Lawfare Archive: Chinese Property Ownership and National Security

Summary

The Lawfare Podcast: Chinese Property Ownership and National Security Episode: Lawfare Archive: Chinese Property Ownership and National Security | Release Date: June 1, 2025

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Introduction

In this archived episode of The Lawfare Podcast, hosted by Carolyn Cornett, the discussion centers around a pivotal Florida law that prohibits Chinese citizens from owning property within the state. Originally aired on May 21, 2024, the episode features an in-depth conversation between Hae Min Hahn, Associate Editor at Lawfare, and Matthew Erie, Associate Professor at the University of Oxford. The dialogue explores the implications of this legislation within the broader context of U.S.-China relations and national security concerns.

Background: Florida's SB264 Law

At the outset, Carolyn Cornett contextualizes the episode by highlighting recent legislative trends across the United States aimed at restricting property ownership by Chinese nationals. Texas recently passed a similar bill, joining over 20 states considering such measures, with 15 states enacting comparable restrictions in 2023.

Key Quote:

"Texas is one of more than 20 states in the process of passing laws that would block land sales to Chinese citizens, and 15 states implemented similar restrictions in 2023."
— Carolyn Cornett [02:43]

Key Provisions of SB264

Matthew Erie provides a detailed breakdown of Florida's SB264, emphasizing its comprehensive approach compared to other state laws. Unlike shorter statutes, SB264 spans approximately 30 pages, addressing various aspects such as:

• Prohibition of Property Ownership: Specifically targeting Chinese principals, the law bans Chinese citizens from owning real estate statewide, with exceptions for non-tourist visa holders and asylees.

• Two-Tier Penalty System: Violations by Chinese individuals or entities are treated more severely, classified as felonies, compared to misdemeanors for other foreign nationals.

Notable Quote:

"The Florida law is unusually long... and it may be helpful just to kind of highlight those particular points."
— Matthew Erie [04:32]

Legal Challenges: Shen vs. Simpson

The episode delves into the ongoing litigation challenging SB264, specifically the case of Shen versus Simpson. This lawsuit marks the first significant legal contest against state-level China-related legislation, with plaintiffs arguing that the law is inherently discriminatory.

Key Points:

• Plaintiffs: Comprise four Chinese nationals and a real estate company servicing the Chinese community in Florida.
• Current Status: After losing a preliminary injunction in district court, the plaintiffs secured a partial injunction from the 11th Circuit, which is pending further appeals.
• Potential Impact: A favorable ruling for the plaintiffs could set a precedent discouraging other states from enacting similar laws.

Notable Quote:

"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."
— Matthew Erie [13:28]

Constitutional Arguments Against SB264

Matthew Erie outlines the primary constitutional challenges against SB264, focusing on three main areas:

1. Equal Protection Clause:

   • Argument: The law discriminates based on national origin, violating the 14th Amendment's guarantee of equal protection.
   • Counterpoint: Florida contends that the law addresses national security concerns related to totalitarianism, not mere nationality.

2. Due Process Clause:

   • Argument: The blanket prohibition on property ownership constitutes unreasonable governmental interference with individual property rights.

3. Federal Preemption:

   • Argument: Property and foreign affairs are predominantly under federal jurisdiction, suggesting that state-level restrictions may overstep constitutional boundaries.

Notable Quote:

"No state shall deny to any person in its jurisdiction equal protection of laws."
— Matthew Erie [14:44]
(Referencing the 14th Amendment)

Broader Implications: State vs. Federal Power

The conversation shifts to the tension between state autonomy and federal authority in regulating foreign ownership of property. Erie emphasizes that while state legislatures are taking proactive stances against perceived Chinese threats, they may lack the necessary intelligence infrastructure to effectively assess and address these concerns.

Key Points:

• State Autonomy: States are leveraging existing property laws and historical precedents to justify new restrictions.
• Federal Oversight: Agencies like the Committee on Foreign Investment in the United States (CFIUS) may have more robust mechanisms to evaluate national security threats related to foreign investments.

Notable Quote:

"State legislatures and the federal government are sort of operating on, on hunches to some extent."
— Matthew Erie [31:18]

Trends Across the United States

Matthew Erie highlights that the movement to restrict Chinese property ownership is not confined to Republican-led states like Florida and Texas. Democratic states, including California, Connecticut, and New Jersey, have also introduced similar legislation, marking the issue as a bipartisan concern.

Notable Quote:

"A number of Democratic states have also been very active. California and Connecticut included... a bipartisan phenomenon."
— Matthew Erie [10:15]

Historical Context: Precedents of Property Law Discrimination

Erie draws parallels between current legislation and historical exclusionary practices in U.S. property law, such as:

• Chinese Exclusion Act of 1882
• California Alien Land Law of 1913 (targeting Japanese nationals)

These historical instances inform contemporary legal and legislative approaches, suggesting a recurring pattern of using property law as a tool for broader sociopolitical exclusion.

Notable Quote:

"We have a history of exclusion in U.S. Property law. There are long standing exclusionary practices against black Americans, against Native Americans historically, and also against Asians and Asian Americans."
— Matthew Erie [35:05]

Future Outlook and Federal Responses

Looking ahead, Erie discusses potential federal actions to address state-level overreach, including proposed legislation aimed at preempting state laws like SB264. The outcome of Shen versus Simpson and the forthcoming U.S. Presidential Election are anticipated to significantly influence the trajectory of such legislation.

Key Points:

• Federal Legislation: Efforts to establish nationwide standards regulating foreign property ownership may seek to override state-specific bans.
• Judicial Outcomes: Final rulings in high-profile cases will set critical legal precedents affecting future legislation.

Notable Quote:

"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 their way through the system."
— Matthew Erie [45:22]

Conclusion

This episode of The Lawfare Podcast offers a comprehensive examination of Florida's SB264 law within the larger framework of U.S.-China relations and national security. Through the insights of legal scholar Matthew Erie, listeners gain an understanding of the constitutional challenges, historical precedents, and bipartisan nature of current legislative trends aimed at restricting Chinese property ownership. The ongoing legal battles and potential federal interventions underscore the complexity and significance of this issue in shaping the future of property law and international relations in the United States.

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Transcript

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[Carolyn Cornett]

I'm Carolyn Cornett in Turnout Lawfare with an episode from the Lawfare archive for June 1, 202025 Last month, the Texas House of Representatives approved a bill banning citizens of China, Iran, North Korea, and Russia from owning property in the state. Texas is one of more than 20 states in the process of passing laws that would block land sales to Chinese citizens, and 15 states implemented similar restrictions in 2023. For today's archive episode, I selected an episode from May 21, 2024, in which Hae Minh Han spoke with Matthew Erie about a Florida law banning Chinese ownership of property in the state. They discussed ongoing litigation challenging the law, how these restrictions fit into the growing economic battle between the United States and China, and more.

[Hae Min Hahn]

It's the Lawfare Podcast. I'm Hae Min Hahn, Associate Editor at Lawfare, with Matthew Ehri, Associate Profess at the University of Oxford. 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 divestor 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.

Well, thanks so much for having me, Haman. I appreciate the opportunity.

So the Florida law in question is.

Known as SB264, 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 kind of 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 foreign principles, end.

Quote, from purchasing agricultural land or other.

Real estate, and requiring foreign principles 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 principles 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 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.

Principles 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 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 minimis indirect interest in real.

Property in the state. So that end quotes, 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 persons.

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 plus the.

Chinese, they get a felony of third degree. So there's a significant difference there in.

Terms of this tiered system.

So it's quite unusual in that respect.

[Hae Min Hahn]

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 like 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 that particular requirement is discriminatory. It kind of is a stigma that's placed upon them because of their nationality that they have to engage in this.

And fulfill this particular requirement.

So that's correct.

[Hae Min Hahn]

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]

Well, that depends.

So I think you, you know, 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.

[Hae Min Hahn]

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 what the first of all, what it looked like in terms of party lines, whether this was bipartisan and also what specific justification they used 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 sort of political position, his candidacy, and for putting himself.

Forward as somebody that's very tough on China.

But Florida, of course, is the 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 and semiconductors to Taiwan to human rights, forced labor and xinjiang procurement, education, etc. Et cetera.

And it doesn't just apply to Republican states, it's also Democratic states that are.

Passing these bills into law.

So a number of scholars have started looking at these bills and laws and what they found is that really it started in 2020 and 2022, kind of in that, in that range when you started seeing more of these bills. And I think part of it was 2021 when Biden assumed the presidency and many of the red states were sort.

Of positioning themselves as taking leadership on.

Anti China stance with the idea that the Biden administration was soft on China. Right. 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 most 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, you know, one party or the other.

[Hae Min Hahn]

I definitely want to get back to your research, which is really extensive on the national kind of 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 SB264 and where that currently stands?

[Matthew Erie]

Yep.

Absolutely.

So the case that has emerged as really the first case to challenge this group of China related state legislation is.

Called Shen versus 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 11th Circuit and they won a partial injunction, although it's pending appeal. And so this very important case is kind of winding its 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, 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.

Potentially it could encourage or incentivize other.

States in terms of their China related bills to pass them into law. And we may see a further sort of 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.

[Hae Min Hahn]

Yeah. 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 sort of.

More robust at the constitutional level than others.

But let me kind of march through.

These and we can talk about it.

So at the constitutional level we have three main types of arguments. 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.

No state shall deny to any person in its jurisdiction equal protection of laws.

There is a famous case from 1886 called Yickwa vs Hopkins which applies this.

To anyone in the state, regardless of.

Their race, color or national origin.

Right. 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, 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 kind of the narrow issue here. And there's one case on the books, Oyama vs California 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.

It quote, ties the issue art, 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 basically is a proxy for national origin or nationality and that it's a kind of 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 versus 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 sort of 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 kind of a.

Hot issue right now in this field of property ownership and in the case.

Of Shen versus Simpson, could really, you.

Know, take this forward 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, it's one that warrants some 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.

Right. So again, going back to Yick Wo versus 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, Rawls Corporation Versifius, 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.

So this is also a sort of ongoing issue 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.

Versus US 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 a established statutory scheme and as I mentioned has jurisdiction over real estate transactions.

CFIUS is considered in the sort of 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 sort of a one size fits all approach.

Right. So it's the scalpel versus the sledgehammer.

[Hae Min Hahn]

Right.

[Matthew Erie]

And then lastly 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, et cetera. And the plaintiffs have argued in Chen vs. Simpson that the Florida law appears to violate Section 1, 1604 of the Fair Housing act as it discriminates on the basis of national origin, as they argue. So that just kind of is a.

Quick overview of the various sort of.

Arguments that have been put forward by the plaintiffs. And I've mentioned to some degree the response by the state of Florida.

[Hae Min Hahn]

Yeah, thanks. This is really helpful. And I mean, one of the many interested parties here is of course the US Government who did submit a statement of interest at one of the preliminary injunction stages. And I'm curious to get your thoughts on their kind of approach to entering into this litigation. Their brief, as I recall, it 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're, you anticipate that they will try and get involved here or let it kind of 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 sort of 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 foreign affairs clause, and these effectively give the federal government sort of 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 adornment.

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 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.

And I think more generally in terms of a strategy, it may be trying to allow, you know, the courts to sort of 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. So really it's sort of a wait.

And see right now.

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[Hae Min Hahn]

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 US and we kind of 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 US and kind of talk about how it's possible, given existing property law, for these states to be kind of 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. So 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 that it's not just a kind of red state phenomenon. This is something that has broad sort of bipartisan appeal.

And I think that is really emblematic of where we are right now in.

The US China relationship that there is.

A vast amount of anti China sentiment.

In the U.S. we see that reflected in these bills in this core pillar.

Of US 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 a property close to.

Critical infrastructure and military installations in the.

US and that's going to allow them to attack either sort of outright these infrastructures or installations, or allow them to surveil or otherwise access data, including personal.

And private data, of US 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 like 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 US or something along those lines.

But the, the actual evidence of this.

Happening as in terms of a Chinese.

Strategy, you know, is, is, hasn't really played out. We don't really have that, that evidence or data to date. So I think, you know, state legislatures and the federal government are sort of operating on, 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, from the Chinese on this point, given that the US 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.

But okay, so we have the China threat, the China scare, as very applicable throughout the US 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 sort of, where do these laws come from? Right. And this is what I call the epistemic side of the lawmaking. And to date, there are a number of interests that are sort of 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 kind of mirroring.

This or copying this in their own bills.

And so there's this kind of spillover.

Effect that we see throughout, 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 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, their relationship to the Chinese Communist Party, the relationship between Chinese individuals and the ccp, and.

Also the relationship between Chinese entities and.

Then 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 kind of what you were asking in your question about how.

These current state bills and laws operate.

Within the context of US Property law.

And there we see there actually is a history of exclusion in US Property law.

There are long standing 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 sort.

Of 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 kind.

Of there on the books.

And these are sort of 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 state rights.

Argument in terms of the 10th Amendment.

That they have provenance, they have jurisdiction.

Over property related issues within their state.

And inciting some of those hundred year old cases, the terrorist 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.

[Hae Min Hahn]

Thanks for that. So you just gave us a great overview of how property law liberalism 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 and the Biden administration? Was it even prior to that? I mean, you did talk about this kind of old long standing tradition of exclusion when it comes to property ownership, but especially the China element. In your research, have you come across like a pivotal point or a 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 19th century, discriminatory laws against Asians in the US 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 is, there are all those precedents right, 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.

China is the enemy across a broad spectrum of issues, certainly through the focal.

Point of the US China trade war.

Starting during the Trump administration in 2017 and carrying forward. And now we have sort of the tech war component of that.

But China's 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 sort of layer of Sinophobia laid upon the.

Pre existing layer of sort of these.

Discriminatory exclusionary property practices, it's sort of this toxic mix that we see now.

And so it's hard to sort of specify, you know, was there a turning point?

I mean, maybe it was the US 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 precedence because.

What'S happening now is not necessarily totally new.

[Hae Min Hahn]

And another thing that you said earlier was that there's a question here about who should be able, 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 kind of regulating Chinese money basically in the US and its interests in the US 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, well, 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 kind of make that more robust as these kinds of laws come into play, or are they just really putting these laws up in a kind of blind way?

[Matthew Erie]

Yeah, so I think fundamentally what's happening here is that we see this new tension, or again, it sort of has a long standing 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, Republicans, Republican versus Democratic Party, that are sort of at loggerheads.

And I think it's that political polarization now that has sort of seeped down.

Into the state federal relationship.

And again, sort of 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 in engaging with China, both.

The Chinese central or national government, but also the provincial governments.

Oftentimes it is a US State collaborating with a Chinese province, the provincial government.

So that is the sub national 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.

But the issue again, that we've been.

Trying to address in our conversation today is where state governments sort of pass, you know, exceed a certain line in.

Terms of their powers. And then what are the policy implications of that?

So again, just to kind of restate, I think it's important always to go back to the relevant legal framework. So we have a framework of constitutional federal sources of law that give us a kind of understanding in terms of.

How state governments and 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 in the federal, excuse me, 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 posed outweighs the benefits.

And all of that is sort of.

Counterbalanced with the 10th Amendment that states.

That powers not delegated to the US by the Constitution nor prohibited to the.

States are 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 Chen vs. Simpson.

And the courts are now trying to sort of, 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 US China, given the sensitivities, I mean, 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, US allies.

So there's a lot of really extremely.

Important, red hot, important issues that are.

At play with these broader dynamics as states are becoming more and more active. Right.

So one concern would be if a.

State government sort of of its own will recognize Taiwan as an independent state.

Right.

Which is not the status quo. It would violate a number of agreements. But that sort of action, I think would would be sort of 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? Well, 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 sort of 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 wanting their way through the system. For example, Shen versus Simpson, as we see what happens with the US 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.

[Podcast Advertiser]

Well, we'll leave it there.

[Hae Min Hahn]

Thank you very much, Matthew Uryu, for joining us.

[Matthew Erie]

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

[Hae Min Hahn]

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