Property and Prejudice

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food security, and prevention of absentee ownership. But these laws completely fail to achieve their asserted goals. The poor means-end fit, combined with the availability of far less restrictive alternatives, leaves the new laws vulnerable to legal challenges under the Equal Protection Clause and the Fair Housing Act. But century-old Supreme Court precedents and gaps in legal doctrine may still make it difficult for such challenges to prevail. Preemption arguments based on immigration law, the foreign affairs power, and federal laws governing foreign investment, as well as Dormant Commerce Clause arguments, also involve legal hurdles. This Article analyzes these legal arguments, evaluates potential obstacles, and charts possible paths forward. Regardless of the legal viability of these laws, this Article cautions that they will perpetuate prejudice, open the door to a new form of segregation, and limit who can achieve the American Dream.