SPENCER PEEK—Governor Ron DeSantis enacted SB 264 “to counteract the malign influence of the Chinese Communist Party in the state of Florida,” according to a statement from his office. Since its enactment, SB 264 has been the subject of controversy. It prohibits buyers domiciled in China and restricts others domiciled in “Countries of Concern,” from purchasing any agricultural land or land within ten miles of any military installation or “critical infrastructure” in Florida. The areas foreclosed to Chinese buyers are extensive, for example, SB 264 prohibits Chinese buyers from purchasing land in most of south Florida’s tri-county area.
SB 264 was challenged in the Northern District of Florida in Shen v. Simpson. Plaintiffs, four Chinese citizens living in Florida and a brokerage that does business with Chinese citizens, made several arguments challenging SB 264. Here, the focus will be on whether SB 264 violates the Equal Protection Clause of the Fourteenth Amendment.
On August 17th, the district court issued an Order denying the Plaintiffs’ motion for a preliminary injunction. After determining the Plaintiffs likely had standing to challenge the law, the court found that the Plaintiffs had not shown a substantial likelihood of success on their equal protection claim. The success of the claim was largely dependent on the standard of review. The court, in turn, analyzed whether strict scrutiny or the highly deferential rational basis would apply.
The primary issue when determining the applicable standard of review is the basis upon which those affected by the law are classified. If SB 264 is classified on race or national origin, strict scrutiny would apply. Instead, the court determined that SB 264, by classifying on on the basis of domicile, is “facially neutral as to race and national origin,” holding that it applies equally to all persons domiciled in China, regardless of race or national origin.
The court did, however, find that SB 264 classifies based on alienage. The inquiry then turned to whether alienage classifications trigger strict scrutiny. Finding that they do not, the court relied on four Supreme Court cases decided in 1923: Terrace v. Thompson; Porterfield v. Webb; Webb v. O’Brien; and Frick v. Webb (the “Terrace Cases”). It was found that “the Court has held that states could deny aliens ownership interests in land within their respective borders absent an arbitrary or unreasonable basis.”
Porterfield, Webb, and Frick all involved the California Alien Land Laws, Terrace involved a similar statute enacted in Washington. Unlike SB 264, which classifies based on domicile, the California and Washington laws classified based on eligibility for future citizenship. Quoting the decision in Porterfield, the court held that it is within Florida’s police power to “tailor an alienage classification (as it relates to property ownership) to meet ‘its own problems, depending on the circumstances existing there.’”
While the Supreme Court hasn’t expressly overruled the Terrace Cases, plaintiffs argued that they have been implicitly overruled, primarily by Takahashi v. Game & Fish Comm’n and Oyama v. California. Both cases found that the California Alien Land Laws violated equal protection as applied to specific circumstances. The district court rejected the plaintiffs’ argument, holding that without an explicit overruling by the Supreme Court, the Terrace Cases apply.
In Oyama,it was held that allowing the state to take agricultural land from a U.S. citizen because his father, a noncitizen ineligible for naturalization, financed it, amounted to a violation of the son’s equal protection rights. In Takahashi, “barring the issuance of commercial fishing licenses to persons ‘ineligible to citizenship’ . . . precluded such a one from earning his living as a commercial fisherman in the waters off the coast of the state,” was found to be unconstitutional.
While non-binding, evidence that the Court did intend to overrule the Terrace Cases can be found in its failure to address Sei Fuji v. State of California. Decided by the California Supreme Court shortly after its decisions were reversed in Oyama and Takahashi. The plaintiff, a Japanese immigrant, purchased property to build a home but California sought to prevent him from doing so. The court in Sei Fuji held that the law was invalid in violation of the Fourteenth Amendment, holding that the “constitutional theories upon which the Porterfield case was based are today without support and must be abandoned.” Sei Fuji was not appealed, and a case has not come before the Court since, which prompted consideration of the Terrace Cases. Perhaps Shen v. Simpson will offer an opportunity for courts to clarify the muddled issue of how states may classify based on alienage when regulating real property.
In Shen, after determining that strict scrutiny is unlikely to apply based on SB 264’s alienage classification, the court held that SB 264 was not motivated by discrimination based on race, national origin, or alienage. Such motivations would subject a law to strict scrutiny. The Sei Fuji court considered the legislative history of California law, particularly the argument that Japanese immigrants were gaining control over the agricultural industry in California, when determining that the law was motivated by racial animus. This agricultural control argument is mirrored by statements surrounding SB 264’s enactment, but this time, it is targeted at Chinese immigrants.
The preceding arguments notwithstanding, if strict scrutiny is unlikely to apply here, the state still cannot deny aliens property rights arbitrarily or unreasonably. As acknowledged earlier, SB 264 was enacted to counteract the Chinese Communist Party’s influence in Florida. However, a blanket ban on all persons domiciled in China can be argued as disproportionate in relation to Florida’s interest in limiting CCP influence. The CCP has 98 million active members while China has a population of 1.4 billion. Prohibiting 15% of the global population from acquiring land in Florida to combat an adversary with less than 100 million members is almost certainly arbitrary and unreasonable.
