyemin Han

Thanks. This is really helpful. And one of the many interested parties here is, of course, the U.S. government, who did submit a statement of interest at one of the preliminary injunction stages. I'm curious to get your thoughts on their approach to entering into this litigation. Their brief, as I recall it, process focused a lot on the equal protection argument that you mentioned and the Fair Housing Act. But they didn't actually talk that much about the preemption question. Do you have a sense of what the government is going to try to do in this case and the extent to which you anticipate that they will try and get involved here or let it play out in Florida, and then potentially get involved at a later date?

Matthew Erie

Yeah, that's a fascinating question. And it's very hard to read the tea leaves right now on that one. You're right that Department of Justice in its brief did touch on a number of these constitutional arguments and I think really reinforced the validity of them with a particular emphasis on equal protection.

I think federal preemption, as I recall, it's been some time since I've read that brief and you may have read it more recently than I did. There’s some mention of that. I think the issue here is that, although it's a sort of complicated area of law, there are certain dormant powers and implied doctrines that are effectively the source of federal preemption. So by that I mean, for example, the implied doctrines of the dormant foreign affairs preemption and also the foreign affairs clause. And these effectively give the federal government sway over these particular areas, even if there is not explicit federal legislation or executive action on point, at least in the case of the dormant foreign affairs preemption doctrine.

However, the case law on some of these implied doctrines is not particularly robust. And in fact, for the dormant foreign affairs preemption doctrine, the case law is not particularly strong. And so there is the issue in terms of whether or not the federal government feels that's a particularly strong leg to stand on. And it may, in fact, be resorting to other constitutional arguments. And I think we see that to some extent play out in the brief. I think more generally in terms of a strategy, it may be trying to allow the courts to address these issues, and it would potentially step in in a more vocal way at a later point in time. If it does reach all the way to the Supreme Court, I think we could see more activity on the side of the executive government at that point in time, but we haven't gotten there yet. Really, it's a wait and see right now.

Hyemin Han

So zooming out just a little bit from the Florida law, you have been studying, what you called in your Lawfare piece, a trend towards property illiberalism across the U.S., and we touched upon this a little bit with other state proposals and laws that are trying to limit property ownership. Can you give us a sense of the state of play across the U.S., and talk about how it's possible, given existing property law, for these states to be pushing these kinds of things forward?

Matthew Erie

For sure. So as I mentioned at the start, I've been conducting research on this topic for the last couple of years, and I've collected approximately 152 state bills and laws that are China-related, particularly on the property point. As I mentioned earlier, there are an array of issues that China-related bills and laws touch upon, everything from tech companies to forced labor in Xinjiang, and there are scholars that are looking at those, and there are hundreds and hundreds of those, but I'm particularly focused on the property dimension. And as I said, these laws are found almost everywhere, right? So I really want to underscore that it's not just a red state phenomenon. This is something that has broad bipartisan appeal.

And I think that is really emblematic of where we are right now in the U.S.-China relationship, that there is a vast amount of anti-China sentiment in the U.S. We see that reflected in these bills and this core pillar of U.S. law, which is property law. And I think, there's a number of reasons for that. As I said at the outset, I think the main fear is that somehow Chinese are buying up property close to critical infrastructure and military installations in the U.S., and that's going to allow them to attack either outright these infrastructures or installations, or allow them to surveil or otherwise access data, including personal and private data of U.S. citizens. We don't really have a robust number of examples of Chinese doing this. In a longer paper I've written in the Wisconsin Law Review, I touch upon, there's three cases mainly from the Midwest that illustrate acquisitions in real estate where there was a perceived threat in terms of either a military-linked company or individual in China acquiring real estate close to a military installation in the U.S. or something along those lines. But the actual evidence of this happening as in terms of a Chinese strategy hasn't really played out. We don't really have that evidence or data to date.

So I think, state legislatures and the federal government are operating on hunches to some extent. And one broad argument I would make is that the federal government, frankly, is more equipped, it's better equipped, to assess any real threat from the Chinese on this point, given that the U.S. federal government has such an elaborate intelligence community that it can mobilize and marshal to really identify whether or not a threat exists, and then to identify the correct countermeasure to that threat. And I think part of the problem here is that we see state governments getting very, very involved and active on this front, and yet they don't really have the requisite intelligence-acquiring mechanisms to really identify if there is a threat in their state, right? So there's a gap there. And I think that's somewhat problematic. And that may be an argument that states should to some extent defer to the federal government on these points.

Okay, so we have the China threat, the China scare, as very applicable throughout the U.S., and it's something that state legislatures are grappling with. Part of what I talk about, both in the Lawfare piece and this longer piece I wrote in Wisconsin Law Review, is where do these laws come from? And this is what I call the epistemic side of the lawmaking. And to date, there are a number of interests that are collaborating or coming together to affect these bills. And one of them is corporate stakeholders and lobbyists in other organizations that are broadly conservative that believe it's in their best interest to exclude Chinese entities and persons from their market or from their jurisdiction, and that seems to have some effect. And coupled with the general China scare, we see other states mirroring this or copying this in their own bills. And so there's this spillover effect that we see throughout the U.S.

And so one of the main questions the research proposes or throws up is, who really should be making these laws and what types of knowledge and expertise should be brought to bear in the making of these laws? So while we have the corporate interests and conservative interests, we may also want to include China expertise in the making of these laws. And I think there's a policy argument there that those who have real experience and expertise on Chinese companies, the relationship to the Chinese Communist Party, the relationship between Chinese individuals and the CCP, and also the relationship between Chinese entities and the Chinese military, I think they also could be productive individuals and stakeholders to tap into to understand how their knowledge could help to make better law as opposed to worse law.

And then the other side of the argument, in addition to the epistemic is the doctrinal aspect. And this is what you were asking in your question about how these current state bills and laws operate within the context of U.S. property law. And there, we see there actually is a history of exclusion in U.S. property law. There are longstanding exclusionary practices against Black Americans, against Native Americans, historically, and also against Asians and Asian Americans, right? So we have the 1882 Chinese Exclusion Act, the 1913 California Alien Land Law that was mainly targeting Japanese, but there's continuities between these particular Asian-focused acts or pieces of legislation.

And while some of these have been effectively repealed or have been addressed by subsequent case law, others are still there on the books. And these are strata, if you will, in U.S. property law that the current bills can effectively build upon and acquire some legitimacy from. And so I mentioned the states’ rights argument in terms of the 10th Amendment that they have jurisdiction over property-related issues within their state and, in citing some of those hundred-year-old cases, the Terrace cases that as they're called, some of these, I think dovetail with some of these exclusionary practices. And the effect is that we have, effectively, legislation that is discriminatory in nature.

Hyemin Han

Thanks for that. You just gave us a great overview of how property law illiberalism has been unfolding. And you talked about the epistemic and doctrinal elements of that process. How recent is this trend, in your view? Is it really just in the past couple of years? Do you have a sense of pinpointing whether it started in the Trump administration, in the Biden administration? Was it even prior to that? You did talk about this old, longstanding tradition of exclusion when it comes to property ownership. But especially the China element in your research, have you come across a pivotal point or transition point at all?

Matthew Erie

Yeah, that's a very interesting question. So I think there's two sides of that. On the one hand, I do think that there are continuities with going back to the 19^th century discriminatory laws against Asians in the U.S., and that, as we know, dovetailed with immigration policy against Chinese and Japanese in the U.S. And of course, the famous cases following World War II and during World War II as well that were highly discriminatory, Korematsu included. So there are all those precedents in U.S. property law. And what's happening now, I think, is the latest instantiation of those exclusionary and discriminatory practices. So it both draws on those past precedents, but also, it's something new.

And I think this is the other aspect of the picture in that right now, China is the enemy, right? China is the enemy across a broad spectrum of issues. Certainly, through the focal point of the U.S.-China trade war, starting during the Trump administration in 2017 and carrying forward, and now we have the tech war component of that. But China is the enemy across this broad array of issues well beyond tech and industry, all the way to education, knowledge production, academic collaboration, everything in between. And so I think having this layer of Sinophobia laid upon the preexisting layer of sort of these discriminatory exclusionary property practices, it's this toxic mix that we see now.

And so it's hard to specify, was there a turning point? Maybe it was the U.S.-China trade war that really was the starting point for this most recent instantiation of this longer practice of exclusionary legislation in U.S. property law. But I think it is important to draw attention to the historical precedents, because what's happening now is not necessarily totally new.

Hyemin Han

And another thing that you said earlier was that there's a question here about who who's in the best position to be able to decide the necessity of these kinds of laws. And I'm curious to get your sense of whether you think that the federalism point here is a good thing or a bad thing, more or less, because we talked a little bit about CFIUS and its role in regulating Chinese money, basically, in the U.S. and its interests in the U.S. On the other hand, it's possible that CFIUS doesn't have the ability just to understand granularly every single element of what's happening in a state and whether or not certain entities should or should not be barred. But then you also raise the issue of do state governors or state legislators have the requisite knowledge. Do you know about what the procedures are here for Florida, for instance? Are there any real procedures in place? And if not, are there any proposals to make that more robust as these kinds of laws come into play? Or are they just really putting these laws up in a blind way?

Matthew Erie

Yeah, so I think fundamentally what's happening here is that we see this new tension—or it, again, has a longstanding background to it, but it's emerged now in a very visible way because it's not just state governments versus federal governments, but also the political parties, Republican versus Democratic Party, that are at loggerheads. And I think it's that political polarization now that has seeped down into the state-federal relationship and again, another component of this toxic formulation.

But we see clearly a great degree of discoordination between state governments and the federal government on China policy. There is this really interesting literature on subnational diplomacy. And state governments have been very active and engaging with China, both the Chinese central or national government, but also the provincial governments. Oftentimes it is a U.S. state collaborating with a Chinese province, the provincial government. So that’s the subnational dimension. And that's something that, I think, has been there for quite some time. And I think that's something that can be quite good, in fact yeah.

But the issue, again, that we've been trying to address in our conversation today is where state governments pass, exceed, a certain line in terms of their powers, and then what are the policy implications of that? So again, just to restate, I think it's important always to go back to the relevant legal framework. So we have a framework of constitutional and federal sources of law that give us an understanding in terms of how state governments and the federal government should be working together on these issues. And the Constitution limits foreign affairs powers of the state by prohibiting them from entering into, for example, treaties. I mentioned the implied doctrines, the dormant foreign affairs preemption doctrine, whereby states are preempted, even in the absence of federal legislation or executive action. And the foreign commerce clause, that states, basically, that discriminatory state legislation is invalid, but that non-discriminatory state statutes with no more than an incidental effect on commerce may be valid unless the burden imposed outweighs the benefits. And all of that is counterbalanced with the 10^th Amendment that states that power is not delegated to the U.S. by the Constitution, nor prohibited to the states, or reserved by the states or to the people.

And so within that framework, we have these really pressing foreign policy, foreign affairs, issues now as states are becoming more and more active. And clearly, these issues are now finding their way into the court system, as we see in Shen v. Simpson. And the courts are now trying to, I think, fine-tune the balance of power between the states and the federal government.

At a general level, I would say, where we are right now in this particular moment with U.S.-China, given the sensitivities, we have to think, again, about the incredible standing of these countries in the world, not just economic, but also political, military. We have to think about mainland China's relationship to Taiwan. Taiwan, of course, U.S. allies. So there's a lot of really, extremely red-hot important issues that are at play with these broader dynamics as states are becoming more and more active. So one concern would be if a state government of its own will recognized Taiwan as an independent state, which is not the status quo and would violate a number of agreements. But that sort of action, I think, would be the one that people would really fear because that would obviously bring about a number of repercussions that would be potentially tragic.

And so we have to think this through very carefully. I think, what does the federal government have in terms of its toolkit to try to reel this in? I think congresspeople are already talking about proposing legislation that would effectively preempt state legislatures from passing property-related legislation that would prohibit, in this case, Chinese from owning real estate in their state. And that legislation then would effectively trigger these federal preemption powers that the federal government has. So there are discussions that are happening. There are efforts now that are just starting to be made. And we'll see how those play out in conjunction with the cases that are winding the way through the system, for example, Shen v. Simpson, as we see what happens with the U.S. presidential election later on this year. And I think that will also have a potentially significant impact on where this goes going forward, in terms of not just the position of the federal government, but importantly, the states in terms of their engagement with China.

So there are a number of variables that are at play, and I only hope that people can take a deeper dive into these issues and consider all the ramifications because these are not just local issues that we're talking about. These are truly global concerns.

Hyemin Han

We'll leave it there. Thank you very much, Matthew Erie, for joining us.

Matthew Erie

Thanks so much for having me. It's been a pleasure.

Hyemin Han

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