Abstract
Excerpted From: Andy Z. Lei, From Railroads to Real Estate: The Legacy of Exclusion Revived in New Alien Land Laws, 26 Asian-Pacific Law and Policy Journal 102 (Fall, 2024) (303 Footnotes) (Full Document)
In the shadow of towering skyscrapers and sprawling estates lies a battleground not of arms but of laws, where the specter of national security looms large over the right to own a piece of the American dream. Zhiming Xu, a political asylee who fled to the United States from persecution by the Chinese government, finds himself barred at the threshold of homeownership, not by financial constraints, but by a law that echoes an exclusionary past. This is not just a story of one; it's the narrative of many who find themselves entangled in legislative efforts like Florida's Senate Bill 264 (“SB 264”), which restrict foreign nationals from designated “countries of concern” from purchasing real estate. At stake is more than property, it's the American dream itself, bound not just by the dream of property ownership but by the constraints of government overreach and xenophobia.
The election of Donald Trump in 2024, spurred by populist movements and renewed rhetoric on immigration and national security, has reignited debates that many believed were consigned to history. Accompanied by shifting geopolitical tensions with China, where concerns over espionage and communism have become flashpoints, numerous states are resurrecting legislation eerily reminiscent of early twentieth-century alien land laws.
These legislative attempts, framed as measures to protect national security, prompt critical inquiries into the balance between security and discrimination. The echoes of the past--alien land laws that prohibited Asian immigrants from owning land, the Chinese Exclusion Act, and the incarceration of Japanese Americans during World War II under Korematsu--resound in these present actions, and reveal a recurring pattern of using national security to justify targeting vulnerable groups. Scholars have previously examined the xenophobic underpinnings and constitutional vulnerabilities of such laws. This paper aims to build upon those foundations and contributes new perspectives by linking the reemergence of property ownership restrictions to a shifting geopolitical landscape and incorporating Professor Eric K. Yamamoto's Strategic Blueprint for National Security Accountability (the “Strategic Blueprint”), as conceptualized in White (House) Lies, to propose a structured judicial and societal response to the New Alien Land Laws.
Such legislation has historically benefitted white Americans, reinforcing systemic inequalities at the cost of minority rights and freedoms. Yet, what is truly at stake is the fundamental fairness and equity of American society, challenging us to confront whether history will look back on these laws as protective measures or as relics of prejudice. This paper argues that these legislative actions are not mere reflections of national security concerns but rather manifestations of historical anti-Asian sentiment, repackaged in contemporary legal measures. However, this paper does not focus on the complexities of the United States-China relations, but instead aims to analyze the New Alien Land Laws through the lens of past historical injustices.
By employing Strategic Blueprint, this analysis aims to promote a structured method for ensuring that national security measures do not overshadow constitutional rights. The Strategic Blueprint originates from a deep understanding of the historical and ongoing challenges faced by the judiciary in maintaining a balance between national security and civil liberties. Its purpose is to foster rigorous judicial scrutiny that does not merely accept at face value the executive branch's claims of national security needs. By combining critical legal advocacy, media involvement, and grassroots efforts, the blueprint aims to educate and influence both public perception and judicial review.
Through this lens, the analysis will explore the roots and ramifications of historical legislative attempts to exclude Asians, scrutinize the contemporary legislative measures' direct and indirect effects, and provide a comprehensive critique encompassing legal and social justice dimensions. This paper also critically examines the limitations of current legislative efforts, placing them within the broader history of injustice and questioning their impact on national security without perpetuating exclusionary practices.
To do so, Part II traces the historical antecedents of contemporary legislative efforts to restrict property ownership by foreign nationals. The exploration will begin by examining the Chinese Exclusion Act, which prohibited the immigration of Chinese nationals. It will then revisit the Alien Land Laws of the early 20th century, which systematically excluded Asian immigrants from the American promise of land and liberty. Finally, it analyzes the infamous Korematsu v. United States decision, which sanctioned the incarceration of Japanese Americans during World War II under the pretense of national security. By examining historical episodes of discrimination framed as national security, this paper seeks to reveal the cyclical influence of past prejudices on present policies.
Part III analyzes the specifics of SB 264 and similar legislation in other states, offering a critical analysis of their provisions, justifications, and the broader socio-political context in which they were enacted. It begins by scrutinizing the legal and ethical foundations of these laws, questioning the purported balance between security and liberty, then it provides an overview of the legal challenges mounted against these laws in Shen v. Simpson.
Building on the groundwork laid by the previous sections, Part IV will then employ Professor Yamamoto's Strategic Blueprint for National Security Accountability to critically evaluate how the judiciary can effectively balance civil liberties against the expansive claims of national security. Employing this blueprint in the context of SB 264 and its historical predecessors, this section advocates for a judiciary that ensures legislation like SB 264 is critically reviewed with attention to both immediate legal impacts and broader societal implications. This analysis will dissect the role of critical legal advocacy in challenging not only the text, but the underlying societal narratives and power structures reinforced by such laws. It will argue for the judiciary's proactive stance in demanding rigorous justification for any security measure that infringes upon individual rights. In doing so, reminding the judiciary of its role as a backstop to unwarranted government overreach and ensuring that national security does not serve as a carte blanche for undermining fundamental freedoms.
[. . .]
The journey from the Chinese Exclusion Act and Alien Land Laws to today's SB 264 in Florida mirrors America's enduring tension between its celebrated ideals and its practices of exclusion, particularly under the guise of national security. This historical continuum reveals a significant shortfall in acknowledging and addressing the impacts of such policies, threatening the essence of American values like liberty and equality.
The United States now stands at a crucial juncture, faced with the resurgence of exclusionary laws that challenge its foundational principles. This moment calls for a clear decision: to either perpetuate a history of exclusion or to steer towards a future that truly embodies inclusion and fairness. The persistence of discriminatory policies, fueled by a historical failure to fully confront and remedy their consequences, demands a decisive shift towards justice, equity, and the unconditional protection of rights for all. In light of the Trump presidency and ongoing criticism of the Supreme Court's conservative tilt, the urgency to address and counteract exclusionary laws like SB 264 has never been greater. Without proactive judicial and societal interventions, there is a significant risk of more widespread abuse driven by racial animus disguised as national security.
The discourse surrounding SB 264 provides an opportunity to amend these long-standing errors by reinforcing the need for a judiciary that scrutinizes and challenges governmental claims of national security rigorously. It urges an evolution from past judicial deference to a more proactive role in protecting civil liberties against unchecked executive powers. By advocating for a judiciary that demands rigorous evidence and evaluates the constitutional validity of national security claims, we can safeguard against the misuse of power and uphold the fundamental liberties that define our democratic society. This proactive stance is vital to prevent future injustices and ensure that security measures are balanced with the preservation of individual rights.
The battle against discriminatory policies, informed by an understanding of historical patterns, calls for a revitalized commitment to the principles of justice and equality. By choosing to move away from exclusion and towards inclusivity, America can shape a legacy that truly reflects its highest ideals. The time for action is now; it is an opportunity to redefine America's legacy and affirm its dedication to a more just and inclusive society.
J.D. Candidate, University of Hawai'i at Mnoa William S. Richardson School of Law, 2025; B.A. Economics, University of Hawai'i at Mnoa, 2021.
