National Security or National Origin? The Implications of Florida’s Alien Land Law Under the Federal Fair Housing Act
By
By
Emily Behzadi Cárdenas[1]*
Florida Governor Ron DeSantis signed House Bill 1355 and its companion Senate Bill 264 into law on May 8, 2023. This so-called New Alien Land Law restricts the land and property ownership of seven “countries of concern,” including China, Russia, Iran, North Korea, Syria, Venezuela, and Cuba. Similar legislation has been introduced in California, New York, Texas, Louisiana, South Carolina, and Alabama, among other states. Despite the Act’s guise to safeguard our national security interests, the Act’s implementation and enforcement will not only be inherently discriminatory, but will also reverse decades of progress made in fair housing within the United States. Through the codification of the Act, DeSantis propagated the erroneous idea that nationality is indicative of a propensity to be a national security threat. This dangerous narrative cultivates an environment of exclusion and marginalization in Florida and throughout the United States.
The primary objective of this Essay is to expose the illegality of the Florida Alien Land Law, and like legislation, under the Federal Fair Housing Act. A critical examination of this legislation is necessary in order to refute the harmful rhetoric perpetuated by its proponents and to discredit the Act’s purported rationale. Through an analysis of the Federal Fair Housing Act, and its protections against national origin housing discrimination, this Essay will examine the discriminatory impact of Florida’s New Alien Land Law. An investigation of the Act’s underlying motives will further evidence the ways in which its provisions will facilitate discrimination, both explicitly and implicitly. Consequently, this Essay illustrates that legislation, such as the Florida New Alien Land Law, is antithetical to the principles espoused by the Fair Housing Act and serves only to cultivate sentiments rooted in fear and xenophobia.
The Federal Fair Housing Act of 1968 (FFHA) is the landmark federal civil rights law that prohibited discrimination in housing on the basis of race, color, religion, and national origin.[2] Fifty-five years after its enactment however, many of the goals of this significant piece of legislation, have yet to be fully realized. Despite notable advancements in civil rights since the 1960s, housing accessibility for communities of color remains an unresolved and persistent issue. Individuals of color are frequently subjected to bias and discriminatory practices throughout the real estate transaction process.[3] As the United States commemorates the fifty-fifth anniversary of the FFHA, it must also confront a resurgence of xenophobic, anti-immigrant policies reminiscent of the U.S.’s problematic past. In particular, the propagation of anti-Asian sentiment, driven by the political scapegoating of China and Chinese citizens by conservative figures such as Donald Trump, has resulted in increased discriminatory policies, which further exacerbate the housing availability problem.[4]
One of the most recent trends in statehouses across the United States is the introduction of legislation restricting the ability of citizens of certain foreign countries who are visiting or living in the state to purchase real property in the respective state. The purported objective of this legislation is to protect American territory, national security, and vital infrastructure from specific foreign nations engaging in hostile activities in the U.S. legislation of this nature has been enacted or proposed in several states, including Alabama, Arkansas, California, Idaho, Indiana, Louisiana, Mississippi, Montana, New York, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Virginia, and most notably, Florida.[5] On May 8, 2023, Florida enacted Senate Bill 264, referred to as the “Florida New Alien Land Law.”[6] This legislation prohibits Chinese citizens from purchasing real estate in the state unless certain restrictions apply.[7] The law also bars citizens from Cuba, Iran, Venezuela, Russia, Syria, and North Korea from purchasing property within ten miles of any military installation or “critical infrastructure facility.”[8]
The American Civil Liberties Union (ACLU) initiated legal proceedings on behalf of four Chinese citizens and a Florida corporation subject to the law’s restrictions, alleging that the state law, which became effective on July 1, 2023, contravenes the FFHA. Characterizing the Florida New Alien Land Law as “draconian restrictions on people from China,” the lawsuit draws a comparison between Florida’s legislation and the historical prevalence of “Anti-Alien” laws in the late nineteenth and early twentieth centuries.[9] On June 27, 2023, the Department of Justice filed a “Statement of Interest” in support of the Plaintiff’s Motion for Preliminary Injunction, specifically arguing that the recent statute violates the Fair Housing Act.[10]
The Chinese Exclusion Act of 1882, legislation which banned all immigrants from China for ten years, created this legal precedent for nationality-based discrimination, effectively paving the way for subsequent legislative initiatives to deny immigrants property rights.[11] The Alien Land Laws, initially enacted in California in 1913, prevented “aliens ineligible” to be citizens—nonwhite, particularly, Asian immigrants—from owning real property.[12] As the number of Chinese and Japanese immigrants increased in the West, western states passed ownership restriction laws that were especially targeted at Asian immigrants.[13] While the California Supreme Court eventually invalidated California’s Alien Land Law as unconstitutional, its initial creation reinforced the enduring legacy of anti-immigrant sentiment and discrimination in American housing policies.[14] Indeed, only fourteen states currently have no alien land restriction of any kind.[15]
The right to possess is one of the most fundamental property rights on which our constitution and laws are based.[16] Contemporary instances of housing discrimination against national origin minorities and immigrants suggest that these groups require enhanced safeguards, not additional impediments. This Essay examines the legality of the Florida New Alien Land Law under the provisions set forth in the Fair Housing Act of 1968.[17] Part II of this Essay analyzes the historical background of “Alien Land Laws” and the subsequent re-emergence of comparable legislation in Florida and other states. This history will provide necessary context to the invalidity of Florida’s actions. Part III of this Essay provides a brief overview of the Federal Fair Housing Act, focusing on its protections against discrimination based on national origin. This overview is essential in order to establish that the New Florida Alien Land Act directly contravenes the protections provided by the FFHA. Part IV of this Essay proposes that Florida’s New Alien Land law is intrinsically discriminatory and should be deemed invalid as it violates the Federal Fair Housing Act.
In enacting the New Florida Alien Land Law, Governor Ron DeSantis declared that “Florida has once again taken the lead in protecting American interests from foreign threats and has provided a blueprint for other states to do the same.”[18] DeSantis’ rhetoric indiscriminately conflates nationality with security risks, while simultaneously legitimizing xenophobia and instilling fear towards specific nationalities. The New Florida Alien Land Law sets a dangerous precedent for other states to emulate. By exposing the discriminatory foundation of the Florida New Alien Land Law, this Essay contends that alien land laws should be abolished as a vestige of America’s problematic past.
During the early twentieth century, various states implemented a series of laws referred to as “Alien Land Laws” with the aim of restricting property ownership rights of noncitizens.[19] Primarily targeting Asian immigrants, these laws were reflective of contemporary racial and xenophobic prejudices.[20] These biases were entrenched within a broader context of discriminatory immigration laws that sought racial and ethnic exclusion.[21] Eventually, courts and legislatures nullified or repealed these statutes. However, their influence remains pertinent today, as many states still have a variation of these discriminatory statutes. A resurrection of similar legislation has emerged in states across the U.S. under a similar guise of protecting national security interests. Similar to the Alien Land Laws of the twentieth century, these newly revived policies seek to restrict land and property ownership of citizens from certain countries of concern. Not so coincidentally, the citizens of many of these countries of concerns are nonwhite, communities of color. As such, an examination of the historical progression of these laws sheds light on the historical injustices which continue to inform current state policies.
At the country’s inception, property ownership was synonymous with citizenship. Under the common law, those classified as noncitizens were unable to own, devise, or inherit property.[22] From 1790 until the American Civil War, the naturalization laws of the United States restricted naturalization to only “free white persons.”[23] Consequently, from the early nineteenth through the twentieth centuries, “alien property disabilities” persisted, disallowing property ownership because of, as one historian deemed, an “enduring fear of aliens.”[24] However, by the mid-nineteenth century, eleven states liberalized their position on noncitizen ownership of property by adding provisions to their state constitutions guaranteeing property rights for citizens and noncitizens.[25] Scholars credit this progression to the Fourteenth Amendment, ratified in 1868, which curtailed the ability of states to discriminate against noncitizens.[26]
Nonetheless, sweeping changes in the common law tradition were not universally embraced. The escalation of anti-Asian sentiment in western states gave rise to new iterations of restrictions on noncitizen ownership. During the mid-nineteenth century, as a significant influx of Chinese immigrants arrived on the west coast to work, their presence “came to arouse hostility in the white population and that this hostility was eventually translated into discriminatory legislation.”[27] In 1879, California amended its constitution to severely restrict the rights of foreign-owned property.[28] In particular, Article 1 of the new constitution restricted property rights to only those “foreigners of the white race or of African descent, eligible to become citizens of the United States under the naturalization laws thereof . . . shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property, as native-born citizens.”[29]
In response to the intensifying resentment against Chinese immigrants, particularly in the West, Congress passed the Chinese Exclusion Act of 1882.[30] The implementation of this restrictive immigration policy instilled anti-Chinese animus, which subsequently extended to other Asian immigrant groups. Towards the beginning of the twentieth century, Japanese immigrants were similarly seen as “threats to the American body politic from both within and without.”[31] By 1911, a movement of anti-Japanese politicians and agriculturalists lobbied for restrictions on Japanese land ownership in California.[32] On May 3, 1913, California became the first state to enact an alien land law.[33] This law barred “aliens ineligible to citizenship” from owning agricultural property or leasing such property longer than three years.[34] While the term “ineligible to citizenship” is seemingly neutral, its overall purpose was to “discourage the coming of Japanese into [the] state.”[35] The Asian immigrant population faced discrimination due to legal rulings that determined Japanese, Chinese, and other Asians as ineligible for citizenship on the basis of not being classified as “white.”[36]
By the end of World War I, Japanese land ownership increased because many Japanese people placed land in trusts for American-born children.[37] In response, in 1920, California tightened the restrictions on land ownership. This involved the prohibition of guardianships and trusteeships by ineligible individuals, as well as the restriction of agricultural land leases.[38] Additionally, corporations with a majority of shareholders who were classified as “aliens ineligible to citizenship” were prohibited from owning certain types of contracts as “interests in land.”[39] In the event that a transaction was illegal under the Act, the property would immediately escheat to the state.[40]
California served as a model for many other states throughout the United States. By 1925, seven more states, including Arizona, Louisiana, New Mexico, Idaho, Montana, Oregon, and Kansas, had enacted discriminatory land laws that imposed similar limitations on Asian ownership rights.[41] By 1943, Arkansas, Utah, and Wyoming followed suit.[42] As the late Professor Keith Aoki eloquently articulated, the “objective of these laws was to prevent racialized ‘others,’ (who were also foreigners) . . . from asserting the ‘right to own’ a fundamental stick in the proverbial ‘bundle of sticks’ U.S. property regime . . .”[43] Unsurprisingly, the discriminatory treatment of noncitizens, particularly Japanese and Chinese noncitizens, implicated the Fourteenth Amendment.[44] Despite precedent establishing the Fourteenth Amendment’s extension to noncitizens, the U.S. Supreme Court upheld various challenges to alien land laws.[45] This precedent largely ignored the racial implications of the law in favor of principles of federalism.[46]
The legal efficacy of these laws did not begin to diminish until 1948 in the case of Oyama v. California.[47] In Oyama, the U.S. Supreme Court confronted the constitutionality of California’s 1913 Alien Land Law.[48] Fred Oyama, a American-born citizen of Japanese descent, was a minor when his father, Kajiro Oyama, an immigrant “ineligible for citizenship,” purchased land and placed title in Fred’s name.[49] After Kajiro’s death, California brought an action to escheat the land, contending that the land had been acquired in violation of the 1913 Alien Land Law.[50] Fred argued that the Alien Land Law deprived him of his right as an American citizen to equal protection of the law.[51] The case went up to the U.S. Supreme Court, and the Court found that, as applied, the statute violated Fred’s Fourteenth Amendment rights because it discriminated against him “solely for his parent’s country of origin” without any “compelling justification.”[52] Chief Justice Vinson wrote that the “cumulative effect . . . was clearly to discriminate against Fred Oyama” because “he was saddled with an onerous burden of proof which need not be borne by California children generally.”[53]
Although the Alien Land Law was not expressly deemed unconstitutional, the decision rendered by the Court undermined the legitimacy of these discriminatory laws by acknowledging that the statute contravened equal protection rights of American citizens. [54] Consequently, this decision dealt a significant blow to the legitimacy of Alien Land Laws, paving the way for their eventual diminishment. According to Professor Rose Cuison-Villazor, Oyama “more broadly contributed to nullifying discriminatory property laws that similarly precluded other people of color, particularly African Americans, from owning property.”[55] The truth of this assertion is even more evident in the Supreme Court’s decision of Shelley v. Kraemer, which was decided only four months later. Relying on Oyama, Shelley invalidated racially restrictive covenants (whereby the alienability of land would be burdened by contractual bans on sale to certain groups of buyers) as violative of equal protection.[56]
While Oyama served as a catalyst to eliminate alien land laws motivated by racial animus, its scope and applicability were inherently limited. Laws prohibiting the ability of noncitizens to acquire property still exist in many states.[57] While these laws are not, on their face, racially motivated, they still limit the ways in which noncitizens can acquire property rights. Potentially motivated by xenophobic sentiments, many of these statutes were passed in the 1970s, possibly due to nationalistic fears of foreign investment harming the farming community.[58] Although these restrictions vary, they generally limit the amount of land capable of acquisition.[59] They also specify which noncitizens may purchase the property, and the time period for when noncitizens are able to purchase property.[60]
Under the guise of safeguarding national security interests, state legislatures across the United States have reintroduced amendments to their existing alien land laws.[61] These revived laws, such as the Alien Land Laws that were enforced during the early nineteenth and twentieth centuries, are designed to restrict the acquisition of property by individuals from specific nations, rather than apply to the entire cohort of noncitizens.[62] The contemporary resurgence of alien land laws bears resemblance to historical antecedents of the nineteenth and early twentieth centuries, as they share a common origin in the xenophobia and nationalistic fear towards certain immigrant populations.
Florida, through its New Alien Land Law, has emerged as a potential model for other state legislatures in evaluating the effectiveness of revived alien land laws. On May 8, 2023, Florida Governor Ron DeSantis signed Senate Bill 264 into law, prohibiting “foreign principals” in certain countries of concern from purchasing agricultural land or real property within ten miles of a military installation[63] or critical infrastructure.[64] The act defines the term “foreign country of concern” specifically as: “the People’s Republic of China, The Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicholas Maduro, or the Syrian Arab Republic, including any agency of or any other entity of significant control of such country of concern.”[65] One of the more problematic definitions under the act is “foreign principal,” which is “[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.”[66]
For each “country of concern” the law provides two primary categories of prohibition. The first category prohibits certain people from “foreign countries of concern” from owning or acquiring any agricultural land and real property within ten miles of a military installation or critical infrastructure facility.[67] The second prohibitive category is even more restrictive. Specifically, any person from China cannot own or acquire any real property in the state of Florida.[68] According to Governor DeSantis, the bill was used to “counteract the malign influence of the Chinese Communist Party in the state of Florida.”[69] There is only one exception to these prohibitions, and it is exceedingly narrow: people with non-tourist visas or who have been granted asylum “may purchase one residential property that is up to 2 acres in size” and “is not within 5 miles of a military base.”[70]
Any “foreign principals” owning or acquiring property in violation of the Act’s prohibitions are subject to civil forfeiture of their property.[71] Additionally, any person in violation of the Act may be subject to criminal penalties in the form of a second-degree misdemeanor.[72] In addition to the civil and criminal penalties for “foreign principals,” any person who knowingly sells prohibited property in violation of the Act is also subject to criminal liability as a second-degree misdemeanor.[73] The law also now imposes new requirements on all buyers within the state to affirm by affidavit that the buyer is not a “foreign principal” from one of the prohibited countries.[74]
Across the country, states have introduced similar legislation (although not to the same degree). In Alabama, the House of Representatives approved HB-379, also known as the “Alabama Property Protection Act,” prohibiting Chinese citizens, the Chinese government, or Chinese entities from acquiring real property in the state.[75] The Senate in Louisiana, similarly, approved SB-91, which prohibits Chinese citizens from owning or even leasing property located within fifty miles of any federal or state military land.[76] The leasing proscription is notably impractical. For example, if this proposed bill is signed into law, a Chinese citizen studying or working at Louisiana State University in Baton Rouge would not be able to rent an apartment because an armed forces reserve center is located nearby.[77]
National security concerns are the ostensible driving force behind these bills. However, similar to their forbearers, these policies have a discernible discriminatory impact, as they overtly preclude individuals of specific national origins from possessing certain property. Upon juxtaposing the old and new Alien Land Laws, disconcerting evidence reveals that history is once again repeating itself. The current versions of the laws reflect the predecessors’ nationalistic spirit, highlighting a pervasive intersection of how xenophobia can influence entitlements to property rights. Thus, a critical review of these laws is imperative to ensure that the injustices of the past are not repeated.
The Federal Fair Housing Act of 1968 (FFHA) is a landmark piece of legislation which sought to “remove the walls of discrimination which enclose minority groups.”[78] This act is a critical tool for safeguarding individuals and communities against discriminatory housing practices. However, enforcing the Fair Housing Act is “‘not merely a proxy for the victims of discrimination,’ but safeguards public interests independent of” victims.[79] The significance of the FFHA is underscored by the reemergence of new Alien Land Laws, which threaten discrimination based on national origin. The FFHA is an essential component of the legal framework within which the implications of these new Alien Land Laws must be evaluated.
The FFHA prohibits housing discrimination based on race, color, national origin, religion, sex, familial status, or disability in the sale, rental, or financing of housing.[80] The FFHA was passed during the era of the civil rights movement and was the first federal response to persistent housing discrimination.[81] The objective of the FFHA, as stated in its first section, is “to provide, within constitutional limitations, for fair housing throughout the United States.”[82] In concert with the civil rights movement, the FFHA sought to promote “open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.”[83] Senator Mondale, one of the key drafters of the bill, stated that “the basic purpose of this legislation is to permit people who have the ability to do so to buy any house offered to the public if they can afford to buy it.”[84]
In order to achieve the objectives of the Act, the drafters of the FFHA included key provisions that enable individuals to redress instances of unlawful discrimination in both the acquisition of housing and the maintenance of fair terms in housing. The most significant of its prohibitive sections is section 3604(a), which makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.”[85] Section 3604(b) also prohibits imposing different “terms, conditions, or privileges” on people seeking housing based on a protected characteristic.[86] Section 3617 bolsters section 3604 by prohibiting a landlord from “coerc[ing], intimidate[ing], threaten[ing], or interfer[ing] with any person in the exercise or enjoyment of” their rights under section 3604.[87] Courts have categorically interpreted the FFHA broadly.[88]
In order to prove liability under the FFHA, a plaintiff first must establish a prima facie case of discrimination.[89] Generally, the elements that a plaintiff must establish are:
(1) The plaintiffs are members of a racial minority or other protected class;
(2) The plaintiffs requested information as to availability of a particular unit type;
(3) The defendants failed or refused to provide truthful information as to availability of that unit type; and
(4) White applicants were provided with truthful information regarding the particular unit type.[90]
It is then the defendant’s burden to provide a legitimate, nondiscriminatory justification for its actions once the plaintiff has established a prima facie case of discrimination.[91]
National origin is a protected class under the FFHA.[92] There is little legislative history that gives a clear definition of “national origin.” Congressman Roosevelt, one of the drafters of Title VII, is cited for one of the only existing definitions of national origin as “the country from which you or your forebears came.” [93] The statute, however, makes no mention of alienage or legal status.[94] Consequently, both public and private actors have broad latitude to discriminate on these grounds.[95] For example, if a landlord or homeowner wished to rent or sell to “citizens only,” they may do so to the extent they are not discriminating against a specific ethnic minority.[96] However, if a public or private actor discriminates on the basis of a person’s national origin, a finding of discrimination is warranted under the FFHA. Thus, a person may have a cause of action under the FFHA if she is refused housing on the basis of her Cuban national origin, but not if she is discriminated against for not being a U.S. citizen.
However, a noncitizen could bring a discrimination action under a theory of disparate impact, which would require the plaintiff to demonstrate that their status as a noncitizen was a mere pretext for national origin discrimination.[97] Unlike direct theory of liability, disparate impact does not require providing discriminatory intent.[98] Instead, policies that create a disproportionate and justifiable impact on a protected class may impose liability.[99] The Supreme Court has made it clear that the FFHA prohibits practices that have a “disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate rationale.”[100] Thus, an issuance of an FFHA violation may occur when a local regulation prohibits the sale of property to individuals lacking documentation and landlords refuse to rent to U.S. citizens and legal permanent residents based solely on their race, color, or national origin.[101] This seemingly paradoxical gap in protection runs counter to the objectives of the FFHA in its endeavor to prevent discriminatory practices in housing availability.
The FFHA is intended to safeguard against discrimination within the context of availability of housing.[102] The examination of Florida’s Alien Land Law through the lens of the FFHA demands a critical investigation of the former’s discriminatory foundation. This Section analyzes the purported justification of the law, emphasizing the plausible prejudice that underlies its enactment. In scrutinizing the motivations behind the law’s enactment, it is apparent that the act seeks to impose differential treatment of individuals hailing from these seven nations identified as “countries of concern.” Furthermore, the connection between the purported purposes of the bill and the severity of the imposed restrictions casts doubt on its claimed justifications.
Florida’s New Alien Land Law violates the FFHA because it intentionally establishes a housing practice that unlawfully discriminates against persons based on their national origin. While discriminatory intent is rarely demonstrated by direct evidence, circumstantial evidence may suffice as proof.[103] A plaintiff can show a prima facie case of discrimination by “showing that animus against the protected group ‘was a significant factor in the position taken’ by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.”[104] Factors that can be considered are the historical background behind the decision to enact the law, as well as contemporary statements made by officials in furtherance of the legislation.[105] Even if a majority of constituents support such legislation, a “discriminatory act [is] no less illegal simply because it enjoys broad public support.”[106]
Without consideration of extrinsic evidence, the new Florida Alien Land law is discriminatory on its face. Although “rarely is there direct, smoking gun, evidence of intentional discrimination,” the text of the statute clearly showcases discriminatory intent.[107] The law prohibits a citizen from one of the seven specifically delineated countries of concern from owning real property within ten miles of any military installation or critical infrastructure facility.[108] The primary contention put forth by Florida is that the Alien Land Law does not exhibit discrimination on the basis of national origin, but rather discriminates on the grounds of citizenship.[109] It is true that the law does not plainly prohibit ownership of property on the basis of U.S. citizenship, which has been held lawful under the FFHA.[110] However, the Florida Alien Land Act explicitly discriminates against individuals on the basis that they were born abroad or came from a specific country.[111] Additionally, while sections 692.202 and 692.203 prohibit persons from multiple countries from owning and acquiring lands, section 692.204 goes further to impose harsher restrictions on citizens from China.[112] The new law prohibits Chinese citizens from purchasing or acquiring any real property in Florida, regardless of where it is located.[113] Additionally, the act imposes harsher criminal penalties on those in violation of section 692.204. Any Chinese individual who violates the new law is criminally liable for a third-degree felony, punishable by up to five years imprisonment and a fine up to $5,000.[114]
The discriminatory purpose underlying the law’s enactment is further demonstrated by the politicians who sought its implementation. According to Governor DeSantis, the law was meant to “counteract the malign influence of the Chinese Communist Party in the state of Florida” and to “root out Chinese influence in Florida’s education system.”[115] DeSantis’ comments possess an intrinsically discriminatory quality, as they overtly single out individuals on the basis of their citizenship in China, rather than any substantiated wrongdoing by the individual. These assertions are reminiscent of the older alien land laws, which vilified Asian immigrants merely because of their ethnicity. Lieutenant Governor Jeanette Nuñez echoed these sentiments, attributing various sociopolitical wrongdoings to the Chinese Communist Party, stating: “[t]he Chinese Communist Party cheats on trade, steals our intellectual property, and produces deadly drugs like fentanyl that are pouring into our southern border.”[116] The employment of such generalized allegations further stigmatizes, alienates, and marginalizes individuals on the basis of Chinese citizenship. Commissioner of Education Manny Diaz, Jr. also endorsed “removing this influence and focusing on the importance of American ideals and citizenship through civics education.”[117] Finally, Commissioner Simpson, the defendant in Shen et al. v. Simpson, vilified those from countries of concern, stating that “China and other hostile foreign nations control hundreds of thousands of acres . . . leaving our food supply and our national security at risk.”[118] Collectively these statements suggest that the law in question was influenced by preconceived biases and prejudices against Chinese people. The confluence of these statements with the text of the bill evince the discriminatory motivations that serve as the foundation of the act.
Even an outwardly neutral policy can result in discrimination when it has a discriminatory effect.[119] The FFHA authorizes disparate impact claims, which do not require a showing that the state intended to discriminate against a particular group.[120] Disparate impact can be proven through evidence of a practice that “actually or predictably results in discrimination.”[121] The rationale behind disparate impact theory is that “[c]onduct that has the necessary and foreseeable consequence of perpetuating segregation can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment” of ensuring equitable housing opportunities.[122] Additionally, “[a] strict focus on intent permits racial discrimination to go unpunished in the absence of evidence of overt bigotry.”[123]
Even assuming, arguendo, that the Florida Alien Land Act is on its face a neutral policy, it has and will continue to have an adverse impact on those from the countries of concern, particularly Chinese individuals. Most notably, as of July 1, 2023, a considerable amount of land will now be rendered inaccessible to these individuals. The restrictions on property acquisitions within a ten-mile radius of a “critical infrastructure facility” or a “military installation” encompass substantial portions of Florida, covering numerous densely populated and highly developed regions of the state.[124] This process results in the establishment of exclusionary zones that are predicated on an individual’s country of origin. There are at least twenty-one large military bases in Florida, many of which are within a short distance from Florida’s major cities.[125] For example, Jacksonville, which is the largest city in the state of Florida, is home to a naval station that spans 3,800 acres.[126] If the law is implemented, citizens from these countries will be prohibited from acquiring real estate within a ten-mile radius of the 3,800 acres. Approximately 2,934 homes, which are within a ten-mile radius of the Jacksonville Naval Station, are now unavailable to these individuals.[127] The resulting impact is potentially devastating, effectively disallowing ownership of property within most of the major economically significant regions in the state.
In addition to foregone opportunities to acquire certain properties, the enactment of the new law is anticipated to lead to discriminatory practices by real estate sellers against prospective property buyers.[128] Due to the severe legal consequences with selling property in contravention to the new legislation,[129] it is highly likely that sellers will adopt a more rigorous approach to real estate transactions, which may involve heightened scrutiny of impermissible considerations such as personal identification, physical attributes, or vocal characteristics. If there is some reason to believe that a buyer is a citizen of a “country of concern,” that person would be susceptible to additional scrutiny, leading to only certain buyers being systematically discriminated against during the real estate process. Currently, it is mandatory for any prospective buyer, regardless of the location of the property, to fill out an affidavit attesting that they are not a “foreign principal” as defined in section 692.201.[130]
Even though the law only just went into effect on July 1, 2023, it has already had a deleterious impact on Chinese citizens. In Shen et al. v. Simpson et al., plaintiff Yifan Shen, who lacks citizenship or permanent residency in the United States, signed a contract in April of 2023 to purchase property in Orlando intended to serve as her primary residence.[131] The subject property is ten miles from a critical infrastructure facility and five miles from a military installation.[132] Because the estimated closing date falls after the effective date of the laws, the would-be buyer will be unable to obtain possession of her new residence, resulting in the forfeiture of her $25,000 deposit. [133]
Despite any argument about the law’s purported neutrality, the implementation of the Florida Alien Land Act has exhibited and will continue to exhibit adverse effects, particularly affecting individuals of Chinese citizenship, and those from nations deemed as countries of concern. This legal framework cultivates an environment that not only facilitates bias in the real estate transaction, but also contributes to the marginalization and stigmatization of those individuals who hail from countries of concern. The resulting effect is the erosion of the FFHA’s protection of fair housing opportunities.
The first alien land law of 1913 was justified, in part, as a result of the perceived threat from Japan and the (distorted) ascription of disloyalty of Japanese immigrants.[134] As history appears to repeat itself, the Florida New Alien Land Law is rationalized on a similarly flawed assumption that Chinese citizens are “foreign agents” and, thus, pose a risk to national security.[135] After a plaintiff establishes a prima facia case for discrimination, the burden shifts to the defendant to prove that the policy “is necessary to achieve a valid interest.”[136] Even if the state offers a legitimate, non-discriminatory reason for its actions, a violation under the FFHA may still be proven by showing “pretext” or that “the proffered explanation is unworthy of belief.”[137] Pretext can be demonstrated with evidence that “the proffered reasons are factually baseless.”[138] Evidently, “pretext” can be easily demonstrated in this context.
First, there is no evidence to demonstrate that possession of land in close proximity to “critical facilities or military installations” poses a security risk. Many, if not all, of these sites have robust security protocols.[139] Owning land within ten miles of a site will not automatically (or even easily) allow an individual to bypass all security protocols. Furthermore, breaches in security can be effectuated anywhere in the world and are not dependent on geography. In fact, many breaches have been orchestrated abroad.[140] In 2020, a massive security breach allowed hackers to penetrate systems of federal agencies.[141] The perpetrators successfully breached those networks located within the United States from remote locations across the globe.[142] Evidently, the ten-mile restriction is arbitrary and presents a misguided illusion of security, without confronting the reality of present-day international threats.
Second, there is no evidence to suggest that citizens from the countries of concern are procuring substantial amounts of property within the state to warrant this type of action. According to the “2022 Profile of International Residential Transactions in Florida” conducted by the Florida Realtors Research Department, the top five countries of origin of foreign buyers in Florida were Canada (21%), Colombia (8%), Argentina (8%), Brazil (6%) and Peru (4%).[143] Venezuela was the only country of concern to make the top twelve countries, with only 4% of all foreign purchases in Florida.[144] This data suggests that individuals from the designated countries of concern constitute a negligible fraction of the overall foreign ownership of property in Florida.
Lastly, the law conflates nationality with the propensity to commit a security attack. It should go without saying that not all citizens from these countries of concern are potential security threats. In fact, many of those that now reside in the United States fled those respective countries and are now in the United States to escape the oppressive governments from which they came. For example, with respect to China, “a combination of draconian Covid lockdowns and Xi Jinping’s increasingly repressive rule” have pushed many to come to the United States to seek refuge.[145] The conflation of an individual’s nationality with the notion of being a “security risk” is overtly discriminatory because it relies on sweeping (and erroneous) assumptions about an individual’s potential behavior, intentions, and character, solely based on their country of origin. By reducing individuals from diverse backgrounds into one monolithic group, the law further institutionalizes discrimination, as the first alien land law did over 100 years ago.
The enactment of the FFHA played an integral role in the advancement of civil rights in the United States. Upon signing the FFHA over fifty-five years ago, President Lyndon Johnson declared “fair housing for all—all human beings who live in this country—is now a part of the American way of life.”[146] The implementation of the FFHA demonstrates a collective effort across the United States to confront discrimination and bias in housing administration. Notwithstanding the enormous efforts made by fair housing advocates, the objectives of the FFHA continue to face resistance five decades later.
The issue of discrimination based on noncitizenship or immigration status continues to be widespread, particularly in the realm of housing accessibility and security. Enacting legislation that promotes discriminatory housing practices against national origin minorities is antithetical to the heart of the FFHA. The Florida New Alien Land Law harkens back to the exclusionary policies of the nineteenth and twentieth centuries that were driven by unfounded fear of and hostility towards immigrants. The conflation of national origin and national security serves only to foster an environment of exclusion and discrimination.
With Florida’s recent implementation of the New Alien Land Law, it has positioned itself as a potential model for other state legislatures. Florida’s New Alien Land Law, and similar state legislation, will only perpetuate harmful narratives, and in turn, facilitate disparate treatment in real estate transactions. The legitimacy of such laws warrants close scrutiny, and it is incumbent upon the courts to deem them as contravening the FFHA. The policies in question have a significant impact not only on immigrants, but also on American citizens who possess the lawful right to reside within the country without fear of discrimination.
California Law Prohibits Asian Immigrants from Owning Land, Equal Just. Initiative, https://calendar.eji.org/racial-injustice/may/3 [https://perma.cc/UK4X-JVZH]. ↑
The fundamental basis of all legislation upon this subject, State and Federal, has been, and is, race undesirability. It is unimportant and foreign to the question under discussion whether a particular race is inferior. The simple and single question is, is the race desirable? . . . [The law] seeks to limit their presence by curtailing their privileges which they may enjoy here; for they will not come in large numbers and long abide with us if they may not acquire land. And it seeks to limit the numbers who will come by limiting the opportunities for their activity here when they arrive.
Susie Sato, Before Pearl Harbor: Early Japanese Settlers in Arizona, 14 J. Am. His., 317, 321 (1973). ↑
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977). ↑