Excerpted From: Emily Behzadi Cárdenas, National Security or National Origin? The Implications of Florida's Alien Land Law under the Federal Fair Housing Act, 75 South Carolina Law Review 195 (Winter 2023) (145 Footnotes) (Full Document)

EmilyBehzadiCárdenasThe 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. 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. 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.

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. On May 8, 2023, Florida enacted Senate Bill 264, referred to as the “Florida New Alien Land Law.” This legislation prohibits Chinese citizens from purchasing real estate in the state unless certain restrictions apply. 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.”

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. 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.

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. The Alien Land Laws, initially enacted in California in 1913, prevented “aliens ineligible” to be citizens--nonwhite, particularly, Asian immigrants--from owning real property. 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. 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. Indeed, only fourteen states currently have no alien land restriction of any kind.

The right to possess is one of the most fundamental property rights on which our constitution and laws are based. 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. 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.” 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.

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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.” 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.

Associate Professor, California Western School of Law.