Property as National Security

• Published in: Wisconsin law review 2024-01, Vol.2024 (1)
• Main Author: Erie, Matthew S.
• Format: Article
• Language: English
• ISSN: 1943-1120
• DOI: 10.59015/wlr.ACHH7075

Two historically disparate fields of law—property and national security—are colliding through the hyper-activity of state governments. Against the backdrop of the U.S.-China trade/tech war, state governors and legislatures are competing with each other in introducing bills to sever all ties with China, stunt the growth of Sinocentric supply chains, and neutralize China’s soft power in the world. While the state bills operate in parallel to federal legislation and regulation, in many instances, states’ activities go much further than federal efforts. States are laboratories of China-delinking. The China-related bills passed to date address a wide range of subjects from TikTok and semiconductors to educational exchange and Confucius Institutes to human rights and forced labor in Xinjiang. National security is often the justification for these laws. While the state statutes have strong symbolic aspects, they are already affecting property relationships, and raise a host of constitutional and foreign affairs questions. These issues have galvanized litigation that is currently working its way through the federal court system. The infusion of national security into property law has potentially farreaching consequences not only for Chinese citizens residing in the U.S. and for U.S.-China relations, but also for the future development of American property law. Based on a bespoke data set of 152 state bills and laws, this Article is the first attempt to make sense of these bills and laws by diagnosing their common features and analyzing their constitutional implications regarding equal protection and federal preemption. Specifically, the Article focuses on those state legislative sources regulating property broadly conceived— including land, corporate interests, and data—arguing that while there are national security threats posed by Chinese actors in the United States, the state statutes often go too far, violate the Constitution, and show U.S. property law trending towards illiberalism. States have become sites for the integration of national security into property law because of traditional state rights to regulate real property. Yet the state statutes affect immigration and other foreign affairs matters with China, thus opening the door to federal preemption. The state laws have been met with lawsuits, one of which, Shen v. Simpson, is on appeal in the Eleventh Circuit and a focus of this Article. This Article finds that the root of the issues pertaining to the