Property as National Security
Authors: Erie Matthew S. 
Published: March 2024

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 Chinarelated state statute is both epistemic and doctrinal. On the one hand, political and corporate interests promote anti-China agendas through lawmaking, and, on the other hand, these sentiments are not wholly new and in fact they benefit from enduring structures in property law, even if they have become supercharged through national security. Correcting these issues requires an approach that creates structural centralization of such foreign affairs–related matters in the federal government while balancing this centralization with state interests. Mirroring the causes of the current problem, this balanced centralization necessitates both epistemic and doctrinal reforms. First, in terms of legislation, federal preemption of state statutes that touch on foreign affairs should obtain particular salience during periods of heightened bilateral tension. At the same time, the federal government cannot sideline state government concerns. Rather, state concerns can continue to play an important role in lawmaking in regard to China. Second, regarding judicial review, courts need to fine-tune standards, for equal protection concerns, pursuant to the level of risk posed by a Chinese entity or person. Vitally, for both lawmaking and judicial review, China expertise needs to be more tightly integrated into both processes.