Commerce Clause Archives – Southern California Law Review

Property and Prejudice

April 2025April 2025Fatma Marouf* & Vanessa Casado Pérez†

“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.

INTRODUCTION

Sun Guangxin, a Chinese real estate tycoon, owns 140,000 acres of land in Val Verde County, Texas, near an Air Force base close to the border.¹ He spent approximately $110 million on real estate purchases, paying above-market prices for plots that were not on the market.² But Mr. Sun did not buy this land himself. He used a Texan intermediary, who bought the land and transferred it to Mr. Sun’s company, GH America Energy LLC, a subsidiary of the China-based Guanghui Energy Company.³ The plan was to establish a wind farm and produce renewable electricity for the Texas grid.⁴

Environmentalists opposed the wind farm, but their concerns did not gain traction until they framed the wind farm as a threat to national security due to its location.⁵ That got the attention of Senator Ted Cruz and state legislators, who began campaigning against the wind farm.⁶ This campaign became a catalyst for several bills in Texas that restricted foreign ownership of land.⁷ The bill that received the most traction prohibited real property ownership by any businesses headquartered in China, Iran, Russia, and North Korea or owned or controlled by citizens of those countries, as well as by individual citizens and government actors from those countries.⁸

Texas is not alone. In the past year, bills have been proposed in over thirty states that would restrict foreign ownership of land, real estate, and natural resources.⁹ To date, a dozen of them have been enacted into law.¹⁰ Many of these laws single out specific countries perceived to be hostile, including, but not limited to, China, Iran, Russia, and North Korea. Some bills name countries directly, while others reference various federal designations, such as federal lists of “foreign adversaries” and “countries of particular concern.”¹¹ A few bills are a bit more subtle, restricting ownership by “state-controlled enterprises,” which are most common in China,¹² or citing statutes that address only Chinese military companies.¹³

These laws fan the flames of rising anti-Chinese sentiment. Over 80% of the U.S. population currently holds an unfavorable view of China.¹⁴ Fear of China’s economic and military power,¹⁵ disapproval of China’s foreign policies and human rights abuses,¹⁶ media reports blaming China for the COVID-19 pandemic,¹⁷ and angst over espionage,¹⁸ as well as explicit or implicit biases,¹⁹ fuel these views. Of course, most Chinese investors seeking to buy property in the United States are not acting as pawns of the Chinese Communist Party. Instead, they may be families trying to move their money beyond the reach of the Chinese government, investing to ensure that their children get a good education, or hoping to establish themselves in the United States.

Despite the new context, these laws conjure up one of the darkest periods of U.S. immigration history, involving Chinese Exclusion²⁰ and an Asiatic Barred Zone that swept across a continent.²¹ The history of alien land laws is intertwined with racial exclusions from U.S. citizenship and the creation of hierarchies based on race, national origin, and alienage.²² As California’s Attorney General said in 1913 when he championed the state’s alien land law aimed at limiting the presence of Japanese immigrants: “[T]hey will not come in large numbers and long abide with us if they may not acquire land.”²³ A century ago, the U.S. Supreme Court upheld California and Washington’s alien land laws, and it has never revisited the issue.²⁴ These lingering precedents from an unabashedly racist era are now being relied on by states eager to stretch the limits of traditional state powers like regulating the transmission of property and to influence the federal domains of immigration, national security, and foreign affairs.

This new wave of alien land laws differs from prior waves in important respects.²⁵ First, the naming of specific countries and use of certain federal lists reflects a new form of national security creep. This national security slant also appears in the heightened restrictions placed on property located within a certain distance of critical infrastructure, such as military bases and weather stations. While some states have found ten miles to be a safe distance, others require fifty miles, suggesting an arbitrariness to the restrictions imposed. The new laws also seek to ferret out foreign control in more complex corporate structures than ever before. And they punish violators with harsher criminal penalties than in the past.

While the laws purport to protect national security and food security, and to prevent absentee landownership, they are poorly designed to achieve these aims. Foreign ownership of U.S. real property is minimal. Only 2.9% of privately held agricultural land²⁶ and 1.8% of residential real estate²⁷ is foreign-owned. Additionally, the major foreign owners of agricultural land are not from the countries targeted by the new state laws. While China is second only to Canada on the list of foreign countries whose citizens are buying U.S. residential properties,²⁸ their share of US land is very small. Foreigners own 31% of the land in the U.S., but Chinese investors represent only 1% of all foreign-owned land.²⁹

But even assuming there are compelling government interests at stake, the means used to achieve them are ineffective. These laws will not solve the problem of foreign interests and corporate consolidation driving the real estate and agricultural markets, as sophisticated players can easily circumvent the restrictions. For example, because most of the laws do not restrict leases, a foreign-owned business could just lease land from local landowners. The restrictions on landownership will also not increase national security in an era of cyber warfare, drones, and spy balloons. Furthermore, some of these alien land laws target only ownership and not leases. A tenant occupying a property near a military base can be as dangerous as the owner of that land, if not more. This new wave of alien land laws also fail to prevent absentee landownership because they generally exempt noncitizens residing in other U.S. states, along with all U.S. citizens and permanent residents regardless of their location. Less restrictive alternatives to some of the proposed or enacted laws could include simply limiting the amount of land that foreigners may own, requiring owners to reside or work on the land to avoid absentee ownership, or creating exceptions for residences if the main concerns are agriculture and food.

Given the poor means-end fit, the true purpose of the laws appears to be symbolic. These laws may simply be a way for politicians to capitalize on the xenophobic sentiments of their electoral base. Sadly, their nefarious social effects will extend well beyond the real estate market.³⁰ Like racist property restrictions of the past, the new laws will subordinate minorities. Excluding people from home ownership keeps them out of communities, deters immigration, impedes intergenerational transfers of wealth, and obstructs personal flourishing. Even people who are not directly affected by the new laws will suffer due to the chilling effect on the real estate market. Sellers will be hesitant, at best, to engage in transactions with anyone from a targeted country.

This Article examines potential legal challenges to the new wave of alien land laws. Part I provides historical background about prior waves of alien land laws. Part II describes the distinctive characteristics of the current wave. Part III explores possible statutory and constitutional arguments for challenging the new laws. First, Part III explores whether these laws violate the Fair Housing Act, which was enacted as part of the Civil Rights Act of 1968 and prohibits discrimination in housing based on race and national origin.³¹ Second, Part III examines whether the new laws violate the Equal Protection Clause, highlighting the underdeveloped nature of equal protection jurisprudence on alienage and national origin classifications. This Section also stresses the lack of means-end fit, which we argue should result in the laws being struck down under either strict scrutiny or rational basis review.³² Next, this Article analyzes whether the new state laws are preempted by federal immigration law, the federal foreign affairs power, or the federal regulatory framework involving the Committee on Foreign Investment in the United States (“CFIUS”).³³ Finally, this Article analyzes whether the new laws violate the Dormant Commerce Clause with respect to both domestic and foreign commerce.

Legal challenges to the new alien land laws will not be easy. A federal district court has already refused to enjoin Florida’s law, which not only restricts individuals and companies domiciled in certain countries but also singles out those domiciled in China for especially harsh treatment.³⁴ The legal questions raised by alien land laws will likely reverberate in other important contexts as well. States like Texas and Florida are increasingly looking for ways to use well-established state powers, including police and property powers, to challenge the federal government’s authority over international borders and immigration.³⁵ Alien land laws represent one, but by no means the only, way for states to do this. If no restrictions are placed on alien land laws by courts or the federal government, states could use them to create new forms of segregation, excluding immigrants from their territories by denying them a place to live. In short, these laws once again instrumentalize property for racial prejudice.

I. A BRIEF HISTORY OF ALIEN LAND LAWS

Alien land laws in the United States date back to colonial times and to the influence of the English feudal system.³⁶ English feudal laws were designed to secure allegiance to the Crown and initially prohibited aliens from purchasing land; then, the laws prohibited them from inheriting it.³⁷ England eventually abolished those restrictions by statute in 1870.³⁸ But alien land laws continued in the United States, sanctioned by common law.³⁹ Some early land laws were incorporated into state constitutions in explicitly racial terms. For example, in 1859, Oregon amended its constitution to prevent any “Chinaman” from owning property in the state and granted only “white foreigners” the same property rights as citizens, a provision that was not repealed for over one hundred years.⁴⁰

Scholars have previously categorized alien land laws into several waves.⁴¹ During the first wave, which extended from approximately 1880 to 1900, eleven states restricted alien ownership of real property in response to a depressed agricultural economy and concerns over absentee landowners.⁴² Congress also passed the Territorial Land Act of 1887, which “forbade extensive alien landholding in the organized territories, except by immigrant farmers who had applied for citizenship.”⁴³ The federal law aimed to prevent large, foreign-owned ranches from jeopardizing statehood for the territories.

The second wave of alien land laws were passed in the 1920s, as a result of resentment toward Japanese immigrants engaged in farming in California, Oregon, and Washington.⁴⁴ California’s law “was enacted and . . . enforced solely as a discriminatory law directed against the Japanese.”⁴⁵ California’s Attorney General at the time, Ulysses S. Webb, was transparent about its purpose, framing the central issue as “race undesirability.”⁴⁶ The California law carried criminal penalties and resulted in successful prosecutions;⁴⁷ it also led to severe financial losses with over 30,000 Japanese farmers abandoning “nearly 500,000 acres of California’s richest crop lands.”⁴⁸ Beyond these penalties, the law had a severe psychological impact, demoralizing and subordinating Japanese Americans.⁴⁹

Alien land laws passed at this time often excluded Japanese and other Asians by precluding noncitizens “ineligible for citizenship” from owning land.⁵⁰ As Keith Aoki observed, “ ‘aliens ineligible to citizenship’ was a disingenuous euphemism designed to disguise the fact that the targets of such laws were [Japanese].”⁵¹ Laws dating back to 1790 and 1870 excluded Asians from naturalizing.⁵² In 1922, the U.S. Supreme Court confirmed that a Japanese person could not be naturalized because he was not “white.”⁵³ The following year, the Court reached the same conclusion regarding someone from India.⁵⁴

That same year—1923—the U.S. Supreme Court upheld Washington’s and California’s alien land laws.⁵⁵ Both cases involved U.S. citizens who wanted to lease land to Japanese farmers. In Terrace v. Thompson, the Court reasoned that Washington had “wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people.”⁵⁶ The Court explained that “in the absence of any treaty provision to the contrary, [a state] has power to deny to aliens the right to own land within its borders.”⁵⁷ Similarly, in Porterfield v. Webb, the Court found California’s law limiting property rights to those “eligible to citizenship” to be constitutional.⁵⁸ Two other U.S. Supreme Court cases decided that year upheld laws restricting the transfer of shares of a landowning corporation to aliens⁵⁹ and prohibiting food crop contracts with aliens.⁶⁰

But Supreme Court decisions issued in 1948 cast doubt on whether Terrace and Porterfield remained good law. In Oyama v. California, the Court invalidated a provision of California’s alien land law that deprived a U.S. citizen of Japanese descent of agricultural land paid for by his father.⁶¹ The Court found that the state had failed to offer any compelling justification for discriminating against a citizen “based solely on his parents’ country of origin.”⁶² The Court recognized that restrictions based on ineligibility for citizenship constituted discrimination based on “racial descent.”⁶³ That same year, in Takahashi v. Fish and Game Commission, the Court declared unconstitutional a California law that allowed only U.S. citizens to get fishing licenses, which was aimed at discouraging Japanese immigrants from returning to the state after their exclusion from the West Coast and internment.⁶⁴ Justice Black, writing for the Court, explained that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”⁶⁵

In the years following Takahashi, the supreme courts of Oregon, California, and Montana invalidated those states’ alien land laws, recognizing their racist nature and finding them unconstitutional.⁶⁶ The Supreme Court of California opined that the law imposed on noncitizens “an economic status inferior to that of all other persons living in the state. ”⁶⁷ Other states decided to simply repeal their laws.⁶⁸ The Immigration and Nationality Act of 1952, which made naturalization race-neutral, rendered meaningless any remaining state laws that still tied property ownership to eligibility for citizenship.⁶⁹ But various other types of alien land laws remained. For example, in 1943, Wyoming had enacted an alien land law that prohibited Japanese Americans who had been in internment camps from buying land in the state, which was not repealed until 2001.⁷⁰

During the Cold War, a third wave of state laws emerged limiting the rights of foreigners to receive land by inheritance.⁷¹ The purpose of these laws was to keep U.S. wealth from communist regimes rather than to prevent noncitizens from owning land.⁷² This practice ended after the U.S. Supreme Court’s 1968 decision in Zschernig v. Miller, which invalidated an Oregon statute that conditioned a noncitizen’s inheritance right on reciprocal rights being granted to U.S. citizens.⁷³ The Court found that the Oregon law was preempted because it intruded on the federal government’s authority over foreign affairs.

A fourth wave of alien land laws occurred during the 1970s in response to media reports of increased foreign investment in U.S. farmland.⁷⁴ These laws generally restricted the type and amount of land that noncitizens could purchase. Media reports stoked fears that family farmers in the U.S. were threatened by foreign investment.⁷⁵ In 1972, the Wisconsin Supreme Court upheld an alien land law with “no racial implications” that restricted only the amount of land that could be owned by foreign investors, finding the law “sufficiently related to the state’s asserted desire to limit possibly detrimental absentee land ownership.”⁷⁶

The current wave of land laws has much in common with these prior waves. Anti-immigrant biases, xenophobia, and fears regarding the fate of family farmers all appear to be playing a role. But as discussed below, the new bills and law also have their own distinct characteristics.

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

The fifth wave of alien land laws began around 2020 and rapidly gained momentum. In 2022 and 2023, dozens of bills were proposed across the country restricting the ownership of real property by individual noncitizens, foreign companies, and foreign governments.⁷⁷ To date, twelve of those bills have been enacted into law in Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Montana, North Dakota, Oklahoma, Tennessee, Utah, and Virginia. These laws, like their predecessors, vary widely, both in terms of whom they restrict and what is restricted.

Some of the newly enacted laws focus on foreign governments and businesses rather than individuals.⁷⁸ Among the laws that apply to individual noncitizens, most restrict only “non-resident aliens,” while exempting “resident aliens.” Residence in this context generally refers to domicile in the United States,⁷⁹ but a couple of laws define a “resident alien” to mean a noncitizen who lives in the state.⁸⁰ Some of the laws require “resident aliens” to dispose of their real property within a certain amount of time if they no longer qualify as residents of the state.⁸¹

Other laws turn on immigration status rather than residence. For example, Louisiana’s law exempts anyone “lawfully present” in the U.S.⁸² Tennessee’s definition of a “sanctioned nonresident alien” explicitly excludes legal permanent residents.⁸³ North Dakota, like Minnesota, exempts not only legal permanent residents but also noncitizens who enter with certain types of temporary investor or trader visas that are available only to citizens of specific countries that have special treaties with the United States.⁸⁴

Like prior waves, many of the new laws place restrictions specifically on agricultural land and other natural resources.⁸⁵ Some are even more specific. Indiana, for example, has prohibited foreign business entities from owning agricultural land for the purpose of crop farming or timber production.⁸⁶ However, there are also novel types of restrictions. Notably, many of the new laws restrict ownership of land within a certain distance of a military installation or other “critical infrastructure.”⁸⁷ Other bills and laws apply broadly to any type of land or real property.⁸⁸

The following Sections take a closer look at some of the distinct characteristics of the new wave of alien land laws and proposed bills. These include singling out specific countries or nationalities by name, focusing on foreign adversaries, prohibiting landownership within a certain distance of military installations or critical infrastructure, focusing on agricultural land, imposing more severe penalties for violations, and targeting all types of foreign control in complex corporate structures.

A. Singling Out Specific Countries

Bills proposed in at least a dozen states (including Alabama, Arkansas, Colorado, Iowa, Florida, Georgia, Maryland, Mississippi, South Carolina, Texas, West Virginia, and Wyoming) singled out specific countries for property restrictions.

For example, Alabama enacted a law that defines a “foreign country of concern” as “China, Iran, North Korea, and Russia.”⁸⁹ Bills considered in Arkansas,⁹⁰ Georgia,⁹¹ and Texas⁹² similarly placed restrictions on citizens of these four countries. In Colorado, West Virginia, and Wyoming, proposed bills placed restrictions on citizens of China, Russia, or any country designated as a “state sponsor of terrorism.”⁹³

Florida enacted an alien land law that defined a “foreign country of concern” to mean China, Iran, North Korea, Russia, Cuba, the Venezuelan regime of Nicolás Maduro, and Syria.⁹⁴ Florida’s law is harshest, however, on citizens of China, placing more severe restrictions on them and subjecting them to stiffer penalties for violating the law.⁹⁵ A bill proposed in Arizona included the same seven countries on Florida’s list plus Saudi Arabia.⁹⁶ The Arizona bill emerged after a Saudi Arabian company made headlines for leasing Arizona public lands and pumping exorbitant amounts of groundwater to grow alfalfa for export to Saudi Arabia.⁹⁷

Many other bills singled out China alone, including bills proposed in Iowa,⁹⁸ Maryland,⁹⁹ Mississippi,¹⁰⁰ South Carolina,¹⁰¹ and Washington.¹⁰² Two Arizona bills,¹⁰³ as well as a bill proposed in Hawaii,¹⁰⁴ refer specifically to the Chinese Communist Party and its members. A Utah bill indirectly references Chinese companies by defining a “restricted foreign entity” as a company that the Secretary of Defense is required to report as a military company, which includes only Chinese military companies.¹⁰⁵ The intense focus on China across so many of these bills and laws is reminiscent of the anti-Asian sentiment that fueled alien land laws long ago. Alien land laws singling out specific countries are less likely to pass constitutional muster than more evenhanded laws.¹⁰⁶

B. Targeting Foreign Adversaries

Prior to the most recent wave, only five states had alien land laws that restricted land ownership by citizens of foreign adversaries.¹⁰⁷ None of those laws explicitly referred to foreign adversaries, much less attempted to name them. Instead, they benignly extended equal property rights to “alien friends” (New Jersey),¹⁰⁸ “[a]liens who are subjects of governments at peace with the United States and this state” (Georgia),¹⁰⁹ or any alien who is “not an enemy” (Kentucky, Maryland, and Virginia).¹¹⁰

In 2023, however, numerous state legislatures considered or passed laws restricting property ownership rights of citizens and companies of countries designated by the federal government as hostile to the U.S. or its values in some way. These bills and laws use various federal lists that were created for completely different purposes.

Laws enacted in Louisiana,¹¹¹ North Carolina,¹¹² and Virginia,¹¹³ as well as bills proposed in Kansas,¹¹⁴ Montana,¹¹⁵ Ohio,¹¹⁶ South Carolina,¹¹⁷ and Wisconsin,¹¹⁸ refer to the Secretary of Commerce’s designation of certain countries as “foreign adversaries” in the Code of Federal Regulations.¹¹⁹ This designation is based on the Secretary’s determination that a foreign government or foreign nongovernment person has “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”¹²⁰ Currently, this designation applies to six countries: China (including Hong Kong), Cuba, Iran, North Korea, Russia, and “Venezuelan politician Nicolás Maduro (Maduro Regime).”¹²¹

The Ohio bill and Louisiana law restrict not only “foreign adversaries” as defined by Secretary of Commerce but also the much longer list of foreign governments sanctioned by the Office of Foreign Assets Control (“OFAC”), which adds Afghanistan, Belarus, Burma, Central African Republic, Democratic Republic of Congo, Ethiopia, Iraq, Lebanon, Libya, Mali, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen, and Zimbabwe.¹²² A law enacted in Tennessee, on the other hand, refers to citizens of foreign governments sanctioned by OFAC but does not include “foreign adversaries” designated by the Secretary of Commerce.¹²³

Other bills and laws refer to various U.S. State Department designations. For example, a bill proposed in New York¹²⁴ refers to a “foreign country of particular concern,” which currently includes twelve countries designated by the State Department: Burma, China, Cuba, Eritrea, Iran, North Korea, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan. Bills proposed in Colorado, West Virginia, and Wyoming reference a completely different U.S. State Department designation—“state sponsors of terrorism”—a list that currently includes only four countries: Cuba, Iran, North Korea, and Syria.¹²⁵

States have also incorporated other federal definitions into their bills and laws. For example, the law passed in Arkansas references not only foreign countries of “particular concern” but also includes citizens or residents of countries subject to the International Traffic in Arms Regulations.¹²⁶ Meanwhile, a bill proposed in Texas referred to countries identified by the United States Director of National Intelligence as posing a risk to the national security of the United States in each of the three most recent Annual Threat Assessments of the U.S. Intelligence Community.¹²⁷ At least one law, enacted in Indiana, does not refer to federal definitions at all and instead allows the governor to designate certain countries as a threat to critical infrastructure.¹²⁸

A few of the proposed bills simply make vague references to “hostile” countries without providing a clear definition of the term. For instance, a Mississippi bill restricts ownership by “citizens of a country that is hostile to the interests of the United States or a country that is a known violator of human rights,” without explaining how such countries should be identified.¹²⁹ Similarly, a Hawaii bill that restricts land ownership by members of the Chinese Communist Party also refers to “other hostile foreign influence,” providing only a vague definition of this term.¹³⁰

C. Proximity to Military Installations and Critical Infrastructure

Additionally, many of the recent bills and laws limit landownership near military installations or other critical infrastructure. Considerable variation exists among the bills regarding what types of facilities are included under these terms as well as what constitutes an acceptable distance from them.

For example, a bill proposed in California prohibits foreign actors from owning or leasing land within fifty miles of a U.S. military base or California National Guard Base.¹³¹ A bill proposed in Louisiana restricts foreign ownership of “immovable property located within [fifty] miles of any federal or state military land, . . . weather station[], . . . or any facility operated by the Civil Air Patrol.”¹³² A bill proposed in Mississippi prohibits nonresident aliens from owning land within fifty miles of a military installation under the jurisdiction of the Department of Defense, the U.S. Coast Guard, or the Mississippi National Guard.¹³³ A South Carolina bill prohibits companies owned by China or the Chinese Communist Party, or whose principal place of business is in China, from controlling any land or real estate “within fifty miles of a state or federal military base or installation for the purpose of installing or erecting any type of telecommunications or broadcasting tower.”¹³⁴

Bills proposed elsewhere specify shorter distances from military installations. For example, a Georgia bill prohibits nonresident aliens from possessing any land within twenty-five miles of any military base, military installation, or military airport.¹³⁵ A North Carolina bill prohibits adversarial foreign governments from purchasing or holding land within twenty-five miles of a military base or airport.¹³⁶ The law enacted in Florida generally prohibits foreign land ownership within ten miles of a military installation or critical infrastructure facility.¹³⁷ Florida’s choice of ten miles is particularly interesting given that the legislative history indicates that a major concern was a Chinese company’s purchase of land located twelve miles from an air force base in North Dakota.¹³⁸ Meanwhile, a bill proposed in Hawaii considered just two miles from federal land or critical infrastructure to be a safe distance.¹³⁹

D. Harsh Penalties

Criminal penalties and prosecutions for violations of alien land laws are not new. In California and Arizona, such criminal prosecutions were common during the 1920s and 1930s, but those laws were subsequently repealed.¹⁴⁰ Penalties for violating a state’s alien land laws have generally been civil. Forfeiture of the property or sale at auction with proceeds escheating to the state were commonly specified as penalties in state laws. Under some laws, such as Wisconsin’s, a civil fine could be imposed, ranging from $500 to $5,000.¹⁴¹ Criminal penalties existed but were rare.¹⁴²

In the most recent wave of bills, criminal penalties have gained popularity, and civil fines are steeper. Additionally, some of the new bills and laws impose penalties on the sellers as well as the buyers. For example, the alien land law enacted in Arkansas makes a violation a felony punishable by two years in jail and a $15,000 fine.¹⁴³ Being a “resident alien” is mentioned as an “affirmative defense” to the charge.¹⁴⁴ Florida has also made it a criminal offense to violate its new law, which imposes harsher criminal consequences on Chinese purchasers of land than purchasers of other nationalities.¹⁴⁵ Violators who are domiciled in China may be charged with a third-degree felony, punishable by up to five years in jail and a $5,000 fine, while violators domiciled in the other countries named in Florida’s law may be charged with only a second-degree misdemeanor, punishable by sixty days in jail and a $500 fine.¹⁴⁶ This disparity extends to sellers. Selling real property to individuals or companies domiciled in China is a first-degree misdemeanor, punishable by one year in prison and a $1,000 fine, while selling property to individuals or companies domiciled in other countries is only a second-degree misdemeanor.¹⁴⁷

E. Targeting Corporations

Finally, the current wave of alien land laws targets all forms of foreign control in complex corporate structures. The laws restrict not only foreign corporations but also companies incorporated in the U.S. if they are controlled by noncitizens who would not be allowed to purchase the real estate themselves. The expansive language used in some of these laws reflects an attempt to close the loopholes in previous laws that allowed foreigners to acquire land simply by channeling their investments through the veil of a U.S. corporation. This was one of the main drivers behind the recent alien land law passed in Oklahoma, which specified that “[n]o alien or any person who is not a citizen of the United States shall acquire title to or own land in this state either directly or indirectly through a business entity or trust.” ¹⁴⁸

Similarly, a Tennessee bill defined a “foreign business” as “a corporation incorporated under the laws of a foreign country, or a business entity whether or not incorporated, in which a majority interest is owned directly or indirectly by nonresident aliens.”¹⁴⁹ The bill further explained, “Legal entities, including, but not limited to, trusts, holding companies, multiple corporations, and other business arrangements, do not affect the determination of ownership or control of a foreign business.”¹⁵⁰ But this bill still has a major loophole—its definition of a foreign business is limited to owning a majority interest and does not address control. Nonresident aliens could control a corporation based on voting power, even if they do not own a majority of the stock.¹⁵¹

Many other bills closed that loophole. A Washington bill, for example, prohibited acquisition of agricultural land by a foreign-controlled enterprise and defined a controlling interest to mean “possession of more than [fifty] percent of the ownership interests in an entity, or an ownership interest of [fifty] percent or less if the persons holding such interest actually direct the business and affairs of the entity without the consent of any other party.”¹⁵² A law enacted in North Dakota adopts a nearly identical definition.¹⁵³

While the definitions in the new bills and laws vary and are not perfect, they clearly seek to capture all kinds of businesses in which noncitizens play a decisive role. Of course, if a corporation is forty-nine percent owned by U.S. citizens and fifty-one percent owned by noncitizens, the U.S. citizen owners are also likely to suffer financial setbacks as a result of such laws.

III. ARE ALIEN LAND LAWS LEGAL?

Commentators have taken different perspectives on the legality of alien land laws in the past.¹⁵⁴ Some have argued that alien land laws would violate the Equal Protection Clause if they singled out specific countries.¹⁵⁵ Others contend that only restrictions on lawful permanent residents would raise equal protection concerns, and even those may be permissible.¹⁵⁶ Preemption concerns and Dormant Commerce Clause concerns have also been raised.¹⁵⁷ Because of significant variations among the laws, it is difficult to analyze these legal issues for the laws as a whole. Nevertheless, this Part attempts to parse some of the legal challenges that the new wave of alien land laws may face.

A. Statutory Violations

Alien land laws may conflict with federal statutes that prohibit discrimination such as the Fair Housing Act (“FHA”)¹⁵⁸ and the Civil Rights Acts of 1866¹⁵⁹ and 1870.¹⁶⁰

1. The Fair Housing Act

The FHA, enacted as part of the Civil Rights Act of 1968, seeks to prohibit unlawful discrimination by landlords. Under the FHA, it is discriminatory “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”¹⁶¹ Although alienage is not specifically mentioned, the U.S. Department of Housing and Urban Development (“HUD”) has stated that “[a] requirement involving citizenship or immigration status will violate the [FHA] when it has the purpose or [unjustified] effect of discriminating on the basis of national origin.”¹⁶² Private parties would be violating the FHA if they comply with state laws that restrict who can buy or lease real estate based on national origin. States may enhance the protections of the FHA but cannot reduce them. Section 816 of the FHA declares invalid any state law that requires or permits any action that would be a discriminatory housing practice under the FHA.¹⁶³

One aspect of the FHA that makes the inquiry different from an equal protection claim is that claimants do not need to prove discriminatory intent. A facially neutral law may violate the FHA if it has “discriminatory effects.”¹⁶⁴ This is useful in challenging a law like Florida’s, which may be perceived as discriminating based on domicile rather than national origin. By prohibiting sales of real estate to individuals and companies domiciled in China, Florida’s law clearly has discriminatory effects related to national origin: China has over one billion inhabitants, of whom only .05% are not Chinese.¹⁶⁵ Similarly, other countries identified as “foreign adversaries” under Florida’s law have a very small percentage of foreigners. Less than 0.1% of Cuba’s population are immigrants, for instance.¹⁶⁶

A law that has a discriminatory effect on a protected class is unlawful if it is not necessary to achieve a substantial, legitimate, nondiscriminatory interest, or if a less discriminatory alternative could serve that interest.¹⁶⁷ As discussed further under equal protection below, alien land laws are not necessary to achieve the asserted interests, and less discriminatory alternatives are, in fact, available.

An important limitation of the FHA, however, is that it only applies to “dwellings,” that is, to real estate capable of being used as a residence.¹⁶⁸ Thus, while broadly written alien land laws that restrict real estate (or real property in general) remain vulnerable to FHA challenges,¹⁶⁹ those that restrict only agricultural land cannot be challenged under the Fair Housing Act.¹⁷⁰ The Civil Rights Acts of 1866 and 1870 may help fill this gap, although, as explained below, these laws have their own limitations.

2. Civil Rights Acts of 1866 and 1870

The Civil Rights Act of 1866 provided that “citizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens.”¹⁷¹ The Civil Rights Act of 1870 made a significant revision by changing “citizens” to “persons.”¹⁷² This language is now codified in 42 U.S.C. § 1981 (“section 1981”). The revised language made it clear that noncitizens, as well as citizens, are protected by the law’s equality mandate.¹⁷³ Courts have also construed section 1981 as prohibiting discrimination based on alienage.¹⁷⁴ Alien land laws may therefore run afoul of section 1981.¹⁷⁵

One limitation of section 1981 is that it applies only to individuals “within the jurisdiction of the United States.” While this phrase includes noncitizens in the United States,¹⁷⁶ it would likely exclude noncitizens residing abroad, the group most affected by alien land laws. Corporations headquartered abroad that are “foreign adversaries” under Montana’s law therefore may not be able to bring challenges under section 1981, although if they have U.S.-based subsidiaries, such challenges may still be possible. Other states, like Indiana, have broad definitions of “qualified entities.”¹⁷⁷ Many alien land laws tackle corporations controlled by foreigners. Any qualified entities based in the U.S. should be able to bring section 1981 challenges, even if they are owned or controlled by citizens of Iran, North Korea, or China.

Another potential limitation of section 1981 is that a separate provision of the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982 (“section 1982”), specifically addresses property and extends equal protection only to U.S. citizens.¹⁷⁸ Specifically, section 1982 provides: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”¹⁷⁹ That language was not altered by the Civil Rights Act of 1870. Courts could therefore interpret section 1982 as a limited exception to section 1981’s more general rule about contracts, excluding contracts pertaining to property from the alienage equality principle found in section 1981.

Even under this interpretation, however, section 1981 is still relevant, since some of the recently enacted laws not only prohibit buying and selling real property, but also prohibit forming other types of contracts. For example, Indiana’s, Montana’s, and Texas’s new alien land laws prohibit certain foreign entities from countries like China from entering into agreements regarding critical infrastructure (energy grid, water treatment plants, and so on).¹⁸⁰

Additionally, one could argue that section 1982 prohibits the restrictions that alien land laws place on U.S. citizen sellers and landlords, as well as U.S. citizen-owned or controlled realty and title companies. From the perspective of U.S. citizens who want to sell properties, the restrictions imposed by states are restraints on alienation.¹⁸¹ The laws shrink their market, and if the claims about Chinese investors flooding the market and paying exorbitant prices are true,¹⁸² then real estate owners and companies who cater to this population will lose a profitable share of potential buyers. One complication with this argument is that U.S. citizen sellers are not necessarily being treated differently from other “white citizens” under the language of section 1982. For the argument to work, the focus would likely have to be on non-white U.S. citizen sellers, for example, U.S. citizen sellers of Chinese descent whose clientele potentially include a substantial number of Chinese citizens or companies domiciled in China. These U.S. citizen sellers of Chinese descent could argue that they are being deprived of the same opportunities to sell real property that are enjoyed by white citizens who do not have clientele in China.

Another possible legal hurdle is that a disparate impact claim under section 1981 or section 1982 requires showing that the disparate impact is traceable to a discriminatory purpose.¹⁸³ This is more limiting than a disparate impact claim under the FHA. Nevertheless, the legislative history and rhetoric surrounding the passage of some of the laws may help demonstrate a discriminatory purpose. State legislators and executive officials discussing alien land laws have used inflammatory rhetoric coated with national security concerns. Feeding on the anti-Asian sentiment fueled by dubious theories about the origin of COVID-19 and compounded by economic fears concerning China’s influence, their statements are reminiscent of the language used in the era of the “Yellow Peril.”¹⁸⁴ Although alien land laws may seem somewhat removed from the original purpose of the Civil Rights Acts, which was to prevent discrimination against African Americans in the wake of the Civil War, the rhetoric surrounding these laws reflects a form of racial discrimination.

B. Equal Protection Concerns

The Equal Protection Clause applies to all persons within the United States, including all noncitizens.¹⁸⁵ But noncitizens abroad generally are not regarded as having a right to equal protection,¹⁸⁶ although open questions about extraterritorial rights certainly remain.¹⁸⁷ This may be a threshold hurdle for bringing an equal protection challenge, since many of the alien land laws apply only to “nonresident aliens” and define “resident aliens” as noncitizens living anywhere in the U.S.¹⁸⁸ If an alien land law restricts only foreigners abroad, an equal protection challenge would likely need to be brought by the individuals and companies based in the U.S. that are prohibited from selling or leasing real property to foreigners abroad.¹⁸⁹

Another major challenge in bringing an equal protection claim will be the century-old Supreme Court precedents in Terrace and Porterfield upholding alien land laws, which have never been overruled.¹⁹⁰ Of course, in the 1920s, equal protection jurisprudence was quite different than it is today. Segregation, Jim Crow, and racially restrictive covenants were all legal.¹⁹¹ Levels of judicial scrutiny were not introduced until 1938, in the famous footnote four of United States v. Carolene Products, in which Justice Stone mentioned certain circumstances that may call for a “more searching judicial inquiry,” including cases involving “prejudice against discrete and insular minorities.”¹⁹²

In 1948, when the Supreme Court applied this type of searching judicial inquiry in Oyama, it invalidated as racially discriminatory a part of California’s alien land law that deprived U.S. citizens of Japanese descent of property rights.¹⁹³ But the Court stopped short of invalidating the law altogether.¹⁹⁴ That same year, in Takahashi, when the Court struck down a California law that prohibited those “ineligible for citizenship” from obtaining fishing licenses, it rejected California’s reliance on the Terrace and Porterfield cases, finding them not controlling even “[a]ssuming the[ir] continued validity.”¹⁹⁵

The modern strict scrutiny test did not emerge until the 1960s.¹⁹⁶ And it was not until 1971 that the Supreme Court applied strict scrutiny to alienage classifications.¹⁹⁷ In a watershed decision, Graham v. Richardson, the Court found that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.”¹⁹⁸ Applying this new, rigorous standard of review, the Court struck down Arizona and Pennsylvania statutes that favored citizens over noncitizens in welfare benefits.¹⁹⁹ Richardson rejected the states’ argument that the restrictions were justified by “a State’s ‘special public interest’ in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits.”²⁰⁰ The Court also flatly rejected “fiscal integrity” as a compelling justification, stating that “aliens lawfully within this country have a right to enter and abide in any State in the Union ‘on an equality of legal privileges with all citizens under non-discriminatory laws.’ ”²⁰¹

The Supreme Court continued to apply strict scrutiny to strike down state laws that discriminated against noncitizens in employment. The Court invalidated a New York law that permitted only U.S. citizens to be eligible for state employment,²⁰² a Connecticut law that permitted only U.S. citizens to become lawyers,²⁰³ and a Texas law that permitted only U.S. citizens to be notary publics.²⁰⁴

However, the Court has also recognized an exception to strict scrutiny in cases where alienage classifications are related to a state’s political function.²⁰⁵ In Bernal v. Fainter, the Court described this as a “narrow exception” that “applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”²⁰⁶ Under the political function exception, the Court has applied rational basis review to uphold laws that require police officers,²⁰⁷ probation officers,²⁰⁸ and public school teachers²⁰⁹ to be U.S. citizens.

If strict scrutiny applies to an alien land law, then the law must be narrowly tailored to a compelling government interest, a test that is generally difficult to pass. If rational basis applies, the law must merely be related to a legitimate government interest. Determining which level of scrutiny applies is therefore a critical threshold question in assessing the likelihood of prevailing with an equal protection claim.

1. Does Strict Scrutiny Apply?

There are at least three important legal questions that must be answered in order to determine if alien land laws are subject to strict scrutiny. First, do all alienage classifications receive strict scrutiny or only those affecting lawful permanent residents? Second, does the “political function” exception to strict scrutiny for alienage classifications apply to alien land laws? Third, do restrictions that turn on being domiciled (or headquartered, for a corporation) in particular countries discriminate based on national origin?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

The Supreme Court’s decision in Richardson broadly stated that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority” and that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”²¹⁰ This language does not distinguish between legal permanent residents and other noncitizens. Subsequently, in Nyquist v. Mauclet, the Supreme Court also applied strict scrutiny in striking down a New York statute that barred a heterogeneous group of noncitizens (not just permanent residents) from state financial aid for higher education, stressing that “[t]he important points are that [the statute] is directed at aliens and that only aliens are harmed by it.”²¹¹

While the Court has never limited the application of strict scrutiny to lawful permanent residents, its use of the term “resident aliens” has created confusion. The term “resident alien” can easily be misconstrued as shorthand for a permanent resident, although it simply refers to an alien residing in the United States.²¹² Asylum applicants, refugees, and noncitizens with a variety of temporary visas, among others, are permitted to reside in the United States, even though they are not lawful permanent residents.

In Toll v. Moreno, the Supreme Court had an opportunity to clarify what level of scrutiny applies to classifications involving temporary immigrants (technically called “nonimmigrants”) when evaluating a University of Maryland policy that prohibited individuals with G-4 visas from receiving in-state tuition.²¹³ But the Court ultimately found that the university policy was preempted and declined to address the equal protection claim.²¹⁴ A circuit split has since emerged regarding what level of scrutiny applies to state classifications involving temporary immigrants.

The Fifth Circuit has held that temporary immigrants are not a suspect class, applying rational basis review in upholding Louisiana laws that prohibit temporary immigrants from taking the bar exam²¹⁵ and obtaining a nursing license.²¹⁶ In explaining why classifications affecting temporary immigrants receive rational basis review, the Fifth Circuit stressed the ways that temporary immigrants are different from permanent residents, noting that “nonimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.”²¹⁷ The Sixth Circuit followed the Fifth Circuit’s rationale, applying rational basis review in upholding a Tennessee statute that conditions issuance of a driver’s license on being a U.S. citizen or permanent resident.²¹⁸

The Second Circuit, on the other hand, has held that temporary immigrants are a suspect class and applied strict scrutiny in striking down a New York statute that prohibited them from a obtaining a pharmacist’s license.²¹⁹ The court refused to create an exception to strict scrutiny for temporary immigrants that the Supreme Court never recognized.²²⁰ Additionally, the court reasoned that the factual similarities between U.S. citizens and permanent residents recognized in Richardson were never intended to be a test for triggering strict scrutiny.²²¹ The court correctly recognized that Richardson’s recognition of aliens as a “discrete and insular minority” was premised on their minority status within the community, not their similarity to citizens.

The only class of noncitizens that the Supreme Court has ever treated differently in terms of the level of scrutiny that applies are undocumented individuals. But even in Plyler v. Doe, in which the Court refused to recognize undocumented children as a suspect class, the Court struck down the Texas statute that denied them a basic education.²²² There, the Court applied a form of intermediate scrutiny by requiring Texas to show that it had a “substantial” interest in excluding undocumented children from public schools.²²³ This heightened scrutiny may have been unique to a case that stressed the importance of education and the innocence of children.²²⁴ Still, if undocumented children received heightened scrutiny, it is difficult to argue that lawfully present noncitizens should receive rational basis review simply because they are not permanent residents.²²⁵

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

Courts have not yet addressed whether state alien land laws fall under the “political functions” exception to strict scrutiny. If the exception applies, a state’s alienage classifications would receive only rational basis review. In Shen v. Simpson, the case challenging Florida’s 2023 alien land law, Florida argued that the political function exception applies, triggering only rational basis review.²²⁶ Thus far, however, the Supreme Court has only applied the political functions exception to certain state jobs.

The Supreme Court set forth a two-part test for determining “whether a restriction based on alienage fits within the narrow political-function exception.”²²⁷ First, a court examines the specificity of the classification: “[A] classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends.”²²⁸ As explained further below in the application of the strict scrutiny test, alien land laws are substantially over- and under-inclusive. That alone undercuts the relevance of the political function exception.

Additionally, the second part of the test provides that:

[E]ven if the classification is sufficiently tailored, it may be applied in the particular case only to “persons holding state elective or important nonelective executive, legislative, and judicial positions,” those officers who “participate directly in the formulation, execution, or review of broad public policy” and hence “perform functions that go to the heart of representative government.”²²⁹

The plain language of the second prong indicates that the exception applies only to certain public positions. Owning real property is not a public position. Nor does being a property owner require any involvement in the formulation, execution, or review of public policies. Restricting property ownership is different from “limit[ing] the right to govern to those who are full-fledged members of the political community.”²³⁰

One way to view the issue is to consider whether real property ownership is more closely related to Supreme Court cases protecting noncitizens’ rights to equal economic opportunity,²³¹ or to cases that allow states to limit certain public positions to U.S. citizens.²³² Land is often connected to economic opportunity—agricultural land provides a livelihood through farming and raising livestock; commercial property supports businesses that provide livelihoods; and even residential property is often necessary to work in an area. In fact, in cases striking down state laws that discriminated against noncitizens in employment, the Supreme Court has connected the right to work to the right to “entrance and abode,” stating “they cannot live where they cannot work.”²³³

Furthermore, real property ownership has little in common with the public positions that have fallen under the exception to strict scrutiny. Landowners are not “clothed with authority to exercise an almost infinite variety of discretionary powers,”²³⁴ they do not fulfill “a basic governmental obligation,”²³⁵ and they are not “in a position of direct authority over other individuals.”²³⁶ Under this analysis, if any type of restriction on real property qualifies for the political functions exception, it would only be ownership of state land.

However, if the political functions exception is more broadly construed as encompassing “the process of democratic self-determination” and “the community’s process of political self-definition,” courts may consider land ownership to be relevant.²³⁷ Land can be seen as providing “the basis for political organization.”²³⁸ States’ historical restrictions on foreign land ownership, going back centuries, could also be viewed as reflecting an understanding that such restrictions are somehow inherent to state sovereignty and self-determination.

But choosing who gets to live in a state has not traditionally been part of a state’s right to self-definition. Due to the constitutional right to migrate, the Supreme Court has stressed that “[s]tates . . . do not have any right to select their citizens.”²³⁹ A state law aimed at deterring a particular class of people from migrating to the state is impermissible whether that class consists of welfare applicants, as in Richardson, Japanese immigrants, as in Takahashi, or other noncitizens. Similarly, the Supreme Court has found that a “[s]tate’s objective of reducing population turnover” would “encounter[] insurmountable constitutional difficulties.”²⁴⁰ The political functions exception allows a state to “limit the right to govern to those who are full-fledged members of the political community,”²⁴¹ but it has never allowed a state to limit who lives in the community.

In short, the political functions exception should not apply to alien land laws, and strict scrutiny would be the proper standard of review for their alienage classification.

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

National origin discrimination is distinct from discrimination based on alienage. While alienage discrimination refers to distinctions between citizens and noncitizens,²⁴² national origin discrimination is broadly understood to include discrimination based on an individual’s place of origin, or their ancestors’ place of origin.²⁴³ Laws that place restrictions on citizens or corporations of specific countries ought to trigger strict scrutiny based on national origin.

States may argue, however, that their laws do not discriminate based on national origin but instead draw distinctions based on place of “residence” or “domicile.” For example, Florida’s law restricts only noncitizens who are “domiciled” in certain foreign countries, rather than restricting citizens of those countries outright.²⁴⁴ A federal district court found that the Florida law does not discriminate based on Chinese national origin because Chinese individuals domiciled in the United States are not restricted; only individuals domiciled in China are restricted, and they need not be Chinese.²⁴⁵ Similarly, Montana’s law applies to corporations that are “domiciled or headquartered” in a country identified as a “foreign adversary.”²⁴⁶

A law like Florida’s would clearly have a disparate impact on individuals of Chinese national origin, since over 99% of people living in China are Chinese. But equal protection principles require a showing of intentional discrimination; classifications that merely result in a disparate impact are not subject to strict scrutiny.²⁴⁷ In Village of Arlington Heights v. Metropolitan Housing Development Corp., however, the Court found that discriminatory intent could be evidenced by factors that include “disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers.”²⁴⁸ These factors must be assessed cumulatively.²⁴⁹ In Shen, the Florida case, the clearly disproportionate impact on Chinese individuals, along with the legislative history, would support a finding of discriminatory intent under Arlington Heights.

Because the Arlington Heights factors are non-exhaustive, some appellate courts have mentioned other considerations. For example, a “consistent pattern” of actions of decisionmakers that have a much greater harm on minorities than on non-minorities could help establish discriminatory intent.²⁵⁰ In a state like Florida or Texas, where the governors have taken numerous actions to try to prevent immigrants from coming to the state, this may be a relevant consideration.²⁵¹ Courts have also found that applying different, less favorable processes or substantive standards to requests by members of a suspect class may raise an inference of discriminatory intent. Some alien land laws impose special procedures for buyers from certain countries, such as requiring buyers to sign affidavits attesting that they are not principals of China and to register existing properties with the state.²⁵² These types of procedures could further help establish discriminatory intent.²⁵³

2. Analyzing Alien Land Laws Under Strict Scrutiny

In order to survive strict scrutiny, a law must be narrowly tailored to serve a compelling government interest. When strict scrutiny is applied, the government “must show that it cannot achieve its objective through any less discriminatory alternative.”²⁵⁴ The main reasons offered for the new wave of alien land laws are national security, food security, and preventing absentee landownership. As explained below, even assuming these are all compelling government interests, alien land laws are unlikely to survive strict scrutiny because they are not narrowly tailored to achieve these objectives. There are also less restrictive alternatives available.

i. National Security

In explaining the need for Alabama’s newly enacted alien land law, Governor Ivey said, “Across the United States, we have seen alarming instances of foreign entities purchasing large tracts of land, which could have severe consequences for our country’s national defense and economy, if no action is taken.” ²⁵⁵ As discussed above, many of the proposed and enacted laws forbid foreign ownership of land within a certain distance of military installations or critical infrastructure. Such restrictions are highly unlikely to prevent espionage or other national security attacks. The Chinese balloon that hovered over Montana did not need to be launched from land near a military base.²⁵⁶ Neither do drones or cyberattacks gathering U.S. data.²⁵⁷

Furthermore, the “safe” distances from military installations or critical infrastructure are arbitrary in this new wave of alien land laws. As noted above, these distances range from two to fifty miles. The best illustration of this arbitrariness is Florida’s law, which bans ownership by “foreign principals” within ten miles of military installations even though the legislation was triggered by a Chinese company’s purchase of land twelve miles from a military based in North Dakota.²⁵⁸

Nationality-based restrictions on ownership of real property are also easily circumvented. Straw men can be used to purchase the land. A Chinese tycoon can easily have someone purchase it for him, as Mr. Sun did in Texas.²⁵⁹ As commentators have previously noted, alien land laws do not really pose an impediment to acquiring real property.²⁶⁰

A less restrictive alternative would be for states to establish or expand existing reporting requirements for foreign investment in land. Several states have already implemented reporting requirements for foreign investments in agricultural land.²⁶¹ Extending the reporting requirements to all real estate and subjecting those transactions to a review process to identify risky transactions would be less restrictive and potentially more effective than a blanket ban. Once the state has information about a potential transaction, it can decide if the transaction can go forward or if it involves too many risks from a national security perspective. This process imposes less of a restriction on individuals who want to sell their land and is less likely to be perceived as aggressive by foreign countries. It is an approach similar to the one used at the federal level by the Committee on Foreign Investment in the United States (“CFIUS”). However, this approach, like the current one banning transactions, may be preempted by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”).²⁶² Another way to discourage transactions involving noncitizens abroad is taxation. A tax would increase the cost of real estate transactions, ensuring that only those bringing a large benefit move forward. Taxation, though, could violate the Dormant Foreign Commerce Clause.²⁶³

In short, banning land ownership within certain distances of military installations or critical infrastructure is not going to bring large gains in national security. It will, however, impose significant costs by barring potential good faith purchasers from accessing land, introducing tensions in the United States’ relationship with certain countries, and perpetuating negative sentiments towards people from countries like China.

ii. Food Security

The idea of food security has had a central role in farmland regulation for a long time.²⁶⁴ There is a fear that foreign companies will control U.S. food production and either let Americans suffer if certain products are unavailable or make them pay a higher cost by importing them. The fear is not new: for decades, foreign owners of agricultural land have been required to report to the U.S. Department of Agriculture.²⁶⁵

But this fear is misplaced. The United States has a surplus of agricultural products.²⁶⁶ Furthermore, the bills deal with land ownership as a proxy for agricultural production, but the current structure of agricultural markets may make that an inadequate proxy. Eight of the twenty largest food and beverage companies in the United States are foreign companies, but none are from the countries deemed foreign countries of concern in the new wave of alien land laws.²⁶⁷ Control of agricultural land neither results in automatic control of the food supply, nor does it lead to control of agricultural production. In Iowa, for example, where roughly all non-family corporations are prevented from owning agricultural land, large agribusinesses simply lease the land from several owners, subverting the goal of the ownership prohibition.²⁶⁸ A similar subterfuge could be used by foreign companies in response to state alien land laws.

If the concern is foreign control of agricultural land and absentee ownership, focusing on the “who” by targeting specific countries’ nationals would be a partial solution if the countries singled out were the ones that most foreign owners come from. If that were the case, then instead of banning China, Iran, North Korea, or Russia, states should ban Canada, Netherlands, Italy, the U.K. and Germany, in that order, because each of them owns far more agricultural land than China.²⁶⁹ Even a measure like Washington’s—a blanket prohibition on foreign investment in agricultural land—is not automatically going to slow down the consolidation of land and reduce land prices because domestic companies may still accumulate large amounts of natural resources.

A less restrictive alternative to address concerns about foreign control of resources is to limit the amount of these resources that foreigners can own. This approach recognizes that size matters and that small investments give foreign actors less leverage against federal, state, and local governments.²⁷⁰ Restricting the amount of land that noncitizens can own would also discourage financial investors seeking market control who need a certain scale for the investment to be profitable.

iii. Absentee Ownership

A third motivation for the new wave of alien land laws is concern over absentee ownership.²⁷¹ Absentee ownership is problematic because property is treated as an investment, and the owner generally lacks interest in what role the property could fulfill in the community,²⁷² civically and economically.²⁷³ This concern applies to both agricultural lands and dwellings. Alien land laws that distinguish between “resident aliens” and “nonresident aliens” reflect a desire to preserve property for residents. But because most state laws usually define a “resident alien” as living anywhere in the United States, limiting property ownership to resident aliens would not necessarily prevent absentee ownership. An owner of agricultural land in the Central Valley living in Shanghai is no different than an owner living in Rhode Island. Both will lack the local knowledge and the community involvement.

A more narrowly tailored alternative to address absentee ownership would be to impose a requirement of occupancy or production, or both, like the requirements for establishing a homestead.²⁷⁴ Alternatively, a state could tax land that is not in production at a higher rate, no matter where the owner resides.

A few alien land laws do impose stricter residency requirements to prevent absentee ownership.²⁷⁵ For example, Oklahoma’s newly enacted law has an exception for noncitizens who “take up bona fide residence in this state,” but if they leave the state, they must dispose of the land within five years.²⁷⁶ These requirements likely violate the Commerce Clause.

iv. Real Estate Market Prices

Although not explicitly mentioned by legislators proposing alien land laws, another motivation is fear of foreign investors driving up the prices of real estate.

In the agricultural sector, the fear is that it may displace American farmers who will not have access to land. Alabama’s Senate Bill (“S.B.”) 14 banning foreign ownership of agricultural land illustrates these concerns.²⁷⁷ Although the problem of access to farmland for small family farmers is real, the culprit is not necessarily foreigners but rather investors and consolidation.²⁷⁸ Furthermore, agribusinesses have been dominating the market.²⁷⁹ These alien land laws focus on the “who,” instead of on the “what”—in other words, they do not tackle the issue of corporate consolidation plundering natural resources.²⁸⁰

In the residential market, even if the overall Chinese investment in land is not large, it may have significant effects in certain local markets. While Chinese investment in land may drive prices up, it is necessary to consider a more nuanced picture. In some areas of the Midwest, Chinese investment has helped revitalize crisis-stricken areas, such as the Stonewater Community in a suburb of Detroit.²⁸¹ Many municipalities have welcomed the new developments targeting Chinese buyers. Corinth, near Dallas, readily approved new developments in its jurisdiction.²⁸² The situation may be different in Manhattan or San Francisco and other big cities where Chinese investments may be driving up home values.²⁸³ However, targeting the demand side will not solve the housing crisis because it is a supply-side problem.

The poor fit between alien land laws and their objectives, combined with the availability of less restrictive alternatives, means such laws are likely to be struck down under strict scrutiny.

3. Rational Basis Analysis

If rational basis review applies instead of strict scrutiny, then a court need only inquire if the law is rationally related to a legitimate government purpose. There is no analysis of less restrictive alternatives for rational basis review.²⁸⁴ While laws generally survive rational basis review, courts have invalidated laws motivated by animus by applying rational basis with bite, a heightened form of scrutiny. Both types of rational basis review are discussed below.

i. Regular Rational Basis Review

The poor means-end fit discussed above arguably fails not only strict scrutiny, but also rational basis review. There is simply no rational relationship between the asserted objectives and the means being used to achieve them, since the restrictions imposed will be completely ineffective in addressing the problems identified. First, the problems of access and prices of real estate are mostly supply problems, not demand. Second, the countries that are singled out in the new wave of alien land laws completely fail to reflect the nationalities of the largest foreign landowners. Third, these laws are argued as ways to ensure food security, but food security is not a problem in the United States. To the extent that food security embodies consolidation in the agricultural sector and absentee ownership, alien land laws do not solve the food security problem because the real culprits are domestic corporations and corporations from countries that are not mentioned in any of the alien land laws. Fourth, from a national security perspective, foreign adversaries who want to spy on the U.S. are likely to use methods that do not require a land base near the target.

The few cases where courts have upheld alien land laws under rational basis review are distinguishable from many of the current laws because those laws were different in scope and did not single out specific nationalities. For example, the Eighth Circuit upheld a Nebraska constitutional provision prohibiting agricultural land ownership by non-family corporations.²⁸⁵ In addition, the Wisconsin Supreme Court upheld a law that limited ownership of land by “nonresident aliens” to 640 acres.²⁸⁶ The court found the law to be rationally related to the legitimate goal of preventing absentee ownership, stating that “limiting the benefits of land ownership to those who share in the responsibilities and interests of residency is not an unreasonable exercise of legislative choice.”²⁸⁷

The fate of the new laws may be different, especially if they single out specific countries. Laws targeting citizens, corporations, and governments of China, Iran, North Korea, Russia, and other countries on various federal lists are much more ineffective (and more insidious) than the laws considered in these prior decisions, which treated all nonresident aliens equally. If the targeted countries’ citizens and corporations own little to no real property in the state, legislators cannot rationally think that prohibiting them from owning real estate will make a dent in the problems they want to tackle. Additionally, absentee ownership is already pervasive in the agricultural sector. Targeting foreign owners as a potential solution would affect only 3% of the land in the United States if all countries were restricted. Legislators are aware that there is little overlap between the problem of absentee ownership and foreign ownership.²⁸⁸ As for statutes that prohibit landownership within a certain distance of military bases or critical infrastructure, this will do nothing to prevent cyberattacks, which pose the main threat to national security, as noted above.²⁸⁹

Another reason for questioning the rationality of the new wave of alien land laws is that availability bias appears to play a major role in legislators’ decisions. Availability bias is the human tendency to use information that comes to mind quickly and easily when making decisions.²⁹⁰ It is an unconscious mental shortcut that circumvents taking all evidence into consideration. Because a few incidents that involved foreign investors made national news, the new wave of alien land laws was spurred.

In addition to the wind farm project planned by Mr. Sun in Texas, there were two other prominent incidents. One involved a Saudi-owned company called Fondomonte that was leasing public land in Arizona and draining the groundwater supply to grow alfalfa for export back to Saudi Arabia, where alfalfa farming was prohibited due to water scarcity. The company paid relatively little to lease the land in Arizona and got the water for free, while Americans in the surrounding area paid extremely high costs for water.

The other case involved a Chinese food manufacturer that tried to purchase 300 acres of agricultural land in North Dakota located twelve miles from the Grand Forks Air Force Base.²⁹¹ The federal government’s CFIUS reviewed this case and determined that it did not have jurisdiction over the transaction because the Grand Forks Air Force Base was not on its list of military installations.²⁹² This led people to believe that the federal government’s process was inadequate and that states needed to take more action. The Grand Forks incident was relied on not only by legislators in North Dakota, but also by other states including Florida.²⁹³ Yet, as previously noted, the law that Florida ultimately passed would not have stopped such an investment, since it prohibited Chinese foreign investment within ten miles of military installations. The arbitrariness and ineffectiveness of the laws suggest that decisions were driven by implicit biases rather than carefully studied facts. Worse yet, they may have been motivated by animus, as discussed below.

ii. Rational Basis with Bite

To the extent that recent alien land laws are motivated by animus toward China or another country, courts may apply “second order” rational review, also known as rational basis “with bite.”²⁹⁴ In such cases, the Supreme Court has found the government’s interest to be illegitimate because it is motivated by prejudice. The Court has considered a poor means-end fit to be a signal that an illegitimate interest may be motivating the law.²⁹⁵

Comments made by politicians around the time that the recent wave of alien land laws started being proposed certainly suggest that anti-Chinese animus played a role. For example, in 2022, a candidate who competed in the Republican primary for a Texas House seat tweeted, “China created a virus that killed hundreds of thousands of Americans.”²⁹⁶ Former President Trump also continued to call COVID-19 the “China virus” throughout 2022.²⁹⁷ Each tweet from Trump that mentioned “China” and “COVID” together resulted in an 8% increase in anti-Asian hate incidents and tweets with racial slurs.²⁹⁸

Politicians further fanned the flames of anti-Chinese animus by presenting China as a threat to the American way of life. A U.S. Representative from Indiana accused President Biden of “turning a blind eye to CCP spies abusing our visa system.”²⁹⁹ A U.S. Senator from Tennessee warned that “[t]he CCP is attempting to take over the USA across all industries—pushing spies into U.S. universities and buying U.S. farmland.”³⁰⁰ Vice President J.D. Vance, a former Senator from Ohio, analogized U.S. economic dependence on China to slavery when he was running for his Senate seat, stating: “When our farmers go bankrupt the Chinese who sell the fertilizer will happily buy up their land. This is the pathway to national slavery.”³⁰¹ The Washington Post and other outlets have also highlighted how “anti-Asian bigotry” is behind the new alien land laws targeting China.³⁰²

In City of Cleburne v. Cleburne Living Center, Inc., a classic case on rational basis with bite, the Court focused on the lack of “fit” between the language of a zoning ordinance and a town’s asserted objectives for denying a special permit to a group home for people with mental disabilities.³⁰³ The town claimed that the purpose of the ordinance and permit process was to avoid congestion and ensure safety in the event of a fire or flood, but the Court pointed out that the permit process did not apply to hospitals, nursing homes, dormitories, and other uses that could be expected to pose greater problems than a group home.³⁰⁴ This poor means-end fit supported the Court’s conclusion that the ordinance had an illegitimate purpose based on animus.

Similarly, the underinclusive nature of alien land laws that target countries with minimal investments in U.S. land, while omitting the countries with the largest investments, demonstrates a poor means-end fit if the asserted objectives are to protect food security and prevent absentee landownership. These laws also generally “grandfather” in ownership of existing properties, which some commentators have identified as another signal of underinclusiveness that can trigger heightened “rational basis” review.³⁰⁵

In sum, regardless of whether strict scrutiny or rational basis review applies, alien land laws targeting specific countries should be struck down. They are not rationally related to a legitimate government interest, much less narrowly tailored to a compelling government purpose, and they appear to be motivated, at least in part, by impermissible animus.

C. Preemption Concerns

Whether alien land laws are preempted by federal law is another important constitutional question. This Section explores whether alien land laws are preempted by federal immigration laws, the federal government’s national security and foreign affairs powers, and the CFIUS and USDA reporting regimes.

1. Immigration Preemption

The Immigration Act of 1952 established “a comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”³⁰⁶ Supreme Court precedents indicate that alien land laws restricting noncitizens who have already been admitted to the U.S. may be preempted by federal immigration law. In Takahashi, the Supreme Court explained that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with [the] federal power to regulate immigration, and have accordingly been held invalid.”³⁰⁷ Both Takahashi, and an earlier case, Truax v. Raich, struck down state laws limiting the employment of lawfully present noncitizens by reasoning that federal immigration law granted a “privilege to enter and abide in ‘any state in the Union,’ ” and that denying the right to work would be “tantamount to . . . deny[ing] them entrance and abode.”³⁰⁸

In Richardson, the Supreme Court confirmed that states may not impose an “auxiliary burden[] upon the entrance or residence of aliens” that Congress had never contemplated.³⁰⁹ Restrictions on ownership of real property impose precisely this type of auxiliary burden. Certainly, Congress never contemplated that lawful permanent residents would be encumbered by ownership restrictions. With respect to temporary immigrants (i.e., “nonimmigrants”), Congress required certain classes, such as tourists, students, and crewman, to maintain a residence abroad that they had no intent of abandoning.³¹⁰ But for other classes of temporary immigrants, Congress did not impose any such requirement.³¹¹ The Supreme Court has interpreted this silence “to mean that Congress . . . was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile.”³¹² If every state could prohibit temporary immigrants from buying—or potentially even leasing—property, the doors of the United States would effectively be closed to when Congress permitted them to establish domicile here.³¹³ As a federal court in Texas recognized, “[r]estrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not.”³¹⁴

While lawfully admitted immigrants may have the strongest argument for immigration preemption, courts have also struck down state laws that discriminate against undocumented individuals in housing as preempted by federal immigration law.³¹⁵ For example, in Villas at Parkside Partners v. City of Farmers Branch, the Fifth Circuit found that immigration law preempted a local ordinance that prohibited renting to individuals who are not “lawfully present.”³¹⁶ The court reasoned that Congress contemplated that such individuals would reside in the United States until potential deportation and even required them to provide a reliable address to the federal government.³¹⁷ Additionally, the court noted that deciding whether someone is “lawfully present” requires a complex analysis and should be made only by federal immigration officials.³¹⁸ The same reasoning would support striking down Louisiana’s newly enacted alien land law, which exempts noncitizens who are “lawfully present in the United States” and would therefore require a state official to make a determination about someone’s legal status.³¹⁹

Additionally, in City of Farmers Branch, the court was concerned about the immigration classification in the local ordinance being “at odds” with a much more nuanced federal regime.³²⁰ Some of the proposed and enacted alien land laws raise similar concerns by using terms that conflict with immigration law. For example, Minnesota’s law defines a “permanent resident alien” to include not only someone who is a lawful permanent resident, but also a nonimmigrant treaty investor.³²¹ A bill proposed in West Virginia defined a “nonresident alien” as someone who is neither a U.S. citizen nor a lawful permanent resident. Under that definition, all sorts of noncitizens would be swept into the restriction, even if they live in West Virginia.

Finally, the registration and reporting requirements found in some alien land laws may be preempted by immigration law. In Hines v. Davidowitz, the Supreme Court found that immigration law preempted a Pennsylvania statute requiring adult aliens to register with the state, pay a fee, and carry an ID.³²² Likewise, in Arizona v. United States, the Court stressed that “the Federal Government has occupied the field of alien registration.”³²³ The Court explained that “[t]he federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance.”³²⁴ A state law that requires certain noncitizens to register their property, and penalizes them for failing to do so, is not far afield from one requiring noncitizens to register themselves, especially since the same personal information must be provided.

The arguments presented above all involve noncitizens who are in the United States. The major group omitted from this analysis of preemption by federal immigration laws are noncitizens abroad. But the other bases for preemption, discussed below, would apply to that group.

2. Foreign Affairs Preemption

The Constitution entrusts foreign affairs powers exclusively to the federal government.³²⁵ Foreign affairs preemption serves several purposes: it constrains a state’s ability to offend a foreign country, which could lead to hostilities; it promotes unity in the nation’s external affairs; and it furthers the effective exercise of foreign policy.³²⁶ Yet, as the history of alien land laws shows, states have long engaged with issues that affect foreign nationals.³²⁷

The Supreme Court has provided different versions of the test for determining whether a state law impermissibly interferes in foreign affairs. In American Insurance Ass’n v. Garamendi, which struck down California’s “Holocaust-era” insurance legislation, the Court framed the issue as whether the state law is likely to produce “more than [an] incidental effect in conflict with express foreign policy.”³²⁸ In Zschernig, the Supreme Court invalidated an Oregon probate law that permitted states courts to withhold remittances to nonresident aliens residing in Communist countries.³²⁹ Even though states traditionally have the power to regulate estates and probate, the Court found that the Oregon law “affect[ed] international relations in a persistent and subtle way.”³³⁰ There, the Court framed the test as whether the state law “impair[s] the effective exercise of the Nation’s foreign policy.”³³¹ And in Crosby v. National Foreign Trade Council, which struck down a Massachusetts law that barred state agencies from purchasing goods or services from companies doing business with Burma, the Court considered whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [federal policy].”³³²

Applying these cases to alien land laws, the question is whether, or to what degree, they conflict with U.S. foreign policy or pose an obstacle to the objectives of foreign policy. Do they merely have an incidental impact on foreign affairs, or is the effect more material? While the answer will likely depend on the specifics of a particular law, it is also worth considering the cumulative impact of these alien land laws on foreign affairs. If every state prohibited citizens of China from buying property, the impact on foreign relations would be far more significant than if only a few did so.

State laws that unilaterally identify certain nations as “countries of concern” or “foreign adversaries,” with no reference to a federal law, are particularly likely to raise foreign affairs preemption concerns. Like the Massachusetts law struck down in Crosby, these state laws are making a judgment about the conduct of a foreign country that is “apart from the federal government’s own announced judgment.”³³³ Even if the countries identified by the state law are currently consistent with a federal designation, federal law expressly contemplates those designations changing over time, and state laws may not keep up with them.³³⁴ Some lower courts have already expressed preemption concerns about state laws that are directed at particular nations, noting that they can be perceived as a unilateral declaration of “economic war,”³³⁵ or a “political statement” about the country.³³⁶ As one court recognized, the potential effect on international relations is greater when a state targets a specific country instead of regulating all noncitizens regardless of nationality.³³⁷

Additionally, the countries identified by name in the new wave of alien land laws are already subject to individualized sanctions by the federal government. Several Presidents have issued Executive Orders and Congress has passed laws imposing unique sanctions against China,³³⁸ Iran,³³⁹ North Korea,³⁴⁰ and Russia,³⁴¹ among other countries. Just like the sanctions against Burma discussed in Crosby, the laws addressing sanctions against these countries give the President flexible authority over what sanctions to impose and empower the President to waive any sanctions in the interest of national security. In Crosby, the Court reasoned that Congress would not have “gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.”³⁴²

Like the Massachusetts law in Crosby, alien land laws that target countries subject to federal sanctions “impos[e] a different, state system of economic pressure,” “penalize[] some private action that the federal [laws] . . . may allow, and pull[] levers of influence that the federal [law] does not reach.”³⁴³ The restrictions imposed by the alien land laws also make it impossible for the President “to restrain fully the coercive power of the national economy” by lifting or promising to lift sanctions, which leaves the President with “less to offer and less economic and diplomatic leverage as a consequence.”³⁴⁴ These state laws could also conflict with the federal sanctions scheme by flatly prohibiting financial transactions that the OFAC might permit with a license.³⁴⁵

When Congress wanted state and local governments to play a role in sanctioning a country such as Iran, Congress explicitly authorized them to do so.³⁴⁶ The 2010 Comprehensive Iran Sanctions, Accountability, and Divestment Act specified what form such state sanctions could take (divestment from companies that invest $20 million or more in Iran’s energy section), stated that such laws were not preempted, and protected due process by requiring notice and the opportunity for a hearing.³⁴⁷ Without this explicit congressional authorization, however, such sub-federal sanctions would likely be preempted by either the statute or executive action.³⁴⁸

Alien land laws that avoid naming specific countries but rely on various federal designations raise similar preemption concerns. The federal government has already determined the unique purposes and consequences of each of these designations. Adding restrictions involving real property ownership to whatever consequences the federal government has already imposed interferes with the federal scheme. For example, if the Secretary of State designates a country as “of particular concern,” Congress has authorized fifteen specific “Presidential Actions” that may be imposed on such designated countries, as well as any “commensurate action.”³⁴⁹ The President is also authorized to waive the application of any action.³⁵⁰ State laws that restrict real property ownership by citizens or entities of these “countries of particular concern” add consequences that were never contemplated by Congress and that can undermine the President’s decisions.

The variation among the countries included in each federal list underscores the deliberate decisions made by federal actors about how each country should be classified based on specific foreign policy objectives. State laws that use these classifications in a completely different context distort their purpose. This preemption argument is especially strong where the federal law constrains the context in which a particular term may be used. For example, federal regulations specify that the Secretary of Commerce’s classification of certain countries as “foreign adversaries” is “solely for the purposes of ” a particular executive order.³⁵¹

Individually and collectively, alien land laws that target specific countries, either by name or based on a federal list developed for another context, “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.”³⁵² As the Court explained in Crosby, “the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.”³⁵³

Although the argument for foreign affairs preemptions seems strong based on these Supreme Court precedents, the U.S. Department of Justice surprisingly did not assert preemption in a Statement of Interest that it submitted in the case challenging Florida’s alien land law.³⁵⁴ Its failure to do so was noted by the district court in rejecting the plaintiffs’ preemption argument.³⁵⁵ Given the weight that courts give to the federal government’s own position on preemption, the Department of Justice’s position could prove fatal to preemption arguments in other cases as well. However, in the recent Shen case, even with the silence of the federal government, the Eleventh Circuit Court of Appeals granted a preliminary injunction based on CFIUS regulation of real estate transactions.³⁵⁶

3. The CFIUS and USDA Regimes

Concerns about foreign interests in real property are not unique to States. At the federal level, there are two avenues to rein in foreign investment: data collection on foreign interests in agricultural lands by the USDA and the review of certain transactions via CFIUS. These federal regimes may preempt state restrictions on foreign investment.

i. Reporting to USDA

The Agricultural Foreign Investment Disclosure Act of 1978 (“AFIDA”) established a framework to collect reported data on foreign ownership of agricultural land.³⁵⁷ Unfortunately, the system has not been properly implemented. Inaccuracies and underreporting have been pointed out.³⁵⁸ These critiques of the incompleteness and lack of transparency of the USDA reporting system have prompted Congress to include in the Consolidated Appropriations Act for the 2023 Fiscal Year (“FY”) a mandate to USDA to report on the impact that foreign investment has on family farms, rural communities, and the domestic food supply.³⁵⁹ The Government Accountability Office is expected to issue a report on the AFIDA and USDA reporting frameworks. There are several bills being discussed in the 2023–2024 congressional term seeking to ensure compliance with AFIDA. The Not One More Inch or Acre Act would ensure higher penalties for not complying with AFIDA.³⁶⁰ Under current law, persons who have violated AFIDA are subject to a fine of up to twenty-five percent of the foreign person’s interest in the agricultural land. This bill would make the minimum fine to be ten percent. House Resolution (“H.R.”) 1789 would require the penalty to be “at least [fifty] percent” of the market value of the land.³⁶¹ S.B. 2060 (Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act)³⁶² would require USDA to investigate efforts to steal agricultural knowledge and technology and to disrupt the U.S. agricultural sector. S.B. 2060 would also made the Secretary of Agriculture a member of CFIUS.

ii. CFIUS

CFIUS is a system for monitoring and, if necessary, blocking foreign investments that threaten national security.³⁶³ Established by President Ford in 1975, CFIUS is an interagency committee, chaired by the U.S. Department of Treasury.³⁶⁴ If CFIUS determines that an investment poses a threat to national security, the President can block or unwind the transaction. National security is not defined for CFIUS’s purposes, leaving it open to discretion.³⁶⁵

CFIUS originally focused only on foreign investment in U.S. businesses, without reviewing any real estate transactions. But in 2018, the Foreign Investment Risk Review Modernization Act (“FIRRMA”) expanded CFIUS and the President’s authority to review and block “certain types of real estate transactions involving the purchase or lease by, or a concession to, a foreign person.”³⁶⁶ CFIUS only has authority over real estate transactions that are in or around airports and maritime ports, or that are close to certain designated military installations. FIRRMA recognized that the President may want to consider factors such as “the relationship of [the investor’s] country with the United States” and “the adherence of the subject country to nonproliferation control regimes” in deciding whether to block a transaction.³⁶⁷

CFIUS’s jurisdiction also excludes transactions involving a single housing unit or real estate in urbanized areas.³⁶⁸ Small real estate investments are not expected to have a significant impact on national security and may not encourage large investments. Certain transactions must be reported, such as those involving a foreign government or any other transaction that CFIUS’s regulation mandates, while others fall under voluntary reporting. Real estate transactions so far have not been subject to mandatory reporting, suggesting that Congress did not consider them a national security threat. Control of critical infrastructure does trigger an investigation by CFIUS,³⁶⁹ but agriculture and food systems are not specifically identified as critical infrastructure. Bills that Congress considered but did not pass would have made that connection clear.³⁷⁰ In 2022, President Biden instructed CFIUS to consider the implications of foreign investment for food security.³⁷¹

For transactions under the purview of CFIUS, CFIUS is a ceiling and states cannot strengthen the regime by imposing additional obstacles. Hence, the provisions of new alien land laws overlapping with CFIUS are preempted because they could constitute an obstacle for federal enforcement.³⁷² Because of its limited jurisdiction, CFIUS would not have the authority to review many of the individual real estate transactions prohibited by state alien land laws. For example, as noted above, CFIUS found that it did not have jurisdiction to review a Chinese food manufacturing company’s purchase of 370 acres located twelve miles from the Grand Forks Air Force Base in North Dakota.³⁷³ That air force base was not on CFIUS’s list of designated military installations. Additionally, as a practical matter, CFIUS’s review of real estate transactions is negligible. In 2022, CFIUS reviewed 285 notices of non-real estate transactions, and only one notice of a real estate transaction.³⁷⁴ But still CFIUS may operate as a deterrent.

One could argue that Congress steered clear of ordinary real estate transactions in order to allow states to exercise their traditional control over land and property.³⁷⁵ On the other hand, Congress’s decision to include certain transactions while omitting others may reflect a carefully calibrated consideration of national security and economic interests, in which case states should not be allowed to disturb the delicate balance struck by Congress.³⁷⁶ Of course, if Congress had perceived alien land laws as conflicting with federal law (the CFIUS regime), it could have taken some action. So far, however, Congress has done nothing to impede states from implementing such laws. When Congress amended FIRRMA in 2018, at least fifteen states had alien land laws,³⁷⁷ and Congress did not indicate any intent to displace those laws in the amended Act. However, in past years, bills were introduced at the federal level that would have expanded CFIUS’s jurisdiction over real estate transactions,³⁷⁸ or outright prohibited citizens of China, Russia, North Korea, or Iran from purchasing land.³⁷⁹ While the CFIUS regime is limited, states’ unilateral actions singling out certain countries threaten the unified position that CFIUS enshrines with respect to both adversaries and allies.³⁸⁰

The Eleventh Circuit Court of Appeals in the case challenging Florida’s S.B. 264 granted a preliminary injunction in favor of two of the plaintiffs and based the “likelihood of success” on the merits on the potential preemption of S.B. 264 by the carefully crafted balance of CFIUS review under FIRRMA for real estate transactions, including those near military installations.³⁸¹

D. Dormant Commerce Clause

1. Interstate Commerce

While the Commerce Clause gives power to the federal government to regulate commerce between the states, it has also been interpreted as a limit on state action. Unlike preemption doctrine, which asks whether a state law conflicts with a federal law or whether Congress has occupied the field, the Dormant Commerce Clause prohibits state or local action that restricts interstate commerce even in the absence of congressional action. The goal of the Dormant Commerce Clause doctrine is to prevent “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”³⁸²

Some alien land laws violate the Dormant Commerce Clause by treating out-of-state actors differently than in-state actors in ways that have a negative impact on interstate commerce. The disparate treatment between in-state and out-of-state residents in North Dakota’s new law is the clearest example. North Dakota’s law disadvantages noncitizens who are either abroad or in another state. It requires noncitizens who are not permanent residents or otherwise exempted to reside in the state for ten months a year. It also exempts those who actively participate in the management of the agricultural operation, which could allow someone to comply with the restrictions without being present in the state.³⁸³ A noncitizen who stops fulfilling these requirements must dispose of the property. A foreign person who moves to another state then cannot hold land while a similarly situated foreign person in North Dakota can.

Another example is the initial version of an Oklahoma bill, which exempted “any alien who is or shall become a bona fide resident of the State of Oklahoma” from the restrictions on ownership.³⁸⁴ Such a provision explicitly treats noncitizens living in another state differently than noncitizens residing in Oklahoma, which would trigger strict scrutiny under the Dormant Commerce Clause.³⁸⁵ Oklahoma likely recognized the Dormant Commerce Clause issue, because the final version of its rule pronounced that “the requirements of this subsection shall not apply to a business entity that is engaged in regulated interstate commerce in accordance with federal law.”³⁸⁶

Courts have struck down similar restrictions on landownership that favor in-state residents. For example, in Jones v. Gale, the Eighth Circuit invalidated a Nebraska initiative that amended the state constitution to ban corporations from owning farmland, with an exception for family farm businesses in which at least one family member resided or worked on the farm.³⁸⁷ The court found that this amendment favored Nebraska residents in violation of the Dormant Commerce Clause.³⁸⁸ Alien land laws that apply restrictions without differentiating based on residence in the state are much more likely to survive a Dormant Commerce Clause analysis.

2. Foreign Commerce

Restrictions on foreign ownership of land have a more obvious effect on international trade than they do on interstate commerce because noncitizens abroad are clearly targeted.³⁸⁹ North Dakota’s law, for example, allows noncitizens to buy agricultural land only if they reside in the state, while U.S. citizens and permanent residents can own agricultural land there regardless of where they live. While no country is singled out in North Dakota’s law, those countries without a treaty of friendship with the United States will be the ones whose citizens will be most affected.³⁹⁰

The Dormant Foreign Commerce Clause operates similarly to the interstate Dormant Commerce Clause, but state laws burdening foreign commerce are subjected to more demanding scrutiny.³⁹¹ When it comes to regulating foreign commerce, the Supreme Court has stressed that state laws should not “prevent this Nation from ‘speaking with one voice.’ ”³⁹² In the seminal case Japan Line, Ltd. v. County of Los Angeles, the Court highlighted the “acute” risk of retaliation by Japan for California’s imposition of a tax rule that deviated from international practice, observing that such retaliation “would be felt by the Nation as a whole,” not just by California.³⁹³

In subsequent cases, however, the Court has acknowledged the difficulty in determining “precisely when foreign nations will be offended by [a] particular act[]” or whether they might retaliate.³⁹⁴ The Court has also upheld state taxes on foreign entities by reasoning that no coherent federal policy exists.³⁹⁵

Under the Dormant Foreign Commerce Clause, it may be hard to demonstrate a uniform federal policy on foreign land ownership, since the federal government has traditionally entered into bilateral treaties with specific countries when it wanted to override state restrictions on foreign ownership of land.³⁹⁶ Additionally, in Barclays, the Supreme Court suggested that congressional inaction indicates acquiescence to differing state laws.³⁹⁷

Alternatively, courts may rely on the Supreme Court’s position in South-Central Timber Development, Inc. v. Wunnicke,³⁹⁸ which allows states to escape scrutiny under the Dormant Commerce Clause only if they are market participants themselves. For example, states could be acting as market participants when they are regulating state public lands, or when Congress has expressly excluded a state law from Dormant Commerce Clause scrutiny.³⁹⁹ In some cases, the Court has not considered references to state power over a resource, like water, in federal laws⁴⁰⁰ or in treaties⁴⁰¹ enough to conclude that Congress has excluded the application of the Dormant Commerce Clause to states. Accordingly, acknowledgement of state power to regulate property is an inadequate basis for refusing to apply the Dormant Foreign Commerce Clause when state laws discriminate against noncitizens abroad.

CONCLUSION

While each wave of alien land laws has responded to unique historical events, xenophobia of some kind undergirds them all. The current wave is no different. The dominant narratives that have fueled such bills involve members of the Chinese Community Party buying land to either spy on U.S. military bases or to “undermine American agriculture and control the global food supply.”⁴⁰² These narratives reflect a few salient examples of Chinese investments near military bases, but they have nothing to do with most foreign investment in the U.S. This Article has argued that one of the most significant weaknesses of these new laws is the complete lack of fit between the objectives asserted and the means being used to achieve them. This lack of means-end fit, combined with the availability of less restrictive alternatives, is highly relevant to both the equal protection analysis and the Fair Housing Act disparate impact analysis.

As legal cases challenging these new laws start percolating through the court system, the Supreme Court may eventually need to decide whether it will stand by hundred-year-old precedents upholding alien land laws that were based on explicitly racist naturalization eligibility criteria—rules that prohibited Asians from becoming U.S. citizens. The time has come for those cases to be overturned. But overturning them will likely require the Court to clarify certain unanswered questions in equal protection doctrine regarding alienage discrimination, such as whether strict scrutiny applies to all classes of noncitizens and whether the political functions exception to strict scrutiny can be extended to landownership.

Courts may also decide to avoid the thorny equal protection questions by striking down alien land laws on preemption grounds instead. However, the various arguments for preemption discussed here involve their own hurdles. Preemption under immigration law would likely be limited to noncitizens who have already been admitted to the U.S. Foreign affairs preemption seems particularly promising, but the federal government’s decision not to argue preemption in the recent Florida case to date may undermine that claim. A Dormant Foreign Commerce Clause argument is also strong, but courts may still be reluctant to invalidate a law related to traditional state powers over property based on interference with commerce.

There is also a chance that Congress will enact new laws in the near future addressing foreign ownership of land, as several such bills have already been proposed.⁴⁰³ Depending on the substance of a federal law, this could either make it harder or easier to challenge property restrictions related to national origin. In FY 2024, the House proposed a bill that would “prohibit the purchase of agricultural land located in the United States by nonresident aliens, foreign businesses, or any agent, trustee, or fiduciary associated with Russia, North Korea, Iran, or the Communist Party of China.”⁴⁰⁴ If the federal government decides to pass a law like this that singles out certain countries, it would be harder to challenge than a similar state law, as rational basis review, rather than strict scrutiny, applies to alienage classifications by the federal government.⁴⁰⁵ Additionally, the Dormant Commerce Clause and preemption arguments would disappear, since they only constrain states.

The enactment of federal legislation would, however, bolster arguments that state laws are preempted. A federal law that did not single out specific countries and instead set some general limits on foreign land ownership across the board, such as a limit on the amount of U.S. land that a noncitizen abroad or foreign business may own, could have a positive effect by displacing state laws that impose much more discriminatory restrictions.

A third possibility is that Congress could explicitly embrace a cooperative approach, specifying that the newly enacted federal legislation does not prohibit states from passing their own laws on foreign ownership of real property. Because this approach would potentially permit discriminatory state laws, it would be wise for Congress to at least set some constraints regarding what types of state restrictions would be permissible to prevent a race to the bottom.

At the end of the day, states and the federal government should be wary of the harm that exclusionary laws inflict. Laws that draw distinctions based on national origin or citizenship are likely to lead to racial or ethnic profiling by realtors, lenders, and others involved in real property transactions, as well as to subordinate minorities more generally. These laws are especially apt to exacerbate discrimination against Asian Americans, Iranians, and others who are already subject to discrimination. Long ago, the Supreme Court recognized that if states were allowed to deny immigrants the right or live and work in their borders, immigrants “would be segregated in such of those States as chose to offer hospitality.”⁴⁰⁶ Alien land laws open the door to this type of segregation.

Property ownership is a crucial means of achieving both financial and social mobility; it provides access to schools, jobs, culture, and community. Restricting property rights has therefore been used as a tool throughout history to disempower certain groups, including women and racial minorities. When we deprive noncitizens of property rights, we prevent hardworking immigrants from achieving the American Dream.

98 S. Cal. L. Rev. 305

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Fatma Marouf*

* Professor of Law, Texas A&M University School of Law. I would like to thank the participants of the Asian American Pacific Islander (AAPI) and Middle Eastern North African (MENA) Women in the Legal Academy Workshop, hosted by CUNY School of Law, as well as the participants of the Clinical Writers’ Workshop hosted by NYU School of Law, for their valuable feedback on a draft of this piece.

Vanessa Casado Pérez†

† Professor of Law, Texas A&M University School of Law, Research Professor, Texas A&M Department of Agricultural Economics. I would like to thank the participants at the Rural West Workshop and Grayson Ford for his research assistance. We are grateful for the hard work of the Southern California Law Review editors.

The Limits of the Interstate Commerce Power: How to Decide the Close Cases – Postscript by R. George Wright

December 2019February 2024R. George Wright

Postscript | Constitutional Law
The Limits of the Interstate Commerce Clause:
How to Decide the Close Cases
by R. George Wright*

Vol. 93, Postscript (June 2019)
93 S. Cal. L. Rev. Postscript 45 (2019)

Keywords: Commerce Clause

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Introduction

The exceptional importance of the congressional power to regulate interstate commerce[1] is widely acknowledged.[2] The Commerce Clause authorizes, or is claimed to authorize, a remarkable range, in particular, of criminal prosecutions. One court of appeals case[3] listed an actual or purported Commerce Clause basis for federal criminal statutes focusing on, respectively, animal terrorism,[4] avoiding payment of child support,[5] avoiding prosecution,[6] transportation of strikebreakers,[7] murder for hire,[8] causing a riot,[9] participating in a riot,[10] robbery involving controlled substances,[11] domestic violence,[12] stalking,[13] violating a domestic protective order,[14] and providing minors for sex.[15]

To this listing we might add sex offender registration and notification requirements,[16] biological weapons in the context of terrorism,[17] chemical weapons prohibition,[18] church arson prevention,[19] access to health clinic entrances,[20] hate crimes prevention,[21] a broad federal arson statute,[22] a felon’s possession of a firearm,[23] brandishing of a firearm during a violent crime,[24] Hobbs Acts robberies,[25] violent crimes in aid of a racketeering enterprise,[26] and particular crimes associated with child pornography.[27]

For our purposes, the problem is whether a given federal statute, either on its face, or as applied under the circumstances of a particular case, can somehow be sufficiently linked to the legitimate scope of the underlying congressional power to regulate interstate commerce. We are thus concerned with the scope and limits of the interstate commerce power. And our focus is in particular on the many close, difficult, or controversial such cases.

Below, this Article introduces the relevant case law[28] by examining the recent case of United States v. Hill,[29] a federal Hate Crimes Prevention Act prosecution of a battery committed on a gay fellow-employee at an Amazon Fulfillment Center.[30] There follows a brief tour of the most crucially relevant Supreme Court Commerce Clause jurisprudence, with an emphasis on current doctrine.[31]

In light of these materials, this Article then highlights a number of largely unsolvable problems in trying to delimit the scope of the Commerce Clause power. There is, merely to begin, the problem of the vagueness of legal language in general and of the key terms embodied in the Commerce Clause more specifically.[32] The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.[33]

These largely unsolvable problems of vagueness then afflict the courts’ attempts to rely on ideas such as a given activity somehow sufficiently “affecting” interstate commerce, or being such as to sufficiently “concern” interstate commerce.[34] Similarly unsatisfactory are the judicial attempts to rely on a distinction between an entity’s being sufficiently “active,” or actively engaged with respect to interstate commerce, as supposedly distinct from being merely “passive,” or insufficiently engaged with interstate commerce. And then perhaps most deeply problematic is the standard judicial reliance on the idea of sometimes “aggregating” small separate effects on interstate commerce into a hypothetical or actual “substantial” collective effect of those activities on interstate commerce.

Given the insolubility of these problems, the Conclusion below recommends instead drawing the boundary lines in close Commerce Clause cases with a conscious regard for independently recognized fundamental constitutional rights and, especially in these close cases, for the expressive or symbolic value, or the lack thereof, of particular statutes and court judgments.

I. HATE CRIMES LEGISLATION AND THE SCOPE of the interstate commerce power: the hill case

In the recent case of United States v. Hill, the Fourth Circuit Court of Appeals considered the scope of congressional power to punish bias-motivated [35] crimes.[36] In this case, the defendant was charged under the federal Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009.[37] The defendant Hill had “boastfully admitted to physically and violently assaulting a co-worker preparing packages for interstate sale and shipment because of the co-worker’s sexual orientation.”[38]

At the time of the incident, Hill and his victim were engaged in tasks such as moving, binning, packing, loading, and scanning items for shipment from the Amazon Fulfillment Center in Chester, Virginia.[39] From the record, Hill approached the victim “from behind and—without provocation or warning—repeatedly punched him in the face.”[40] The victim was treated at the Amazon in-house medical clinic and at a local hospital for bruising, cuts, and a bloody nose.[41]

The victim did not return to work for the remaining several hours of his shift.[42] The immediate workplace area was closed for perhaps 30-45 minutes to remove the victim’s blood from the floor.[43] As it turned out, the Amazon Center did not miss any relevant deadlines “because other areas of the facility absorbed the work.”[44]

Hill was initially charged with the state law offense of misdemeanor assault and battery.[45] The state prosecutor, however, noting the absence of any Virginia hate crimes statutory protection based on sexual orientation,[46] asked that the federal government assume the prosecution of the case.[47] A federal grand jury then indicted Hill under the Hate Crimes Prevention Act.[48] The indictment charged Hill with attacking the defendant “because of”[49] the victim’s “actual and perceived sexual orientation.”[50]

As to the necessary relation between Hill’s act and the interstate commerce power, the indictment charged that Hill “interfered with commercial activity in which [the victim] was engaged at the time of the conduct,”[51] and “otherwise affected interstate and foreign commerce.”[52]

The court majority in the Hill case addressed both the facial and the as-applied legitimacy of the Hate Crime Prevention statute pursuant to the Commerce Clause.[53] The majority noted the specific attention of Congress to the scope of its Commerce Clause power in constitutionally justifying the Hate Crimes Prevention Act.[54] Congress had distinguished hate crimes from other, non-hate-based violent crimes.[55] Among the findings of Congress was that hate-motivated violent crimes “affect interstate commerce in many ways.”[56]

In particular, the congressional findings located an interstate nexus referring to the impeded and the forced movement across state lines of victimized members of the specified targeted groups;[57] to the prevention of targeted group members from fully participating in the interstate economy;[58] to the crossing of state lines by hate crime perpetrators;[59] to the use by perpetrators of the “channels, facilities, and instrumentalities of interstate commerce;[60] and to violence perpetrated by using objects that have themselves traveled in interstate commerce.[61] Whether any one, or some combination of, these factors, to one extent or another, could suffice to establish a constitutionally satisfactory link between a given hate crime and interstate commerce was left unaddressed by Congress.

What seems clear, however, is that Congress intended to extend the coverage of the Hate Crimes Prevention Act to the full scope of its power to regulate interstate commerce. That is, there was no congressional intent to adopt a restricted scope for the Hate Crime Prevention Act by requiring a stronger connection between the underlying conduct and interstate commerce than would be constitutionally necessary.[62]

The court in Hill then concluded that “when Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interfaces with or affects that activity.”[63] Based on this understanding of the law and the facts recited above, the court saw no error in the jury’s finding that Hill’s conduct “interfered with”[64] or “affected”[65] the “preparation of packages for interstate sale and shipment, and therefore ‘affect[ed] commerce over which the United States has jurisdiction.’”[66]

That the Amazon facility’s operations were in some respects unaffected, or only minimally affected, did not dictate a contrary result, as “Congress may regulate interference with commerce, even if the effect of the interference on interstate commerce in an individual case is ‘minimal.’”[67] In as-applied challenges, the courts are to look not to the interstate commerce significance or insignificance of the particular event in question, but to the impact on interstate commerce of an aggregated class of offending acts, taken together.[68]

Certainly, the hate-motivated battery in Hill need not be thought of as, itself, some sort of economic or commercial transaction.[69] Instead, the Hate Crimes Prevention Act’s explicit interstate commerce nexus requirements, or its jurisdictional hook, “ensures that the statute regulates only economic violent criminal conduct, not . . . noneconomic violent criminal conduct.”[70] Thus the Hate Crimes Prevention Act, as properly interpreted, requires that the victim have been engaged at the time of the offense in economic or commercial activity.[71] It does not purport to grant a general federal license to prosecute all hate-motivated crimes, however private the circumstances.[72]

The Hill case, however, also produced a dissenting opinion on the merits of the Commerce Clause nexus issue.[73] Judge Agee determined, in dissent, that Hill’s prosecution fell outside the boundaries of congressional power to legislate crimes pursuant to its interstate commerce regulatory power.[74] Judge Agee found the Hate Crime Prevention Act’s explicit jurisdictional provision,[75] or its jurisdictional nexus, to extend the reach of the statute beyond the legitimate scope of the Commerce Clause.[76] Judge Agee determined that the defendant’s “bias-motivated punch . . . [was] not an inherently economic activity and therefore not within the scope of Congress’ Commerce Clause authority.”[77] His crucial focus was thus on the defendant’s motive and his conduct, in and of itself. A bias-motivated battery, presumably, might be committed partly from bias, and partly from a desire to prevent the victim from engaging in interstate commerce. In such a case the perpetrator might himself therein be affecting interstate commerce. But not all bias-motivated batteries need have, in themselves, any such relation to interstate commerce.

Judge Agee’s underlying concern was with the potential illimitability of the federal Commerce Clause. In his words:

To allow Congress to exercise its Commerce Clause power over the non-economic offense of a bias-motivated punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.[78]

Judge Agee argued that permitting the Hate Crime Prevention Act’s jurisdictional statute to cover the case at bar would encompass any bias-motivated battery “as long as the government can show that the victim [as distinct from the defendant] was ‘engaged’ in some sort of economic activity.”[79] Given what he saw in this case as an “attenuated”[80] linkage between the regulated conduct and interstate commerce,[81] Judge Agee feared for the constitutional distinction “between what is truly national and what is truly local.”[82]

Overall, the Hill case at least suggests most of the significant issues associated with the limits of the congressional interstate commerce power. The crucial underlying problem, however, is that not all of the issues present in the Hill case are consciously and expressly recognized, let alone consciously addressed. This Article takes up the important issues, both recognized and latent, in Hill below.[83] Any understanding of these issues, however, depends upon a sense of the relevant Supreme Court case law. Thus, a highly selective, stage-setting presentation of the most crucially relevant Supreme Court jurisprudence follows.

II. The Supreme Court Cases: Source of Answers and of Unresolved Questions

However much the Supreme Court may have later vacillated between expansive and narrowing approaches to the scope of the interstate commerce power, the seminal case of Gibbons v. Ogden[84] seems to endorse a broad understanding of, respectively, the scope and meaning of “commerce,”[85] the scope and meaning of “interstate” commerce,[86] and the scope and meaning of “regulation” of interstate commerce.[87] The mark left by the Gibbons opinion in each of these respects has been, despite changing judicial emphases, indelible.

The Gibbons opinion attempted to describe the distinctive nature of the commerce that is, for constitutional purposes, interstate in character. In the words of Chief Justice Marshall, distinctively “interstate” commerce does not encompass the commerce that “is completely internal [to a single state], which is carried on between man and man in a State, or between different parts of the same State . . . .”[88] This language, however, tells us only what interstate commerce is not.

When Chief Justice Marshall expressed the idea of “interstate” more positively, he set a durable precedent by referring to the ideas of commerce extending to, concerning, or, crucially, “affecting,”[89] more than one state.[90] The language of “affecting” more than one state has become an apparently essential element of the Commerce Clause cases. The language of “affecting” interstate commerce in some sufficient fashion, or to some sufficient degree, recurs throughout crucial cases including Wickard v. Filburn,[91] Heart of Atlanta Motel, Inc. v. United States,[92] Katzenbach v. McClung,[93] United States v. Lopez,[94] United States v. Morrison,[95] Gonzales v. Raich,[96] and National Federation of Independent Business v. Sebelius.[97] The Court’s continuing reliance on the concept of “affecting,” or “concerning,” interstate commerce leads, however, into important general and specific[98] problems of vagueness and of policy uncertainty.

The Court’s inquiries into the idea of “affecting” interstate commerce become inseparable from questions of adding up, or aggregating, many instances of activities that each, by themselves, have only a trivial effect on interstate commerce. The Court’s willingness to aggregate individually minimal effects on interstate commerce is famously developed in Wickard v. Fillburn.[99]

In Wickard, an individual farmer exceeded his allotted wheat production quota, with the excess wheat then being variously used on his own local farm, rather than being sold on the interstate wheat market.[100] The farmer was by himself a price-taker, rather than a price-maker, in the wheat market. But the Court noted the existence of many other farmers similarly situated under the farm price support program in question.[101] Based on the logic of aggregation, the Court declared:

That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.[102]

The idea of aggregating a number of individually insignificant cases into a collectively sufficient effect on interstate commerce was then later pursued against individual businesses in the racial discrimination cases,[103] in Gonzales,[104] in Sebelius,[105] and in the Hobbs Act robbery case of Taylor v. United States.[106] Unfortunately, the idea of aggregation in the Commerce Clause area is fraught with a number of unaddressed, and certainly unresolved, problems.[107]

The Court has also attempted to draw Commerce Clause boundary lines through recourse to some sort of distinction between “activity,” or initiative-taking by the relevant party, and “passivity,” or something like ordinary behavior apart from any distinctive association with interstate commerce. While this distinction is most familiar from Sebelius, which dealt with the Affordable Care Act,[108] the active-passive distinction, or something akin thereto, also occurs elsewhere.[109] This inevitably controversial and contested distinction is also briefly explored below.[110]

Finally, the Court has acknowledged that in many of the most interesting cases, the Commerce Clause power is really not primarily about commerce. The power to regulate interstate commerce is, in such cases, instead seized upon opportunistically by Congress as an expedient means of promoting some element of morality, equality, justice, or personal dignity. Regulating the flow of goods, services, or persons in interstate commerce may be a genuine, but secondary, concern to the legislators in such cases. Among the Supreme Court cases in which the Commerce Clause power was successfully invoked largely to promote morality, equality, justice, or personal dignity are the foreign and interstate lottery ticket suppression case of Champion v. Ames,[111] the sex trafficking case of Caminetti v. United States,[112] the multiple spouse case of Cleveland v. United States,[113] and of course the civil rights cases in the line of Heart of Atlanta Motel.[114]

These broad, morality-focused cases may be at some distance from the core Commerce Clause cases, which are more economic–efficiency focused.[115] We explore below, however, the possibility that a moral focus may substantially contribute to our best understanding of how to decide the close Commerce Clause cases more generally.[116] For the present, though, the Supreme Court cases cited above suggest some of the largely insoluble boundary area problems inherent in the Commerce Clause cases. These dimensions include problems of general and specific vagueness and ill-definedness;[117] controversy and contestability in applying the concepts of “affecting” and “concerning;”[118] reliance on the perennially controversial distinction between “active” and merely “passive” connections to interstate commerce;[119] and a number of largely unacknowledged problems associated with the idea of aggregation.[120] These elements of the boundary problems of Commerce Clause jurisprudence are addressed below.

III. Diagnosing the Commerce Clause Boundary Area Problems

The underlying dynamic in Commerce Clause controversies often reflects differences as to the relevance and the weight of ideas such as federalism, efficiency, democracy, decentralization, plurality and dispersion of authority, and local experimentalism.[121] These differences, however, have manifested themselves in the Commerce Clause cases in distinctive recurring problems.

First are the problems we may classify under the heading of vagueness. Vagueness, for our purposes, is a matter of some number of borderline,[122] or better, boundary area cases of the proper application of a term.[123] While we might say that in a sense, all ordinary language is vague,[124] vagueness clearly is also a matter of degree.[125] In our context, “commerce” and “interstate commerce” are both relatively vague, but the Constitution plainly aspires to a logic of bivalence,[126] or binary classification. Commerce and non-commerce are thought to jointly exhaust the field. They are not thought to be mere segments on a broad continuous spectrum with numerous degrees.

Judicially attempting to fit relatively vague ideas such as “commerce” or “interstate commerce” into bivalent categories—either within or beyond the authorized constitutional scope—will often seem arbitrary and futile. But as we consider below, it may still be possible to adjudicate close Commerce Clause cases by reference to the presence or absence of any overriding interests[127] or fundamental rights[128] that may be lurking in the case at hand, even if the effect of the decision in that case is largely symbolic or expressive in character.[129]

The courts may attempt to reduce the vagueness of “commerce” and of “interstate commerce” by applying some form of original intent or original meaning theory.[130] And such approaches are sometimes endorsed by Commerce Clause scholars today.[131] But even if we endorse some inevitably controversial specific version of originalism, the remaining indeterminacies and apparently unresolvable disputes must limit our progress in usefully pinning down the vagueness of the terms in question.[132]

Even if we could resolve the vagueness issues associated with “commerce” and “interstate commerce” themselves, we would then have to confront the Court’s familiar jurisprudence of conduct that, in some sufficient way, “affects” or “concerns” interstate commerce.[133] Here, we set aside any issues of vagueness, and focus instead on substantive, policy-based uncertainties as to how to best understand and apply terms such as “affects” or “concerns.”

Whether an activity “affects,” and perhaps “sufficiently affects,” commerce or interstate commerce is not a matter of dictionary entries, but of substantive policy choices. A number of the issues are, by analogy, present as well in the use of “affects,” “concerns,” and similar concepts in the classic work of John Stuart Mill on the boundaries of the legitimate exercise of individual liberty.[134] As it turns out, even the celebrated philosopher John Stuart Mill could not apply the concepts of “affect” or “concern” with any consistency. It would be surprising if a shifting, multi-member body such as the Supreme Court could regularly fare any better.

Thus Mill seeks at points to draw the boundary line for permissible government regulation of a person’s activity at what “concerns” the self, as presumably distinct from activity that concerns others.[135] Perhaps more realistically, Mill sometimes shifts to a focus on activity that “more particularly concerns” others.[136] In a related additional qualification, Mill also sometimes seeks to crucially distinguish between effects of conduct on others that are “direct” and effects of conduct on others that are merely “indirect.”[137]

But then, perhaps recognizing the dubiousness of this direct-indirect effect distinction, Mill shifts from a focus on affecting others to a focus more specifically on affecting their interests,[138] or affecting their interests “prejudicially.”[139] Mill also seeks to avoid the direct-indirect effect distinction, as well as the problem of identifying interests, by sometimes drawing the crucial line at conduct that “seriously affects”[140] others. Mill does not, however, consistently draw the crucial line at serious harms, as opposed to harms that may be less serious.[141] In fact, Mill sometimes qualifies his “harm” principle to allow for the regulation of activities that merely pose a “a definite risk of damage” to others.[142] The inescapable bottom line is thus simply one of confusion.

Unavoidably, the Court in the Commerce Clause cases must by analogy either confront each of the problems above that afflict Mill’s parallel discussion, or fail in its responsibilities. As it turns out, the Court often relies, for example, on the plainly doubtful and not obviously significant direct-versus-indirect effect on interstate commerce distinction.[143] And where the Court is concerned about effects on interstate commerce, it has often seemed to require that the effects be somehow “substantial.”[144] But the Court has also then admitted that “our case law has not been clear whether an activity must ‘affect’ or ‘substantially affect’ interstate commerce in order to be within Congress’ power to regulate . . . .”[145]

Overall, the Court has not managed the idea of “affecting” commerce or interstate commerce any more consistently than did John Stuart Mill in the context of the limits to liberty. A final possibility, though, often arises in the cases in which a statute invokes the Commerce Clause power, but not to its full extent, leaving some constitutionally regulable activities outside the scope of the statute.[146] In such cases, typically some object must have been “used” in interstate commerce. And this statutory requirement has typically moved the courts to distinguish between the “active” use and the mere “passive” use of the entity in interstate commerce.[147]

The attempts by courts to clarify such cases by means of an active-passive use distinction often fail immediately, based on arbitrary descriptions of the specific case circumstances. Consider, for example, an act of arson that reaches only one small building among a complex of other buildings, where only the latter buildings are thought to be “actively” used in interstate commerce. Perhaps these latter buildings could not possibly have been affected by the fire in question. Will it usually be obvious whether the arsonist’s hostility is directed toward one particular building among related other buildings? Isn’t the arsonist’s real hostility sometimes directed toward the entire building complex, or toward the institution or idea it represents?[148]

Beyond such largely arbitrary line-drawing among the possible targeted properties, these cases typically take an elaborate inventory of the ways an entity might be said to be used in interstate commerce, including sometimes marginal matters such as telephone communications or media use; highway use; various forms of insurance; building leases and their terms; the full range of all the activities on one or more of the properties; property use or mere availability to out-of-state guests; property ownership structure; and even connections to utility services.[149] Some of these considerations are then said to fall within the scope of “active” use of the relevant property in interstate commerce, and others to amount only to “passive,” and thus statutorily insufficient, use.[150]

Unavoidably, characterizing a particular feature of an arson-targeted entity as “active” or as “passive” with respect to its use in interstate commerce will typically be largely arbitrary. So will a determination that some set of such activities adds up to a somehow sufficient connection to interstate commerce. But the real problem is that the active-passive use distinction unavoidably sends us down a deeply controversial path. There is a substantial and unresolved debate among the philosophers on the usefulness of the broader active-passive distinction in various contexts.[151]

Of course, the Court is not bound to recognize a relevant philosophical controversy, as it is similarly not bound in the Commerce Clause cases by the relevant conclusions of the economists. Thus, the Court in Sebelius argued that “[t]o an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction . . . would not have been lost on the Framers”[152] The problem in our more general context, though, is that the Framers had no clear intent as to how to draw, in practice, any distinction between actively using versus merely passively using some object or property in interstate commerce. If the courts continue to attempt to rely on this distinction, any private party with any inclination to do so can strategically adjust their behavior in such a way as to either minimally qualify or else not qualify as actively using a property in interstate commerce.[153]

A final, and typically unrecognized, crucial boundary area problem involves the Court’s jurisprudence of aggregation, in which small units are added up to create an overall “substantial” effect on interstate commerce.[154] The Commerce Clause aggregation jurisprudence is central not only to Wickard,[155] but to Morrison,[156] Raich,[157] Taylor,[158] and thence to the recent hate crime case discussed above, United States v. Hill.[159]

To this point, however, the Court has not meaningfully addressed several of the most basic problems attending the aggregation process in the Commerce Clause cases. First, the Court has never determined in a definite way whether the aggregation of intrastate activities can consist partly or even entirely of non-economic or non-commercial activities.[160] Second, the Court has referred merely to a “class” of activities that is to be aggregated for purposes of determining whether a substantial effect on interstate commerce exists.[161] But the Court has not meaningfully addressed how to define or limit even a clearly economic “class” of activities. Classes of relevantly similar activities are not self-identifying. Classes can be defined at various degrees of specificity or generality,[162] by either Congress or by the courts.

As merely one example of this class definition problem, consider the problem of criminal attempts. Can criminal attempts, as well as completed offenses, be somehow aggregated in such a way as to “substantially” affect interstate commerce, on a reasonable congressional judgment?[163] More broadly, can the somehow relevantly similar other class members be merely hypothetical? Or else perhaps likely to exist, over some appropriate period of time? Or perhaps just reasonably possible? And, crucially, how would these numbers of class members change over time if the relevant statute either were or were not enforced pursuant to the Commerce Clause?[164] Class membership, however defined, need not be fixed over time and unresponsive to enforcement policies. Any enforcement or lack of enforcement of a statute may create incentives, or disincentives, for persons to join the class in question.

More broadly, the Court’s aggregation in arriving at a “substantial” effect on interstate commerce faces what is classically called the Sorites problem.[165] The Sorites problem notices that in many binary classification problems, very small changes in the numbers do not allow us to make any principled change in how we classify the case in question.[166] Thus if a person with, say, 117 hairs is bald, so, we seem bound to say, is someone with 118. The problem is that there is no distinct further incremental point—say, then moving from 118 to 119 hairs—at which the person becomes non-bald. But some persons, inescapably, are not bald. In the Commerce Clause area, too, there will be no principled reason to find that some single additional incident or some additional single actor has somehow transformed a previously insubstantial effect into a substantial effect on interstate commerce. If 117 farmers produce only an insubstantial effect on interstate commerce, so, presumably, would 118. But equally clearly, some number of farmers suffices for a substantial collective effect on interstate commerce.

A related further problem addresses the status of universalizing principles, or more familiarly, the status of “what if everyone did that?” tests for any proposed principles. What if Congress or the courts were to find a substantial effect on interstate commerce based on the outcome if “everyone” somehow similarly situated to the defendant—perhaps everyone in general—acted as the defendant did? This would be done not in order to show that the defendant acted in a morally wrong manner,[167] but for constitutional interpretive and policymaking purposes. Would finding a given actor to violate a federal statute based on the substantial effect on interstate commerce that would result if “everyone” at some point acted similarly be reasonable?

Overall, then, the courts attempting to address the close cases as to the scope and meaning of the federal Commerce Clause power face daunting problems as to vagueness;[168] the debates over “affecting” commerce;[169] active versus passive involvement in interstate commerce;[170] and the proper meaning and limits of aggregating in order to reach a somehow substantial effect on interstate commerce.[171] Jointly, these largely unresolved problems threaten to impeach the claim that any particular resolution of a close Commerce Clause case is more reasonable than deciding the case in some contrary fashion. Below, we briefly suggest a value-sensitive alternative approach to the close Commerce Clause power cases.

IV. The Role of Fundamental Rights and Legal Symbolism

Let us think of a “close” Commerce Clause case not so much as one which is merely controversial, or which would divide judges, but as one in which the arguments for opposed judicial outcomes seem to an observer to be largely non-comparable, or else nearly equal in their opposed overall strength, even if the contending sides emphasize different considerations. Given this non-comparability or else very rough equality in the perceived strength of the opposed arguments, it seems likely that in some cases, deciding the case in favor of, or against, the exercise of Commerce Clause authority will not make much overall total value difference.[172] But particularly if the two judicial outcomes stem from very different assumptions, predictions, and values, it is also quite possible that deciding even a close case “wrongly” may be costly.

The problem, as we have seen throughout, is that the Supreme Court’s Commerce Clause jurisprudence generates, and then leaves unresolved and often unrecognized, a number of basic interpretive problems. Until such interpretive problems are somehow resolved, how can courts most responsibly address and resolve the close cases?

One useful general strategy would be to consider whether the close Commerce Clause case at issue is one that distinctively evokes what has been called the symbolic [173] or expressive [174] functions of lawmaking and adjudication. In a broad sense, symbolic or expressive law and adjudication recurs throughout the law, including freedom of speech;[175] equal protection and respect;[176] Establishment Clause cases;[177] tax policy;[178] and of course in expressivist theories of criminal punishment.[179]

Symbolism and expressivism can play a useful role as well in adjudicating the close Commerce Clause cases. Some such cases will distinctively call for the embrace of symbolic or expressive considerations, and other such cases much less so, or not at all. Where it is appropriate, courts should attend to and invoke any distinctively relevant symbolic considerations in deciding the close Commerce Clause cases.

Given the limited predictability of the real consequences of much Commerce Clause-based legislation, it is important to recognize that incorporating respect for symbolic value in adjudication need not always aspire to provable change in any underlying behavior. Nor need symbolically oriented adjudications amount merely to a trivial consolation prize for a superficially “winning” party. Sometimes there is real public value in “making a statement,” in getting an institution officially “on the record” in some context, or in fulfilling a public need to “send a message.”[180] Judicially sending a symbolic or expressive message thus need not be aimed, at least primarily, at producing any provable material change in the world.[181]

Some, but not all, of the close Commerce Clause cases will have some loose association with fundamental constitutional rights and values, or even with widely recognized basic human rights.[182] In those close Commerce Clause cases, the mere presence of fundamental constitutional or human rights concerns, even in the absence of their actual violation, should ordinarily tip balance in favor of at least symbolically or expressively acknowledging and endorsing the basic right in question.

Consider again in this context our exemplary hate crime case of United States v. Hill.[183] Hill involved a physical assault and battery, motivated by hostility on the basis of sexual orientation.[184] In this instance, the nature of the charge and the available range of penalties under Virginia state law could not begin to match those available under the Federal Hate Crimes Prevention Act.[185] Particularly under these circumstances, especially including victimization on the basis of sexual orientation,[186] along with the sheer public physical battery itself,[187] a national-level symbolic and expressive statement is generally appropriate. Combined with the crucial element of explicit discrimination on the basis of sexual orientation, the public physical battery in Hill and the fundamental status of physical safety suggest the value of an authoritative judicial denunciation, and a clear symbolic statement through a prosecution at the national level.

But not every close Commerce Clause case will evoke any sense of lurking fundamental constitutional or human rights, or the basic values underlying such rights, whether any such rights are actually violated in the given case or not. Some close Commerce Clause cases are instead merely near the limits of the congressional power to, for example, remove barriers to the free and uninhibited flow of manufactured goods. Even the leading case of Wickard v. Filburn involved only Filburn’s alleged violation of his own agreement to limit his wheat production in exchange for price subsidies,[188] with no fundamental constitutional or human rights, or their underlying basic values, anywhere on the horizon. No such rights are typically relevant even to broad, important, health-related statutes and regulations, as in, for example, the area of a legally specified uniformity in food nutrition labeling.[189] Many Commerce Clause-based regulations are mostly about ordinary commerce, and may even have, overall, neither significantly favorable nor significantly unfavorable effects even on commerce.[190]

Normally, close cases that do not implicate the values underlying any fundamental constitutional or human right should take seriously the widely recognized values and advantages of a meaningfully federalist system. In those close cases, the values of federalism, dispersion and decentralization of authority, welfare efficiency, pluralism, community, local democracy, and state-level experimentation should normally prevail.[191] Where no fundamental constitutional or human right or their underlying values are implicated in a close Commerce Clause case, the limiting values of federalism should thus ordinarily control.[192]

Conclusion

In the various close Commerce Clause cases, the courts must confront, or more typically ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are to be constitutionally required in a given case; of how to meaningfully distinguish between “active” and “passive” involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts can arrive at some appropriate clarification of these constitutional uncertainties, courts are better advised to instead direct their focus elsewhere when addressing the many close Commerce power cases.

Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no detectable relationship to any fundamental constitutional or human right, or to the values crucially underlying such rights, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.

[*]. Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.

[1]. U.S. Const. art. I, § 8, cl. 3.

[2]. See, e.g., Edward Samuel Corwin, The Constitution and What It Means Today 67 (14th ed. 1978) (“The Commerce Clause comprises . . . the direct source of the most important peace-time powers of the National Government . . . .”); Steven D. Smith, The Constitution and the Pride of Reason 51, 59 (1998); Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State 38, 41 (2016); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 167 (2014) (“[T]he Commerce Clause . . . in its New Deal incarnation expanded the powers of the federal government far beyond any level that it had previously held.”); Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 Const. Comment. 25, 30 (2005) (“In the last seventy years, an explosive expansion of the power to regulate commerce . . . has found a wide range of appropriately national activities to be legitimate.”); John Paul Stevens, Should We Have a New Constitutional Convention?, N.Y. Rev. (Oct. 11, 2012), https://www.nybooks.com/articles/
2012/10/11/should-we-have-new-constitutional-convention [https://perma.cc/Y56K-FZ87] (referring to “[t]he central importance of the Commerce Clause”). The scope of the congressional interstate commerce clause regulatory power is elaborately explored in Geoffrey R. Stone et al., Constitutional Law 196–254 (8th ed. 2018).

[3]. United States v. Ballinger, 395 F.3d 1218, 1229 (11th Cir. 2005) (en banc).

[4]. See id. (referring to 18 U.S.C. § 43).

[5]. See id. (referring to 18 U.S.C. § 228).

[6]. See id. (referring to 18 U.S.C. § 1073).

[7]. See id. (referring to 18 U.S.C. § 1958).

[8]. See id. (referring to 18 U.S.C. § 2101).

[9]. See id. (referring to 18 U.S.C. § 2101).

[10]. See id. (referring to 18 U.S.C. § 2102).

[11]. See id. (referring to 18 U.S.C. § 2118).

[12]. See id. (referring to 18 U.S.C. § 2261).

[13]. See id. (referring to 18 U.S.C. § 2261A).

[14]. See id. (referring to 18 U.S.C. § 2262).

[15]. See id. (referring to 18 U.S.C. § 2423).

[16]. 18 U.S.C. §§ 113, 2250, as discussed in United States v. Ambert, 561 F.3d 1202, 1209–10 (11th Cir. 2009); United States v. Howell, 552 F.3d 709, 711 (8th Cir. 2009).

[17]. 18 U.S.C. § 178(2), as discussed in United States v. Le, 902 F.3d 104, 109–11 (2d Cir. 2018).

[18]. 18 U.S.C. § 229(a)(1), as discussed in Bond v. United States, 572 U.S. 844, 844 (2014) (reversing the criminal conviction).

[19]. 18 U.S.C. § 247, as discussed in United States v. Ballinger, 395 F.3d 1218, 1221 (11th Cir. 2005) (en banc); United States v. Corum, 362 F.3d 489, 492 (8th Cir. 2004); United States v. Roof, 225 F. Supp. 3d 438, 452 (D.S.C. 2016).

[20]. 18 U.S.C. § 248(a)(2), as discussed in Zhang Jinrong v. Chinese Anti-Cult World Alliance, 314 F. Supp. 3d 420, 423 (E.D.N.Y. 2018).

[21]. 18 U.S.C. § 249 (a)(2), as discussed in United States v. Hill, 927 F.3d 188, 193 (4th Cir. 2019); United States v. Beckham, No. 3:18-cr-00075-1 2019 U.S. Dist. LEXIS 111582, at *1 (M.D. Tenn. July 3, 2019); United States v. Mason, 993 F. Supp. 2d 1308, 1316 (D. Or. 2014); United States v. Jenkins, 909 F. Supp. 2d 763, 763 (E.D. Ky. 2012); United States v. Mullet, 868 F. Supp. 2d 618, 620 (N.D. Ohio 2012) (recognizing that scissors and hair clippers used in an assault had moved in interstate commerce; and that the postal system and motor vehicles were also used in connection with the assault in question).

[22]. 18 U.S.C. § 844(i), as discussed in United States v. Mahon, 804 F.3d 946, 949 (9th Cir. 2015); United States v. Laon, 352 F.3d 286, 288 (6th Cir. 2003); United States v. Lamont, 330 F.3d 1249, 1250 (9th Cir. 2003); United States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002); United States v. Rea, 300 F.3d 952, 959 (8th Cir. 2002); United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1207 (10th Cir. 2001); United States v. Dascenzo, 152 F.3d 1330, 1301 (11th Cir. 1998).

[23]. 18 U.S.C. § 922(g)(i), as discussed in United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Urbano, 563 F.3d 1150, 1153 (10th Cir. 2009).

[24]. 18 U.S.C. §§ 924 (c)(1)(A), 924(c)(1)(C), as discussed in United States v. Gillespie, 452 F.3d 1183, 1185 (10th Cir. 2006).

[25]. 18 U.S.C. § 1951, as discussed in United States v. Lynch, 437 F.3d 902, 909 (9th Cir. 2006).

[26]. 18 U.S.C. § 1959(b)(2), as discussed in United States v. Aquart, 912 F.3d 1, 17–18 (2d Cir. 2018); United States v. Ulmana, 750 F.3d 330, 336–37 (4th Cir. 2014); United States v. Mejia, 545 F.3d 179, 203 (2d Cir. 2008).

[27]. 18 U.S.C. § 2251(a), as discussed in United States v. Humphrey, 845 F.3d 1320, 1321 (10th Cir. 2017).

[28]. See infra Part I.

[29]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

[30]. See id. at 193–94.

[31]. See infra Part II. For the Court’s ongoing attempts to establish what should count as ‘commercial’ in the context of commercial speech as distinct from non-commercial speech, see, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557 (1980). A copy of even an intensely political book or newspaper, however, is still commercial in the sense of commonly being an item intentionally moving in interstate commerce.

[32]. See infra Part III.

[33]. See infra Part III.

[34]. See infra Part IV.

[35]. Questions of the necessary kind and degree of causal relationship between a bias motive and the harm inflicted have been addressed in various legal contexts, with no single approach to the necessary causation emerging as generally applicable. One court has surveyed interpretations of the phrase “because of,” including as “a motivating factor,” “a substantial reason,” “a significant factor,” and more stringently, “solely because of,” or else a “but-for” cause of the harm. For discussion, see United States v. Jenkins, 120 F. Supp. 3d 650, 655 (E.D. Ky. 2013). Jenkins itself, a hate crimes case, appears to distinguish between “a” substantial factor and “the” substantial factor, and to require that the prohibited bias be “the factor that motivates the conduct . . . .” Id. at 658. Of course, an act may have two or more jointly necessary causes, or there may be no single necessary or indispensable cause, as the act could have two or motivating causes, each of which would by itself suffice to cause the act, with no single one of these causes itself being necessary. For background, see generally Tony Honore, Necessary and Sufficient Conditions in Tort Law, in Philosophical Foundations of Tort Law 363 (David G. Owen ed., 1997).

[36]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

[37]. Pub. L. No. 111-84, §§ 4701–13, 123 Stat. 2190, 2833–44 (2009) (codified at 18 U.S.C. § 249(a)(2) (2018)) [hereinafter Hate Crimes Prevention Act] (rider to Defense Authorization Act).

[38]. Hill, 927 F.3d at 193; see also id. at 194.

[39]. See id. at 193.

[40]. Id.

[41]. See id. at 194.

[42]. See id.

[43]. See id.

[44]. Id. One might ask, however, whether interstate commerce could be sufficiently affected by an act that stretches Amazon’s local distributing capacity thinner by forcing Amazon to call upon other workers, or upon reserve workers, to take on additional tasks, whether at the immediate expense of their other tasks or not.

[45]. See id.

[46]. See id.

[47]. See id.

[48]. See id. (referring to the federal hate crimes statute in supra note 37).

[49]. See id. For the lack of consensus on the precise import of “because of” in this and similar contexts, see supra note 35.

[50]. Id.

[51]. Id.

[52]. Id.

[53]. See id. at 196.

[54]. See id.

[55]. See id.

[56]. Id. (internal citation omitted).

[57]. See id.

[58]. See id.

[59]. See id.

[60]. See id.

[61]. See id.

[62]. See id. For background discussion, see Russell v. United States, 471 U.S. 858, 860–62 (1985); Jones v. United States, 529 U.S. 848, 856–57 (2000) (declining to impute an exceptionally broad intended scope of coverage to Congress in enacting the federal arson statute).

[63]. Hill, 927 F.3d at 201.

[64]. Id.

[65]. Id.

[66]. Id.

[67]. Id. at 202 (citing Taylor v. United States, 136 S. Ct. 2074, 2081 (2016) (Hobbs Act robbery and firearm case)).

[68]. See id.

[69]. For the reliance on this distinction, see United States v. Morrison, 529 U.S. 598, 617 (2000) (Violence Against Women Act case).

[70]. Hill, 927 F.3d at 204, 205. For discussion of the typical value, but not the invariable decisiveness, of an explicit statutory jurisdictional “hook” or linkage to interstate commerce, see id. at 208.

[71]. See id. at 205.

[72]. See id.

[73]. See id. at 210 (Agee, J., dissenting).

[74]. See id. (Agee, J., dissenting).

[75]. 18 U.S.C. § 249(a)(2)(B)(iv)(I) (2018).

[76]. See Hill, 927 F.3d at 210 (Agee, J., dissenting).

[77]. See id. (Agee, J., dissenting).

[78]. Id. at 223 (Agee, J., dissenting).

[79]. Id. (Agee, J., dissenting) (citation omitted).

[80]. Id. at 224 (Agee, J., dissenting).

[81]. See id. (Agee, J., dissenting).

[82]. Id. at 225 (Agee, J., dissenting) (quoting United States v. Morrison, 529 U.S. 598, 617–18 (2000)).

[83]. See infra Part III.

[84]. Gibbons v. Ogden, 22 U.S. 1 (1824).

[85]. See id. at 189–90 (defining “commerce” as extending far beyond the actual traffic in or exchange of commodities).

[86]. See id. at 193–95.

[87]. See id. at 195–200 (defining “regulation” as extending far beyond prohibition, as distinct from a broader power of imposing any sort of rule regarding the object in question).

[88]. Id. at 194.

[89]. See id. at 194–95 (using the language of “extend to or affect other states;” of “concerns which affect the States generally;” and of “affect other states”).

[90]. See id.

[91]. See Wickard v. Filburn, 317 U.S. 111, 124 (1942) (home consumption of home-produced wheat).

[92]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (holding that a racially segregated Georgia hotel sufficiently affected interstate commerce).

[93]. See Katzenbach v. McClung, 379 U.S. 294, 302 (1964) (using “affect other states” language as well as that of “exerts a substantial economic effect on interstate commerce”).

[94]. See United States v. Lopez, 514 U.S. 549, 559 (1995) (discussing gun possession in school zone case and referring to “activities that substantially affect interstate commerce”). For an exceptionally useful and concise overview of the Lopez case on what constitutes commerce and interstate commerce, see Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 746–47 (1995).

[95]. See United States v. Morrison, 529 U.S. 598, 612 (2000) (federal Violence Against Women Act case) (discussing the “effects” and the “substantial effects” language in Lopez).

[96]. See Gonzales v. Raich, 545 U.S. 1, 19–20 (2005) (discussing the scope of the federal power to regulate local marijuana cultivation and addressing the aggregated effects of local cultivation on interstate drug prices and the overall “substantial effect” on the national market).

[97]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (discussing the Affordable Care Act individual mandate and referring to aggregation of similar activities that jointly “substantially affect . . . interstate commerce”). The Sebelius case also illustrates the frequent attempts by the courts to resolve Commerce Clause power cases through some sort of distinction between a party’s “activity” as opposed to that party’s “passivity” in the relevant respect. See id. at 553–55.

[98]. The question of how much of an effect on interstate commerce is actually required is notoriously unresolved as among merely potential effects, slight actual or probable effects, and significant or substantial effects, whether actual or likely. See United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

[99]. See Wickard v. Filburn, 317 U.S. 111, 127–28 (1942).

[100]. See id. at 114–15.

[101]. See id. at 127.

[102]. Id. at 127–29.

[103]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 300–01 (1964).

[104]. See Gonzales v. Raich, 545 U.S. 1, 19, 22 (2005).

[105]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (“Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.”).

[106]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016) (referring not to any individual criminal activity, but to “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce” and to a “‘class of activities’ that in the aggregate substantially affect interstate commerce”).

[107]. See infra Part III.

[108]. See Sebelius, 567 U.S. at 553–55.

[109]. See, e.g., Jones v. United States, 529 U.S. 848, 859 (2000); Russell v. United States, 471 U.S. 858, 861 (1985).

[110]. See infra Part III.

[111]. Champion v. Ames (The Lottery Case), 188 U.S. 321, 327–28 (1903) (discussing the interstate transportation of foreign lottery tickets as, supposedly, “confessedly injurious to the public morals”).

[112]. Caminetti v. United States, 242 U.S. 470, 491 (1917) (referring to “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses”).

[113]. Cleveland v. United States, 329 U.S. 14, 19 (1946) (holding that the interstate commerce power “may be used to defeat what are deemed to be immoral practices,” despite the resemblance in the actual underlying federal legislative motive to the exercise of state police powers).

[114]. See, e.g., Heart of Atlanta Motel v. United States , 379 U.S. 241, 250, 256–57 (1964) (referring respectively to the “fundamental object” of vindicating “personal dignity;” to “immoral and injurious use” of the channels of interstate commerce; and to “legislating against moral wrongs” as, on a mere rational basis review, clearly permissible aims under the Commerce Clause).

[115]. This is despite the inevitable broader federalism issues. See Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342 (1914) (discussing the permissibility of federal regulation of intrastate rail freight rates where necessary to the proper regulation of interstate rates).

[116]. See infra Part IV.

[117]. See infra notes 122–132 and accompanying text.

[118]. See infra notes 133–145 and accompanying text.

[119]. See infra notes 146–153 and accompanying text.

[120]. See infra notes 154–167 and accompanying text.

[121]. For background references, see Geoffrey R. Stone et al., Constitutional Law 177–81 (8th ed. 2018); see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016).

[122]. See Ray Sorenson, Vagueness, Stan. Encyclopedia Phil. (Apr. 5, 2018), https://plato.
stanford.edu/entries/vagueness [https://perma.cc/UMA3-ZMLA].

[123]. See id. The philosophers’ debate whether any boundary case has a genuinely right classification—for example, either bald, or else not bald—even if that right answer is unknowable to us. For this debate, see generally Timothy Williamson, Précis of Vagueness, 57 Phil. & Phenomenological Res. 921 (1997) (referring to Timothy Williamson, Vagueness (1994)); Timothy Williamson & Peter Simons, Vagueness and Ignorance, 66 Proc. Aristotelian Soc’y 145 (1992); Timothy Williamson, Wright on the Epistemic Conception of Vagueness, 56 Analysis 39 (1996). More broadly, see Timothy A.O. Endicott, Vagueness in Law 57–75 2000).

[124]. See Bertrand Russell, Vagueness, 1 Australasian J. Psych. & Phil. 84, 84 (1923).

[125]. See id. at 88.

[126]. For background, see Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Calif. L. Rev. 509, 516 (1994).

[127]. See generally Delia Graff Fara, Shifting Sands: An Interest Relative Theory of Vagueness, 28 Phil. Topics 45 (2000).

[128]. See Keith C. Culver, Varieties of Vagueness, 54 U. Toronto L.J. 109, 111 (2004). For a sense of Dworkin’s moral right-oriented approach to legal vagueness, see generally Ronald Dworkin, No Right Answer?, in Law, Morality & Society: Essays in Honour of H.LA. Hart 58 (Clarendon Press ed. 1977).

[129]. For elaboration, see infra Part IV.

[130]. See, e.g., Gibbons v. Ogden, 22 U.S. 1 (1824) for the historical intent theory adopted by Chief Justice Marshall throughout the case.

[131]. See generally Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1 (2010) (discussing the then contemporary meaning of “commerce” as not confined narrowly to economic matters, but as also including social interactions beyond business or trade that pose collective action problems); Randy E. Barnett, Jack Balkin’s Interaction Theory of “Commerce,” 2012 Ill. L. Rev. 623 (discussing the then contemporary usage of “commerce” as, in practice, not including even economic production, let alone social interaction more broadly); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001) (arguing “commerce” originally meant something akin to the exchange of goods and services); Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987); Robert G. Natelson & David Kopel, Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Mich. L. Rev. First Impressions 55, 56 (2010) (discussing the contemporary understandings of “commerce” in both ordinary and legal contexts as encompassing “mercantile trade and traditionally associated activities” as the primary meaning). For a reading of a nearly contemporaneous essay by David Hume that offers no unequivocal evidence either way, see generally David Hume, Of Commerce, in Selected Essays 154 (Stephen Copley & Andrew Edgar eds., Oxford Univ. Press 2008).

[132]. See supra note 131. Fittingly, Dr. Samuel Johnson’s A Dictionary of the English Language, as of 1755, offers both a relatively broad and a relatively narrow understanding of the meaning of “commerce.” See Samuel Johnson, A Dictionary of the English Language 41718 (1755), available at https://johnsonsdictionaryonline.com/commerce-noun [https://perma.cc/UF9Y-5TPG]. To the extent that the disputes focus on differences between economic and noneconomic affairs, see David M. Driesen, The Economic/Noneconomic Activity Distinction Under the Commerce Clause, 67 Case W. Res. L. Rev. 337, 338 (2016) (“Scholars agree that Lopez and Morrison offer no guidance about how to apply the economic/noneconomic distinction, leaving lower courts adrift.”).

[133]. See supra notes 89–97 and accompanying text.

[134]. See generally John Stuart Mill, On Liberty & Utilitarianism (Wordsworth 2016) (1859).

[135]. See id. at 15, 16, 83; see also id. at 87 (referring to “self-regarding conduct” and to “purely personal conduct”).

[136]. Id. at 78.

[137]. See id. at 79, 81, 83.

[138]. At least without their valid consent. See id. at 14, 78, 81, 97.

[139]. Id. at 78, 79, 97. For a classic discussion of the distinction between affecting others and affecting their interests, see J.C. Rees, A Re-Reading of Mill On Liberty, in Limits of Liberty: Studies of Mill’s On Liberty 87, 93 (Peter Radcliff ed., 1966).

[140]. Mill, supra note 134, at 84; see also id. at 15 (referring to causing “evil” to others).

[141]. See id. at 16 (focusing on “harm” to others).

[142]. Id. at 85, 97. For a sense of the critical accounts of these distinctions and their value, see David O. Brink, Mill’s Progressive Principles 173–90 (2013); John Gray, Mill On Liberty: A Defence 48–57 (2d ed. 1996) (critiquing the approach of Rees, supra note 139); Dale E. Miller, J.S. Mill 117–32 (2010); Jonathan Riley, Mill On Liberty 98–102 (1998); C.L. Ten, Mill On Liberty 52–67 (1980); David O. Lyons, Liberty and Harm to Others, in Mill’s On Liberty: Critical Essays 115 (Gerald Dworkin ed., 1997); Ben Saunders, Reformulating Mill’s Harm Principle, 125 Mind 1005-06 (2016) (emphasizing consent or the lack of consent, as opposed to harm).

[143]. See, e.g., United States v. Lopez, 514 U.S. 549, 557–58 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

[144]. See, e.g., United States v. Morrison, 529 U.S. 598, 609, 612, 615; Lopez, 514 U.S. at 558–59 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

[145]. Lopez, 514 U.S. at 559; see also United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

[146]. See, e.g., supra note 22; Jones v. United States, 529 U.S. 848, 856–57 (2000); Russell v. United States, 471 U.S. 858, 860–62 (1985); see also Bond v. United States, 572 U.S. 844, 866 (2014) (on the courts’ reluctance to broadly interpret a federal criminal statute to impinge upon matters traditionally allocated to state regulation, given the value of federalism, unless Congress has made a “clear statement” to the contrary).

[147]. See, e.g., supra note 146.

[148]. Consider the disputes over the proper characterizations of targeted buildings and of organizational relationships. For background, see United States v. Laton, 352 F.3d 286, 298–30 (6th Cir. 2003) (citing United States v. Rayborn, 312 F.3d 229, 234 (6th Cir. 2002); United States v. Terry, 257 F.3d 366, 369–70 (4th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001)); United States v. Lamont, 330 F.3d 1249, 1255–57 (9th Cir. 2003); United States v. Rea, 300 F.3d 952, 960–61 (8th Cir. 2002); United States v. Tush, 151 F. Supp. 2d 1246, 1250–1254 (D. Kan. 2001).

[149]. See supra note 148; see also United States v. Corum, 362 F.3d 489, 493 (8th Cir. 2004) (“It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.”). Realistically, the degree of any judicial tendency to stretch the idea of interstate commercial linkage may reflect, in some cases, the sheer gravity of any charged criminal activity.

[150]. See supra notes 147–148.

[151]. See, e.g., Jonathan Glover, Causing Death and Saving Lives 95–97 (1990) (discussing different sorts of omissions and passivities); Peter Davson-Galle, Killing and Relevantly Similar Letting Die, 15 Applied Phil. 199 (1998); Helga Kuhse, Critical Notice: Why Killing Is Not Always Worse—And Is Sometimes Better—Than Letting Die, 7 Cambridge Q. Healthcare Ethics 371 (1998); Xiaofei Liu, A Robust Defense of the Doctrine of Doing and Allowing, 24 Utilitas 63 (2012); E.J. Lowe, Active and Passive Euthanasia: An Objection, 55 Phil. 550 (1980); Joseph Raz, The Active and the Passive, 71 Aristotelian Soc’y Supplementary Volume 211 (1997); Fiona Woollard & Frances Howard-Snyder, Doing vs. Allowing Harm, Stan. Encyclopedia of Phil. (Nov. 1, 2016), https://plato.stanford.
edu/entries/doing-allowing [https://perma.cc/HKP5-M9ST]. Very roughly, the more one cares about actual consequences, as distinct from the state of mind of a party, the less value in general will one tend to see in the act versus passivity or omission distinction. Of course, we can also imagine omissions or passivities that are clearly intended to result in great harm.

[152]. Nat’l Fed’n Indep. Bus. v. Sebelius, 567 U.S. 519, 555 (2012).

[153]. However rarely any entity might be thus motivated, given the availability of insurance and of state-level arson statutes.

[154]. The leading aggregation case is Wickard v. Filburn, 317 U.S. 111 (1942). See generally Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719 (2003) (discussing Filburn and its legacy).

[155]. See Wickard, 317 U.S. at 127–28.

[156]. See United States v. Morrison, 529 U.S. 598, 613 (2000).

[157]. See Gonzales v. Raich, 545 U.S. 1, 17–22 (2005).

[158]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016).

[159]. See United States v. Hill, 927 F.3d 188, 194 (4th Cir. 2019) (noting Hill’s battery as not in itself affecting the Amazon Center’s ability to meet any of its measured deadlines or quotas).

[160]. See Morrison, 529 U.S. at 613. The degree of deference due from courts to congressional findings, or the effects of the absence of such congressional findings, in the context of aggregation issues also varies noticeably. See id. at 614.

[161]. See, e.g., Raich, 545 U.S. at 22; Taylor, 136 S. Ct. at 2080; see also Perez v. United States, 402 U.S. 146, 154 (1971) (“Where the class . . . is within the reach of the federal power, the courts have no power to ‘excise, as trivial, individual instances of that class.’” (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)).

[162]. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 179–80 (1998). Of course, the very idea of a “substantial” effect, whether through aggregation or not, partakes of vagueness in unusual measure. See generally R. George Wright, Substantial Burdens in the Law, 46 Sw. L. Rev. 1 (2016) (exploring this vagueness at length).

[163]. See Taylor, 136 S. Ct. at 2081–82 (attempt to rob prosecuted under the Hobbs Act).

[164]. There were obviously, in 1942, many U.S. wheat farmers. Some percentage of them participated in the relevant price support and quota program. And some unspecified percentage of those farmers may have acted in a way either loosely or else closely similar to Roscoe Filburn in Filburn. And every Commerce Clause ruling is of course an incentive to change or maintain one’s present conduct.

[165]. For background, see Dominic Hyde & Diana Raffman, Sorites Paradox, Stan. Encyclopedia of Phil. (Mar. 26, 2018), https://plato.stanford.edu/entries/sorites-paradox [https://perma.cc/YFQ4-DR2G].

[166]. See id.

[167]. For universalizability, or a “what if everyone did that?” question, as a possible test for the morality of particular acts, see Immanuel Kant, Groundwork of the Metaphysics of Morals 71 (H.J. Paton trans. 1948) (Harper ed. 1964) (1785); see also Brad Hooker, Ideal Code, Real World 188–89 (2000)) (focusing on the expected value of rules if they were internalized by the “overwhelming majority”); Kent Bach, When to Ask, “What If Everyone Did That?,” 37 Phil. & Phenomenological Res. 464 (1977); Michael Robbins, The Fallacy of “What If Everybody Did That?,” 6 Sw. J. Phil. 89 (1975). For a broader discussion of aggregation problems in general, see Iwao Hirose, Moral Aggregation (2015); Larry S. Temkin, Rethinking the Good: Moral Ideals and the Nature of Practical Reasoning 23-161 (2015).

[168]. See supra notes 122–132 and accompanying text.

[169]. See supra notes 133–145 and accompanying text.

[170]. See supra notes 146–153 and accompanying text.

[171]. See supra notes 154–167 and accompanying text.

[172]. If we cannot readily decide whether to go out for the evening or else to stay home, it may be that taking either option would likely produce roughly equally overall value results.

[173]. The classic citation in the political science literature is Murray Edelman, The Symbolic Uses of Politics (2d ed. 1985). For a discussion of one element of our focus herein, see Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool For Criminal Enforcement?, 80 B.U. L. Rev. 1227, 1247–48 (2000).

[174]. For discussion, see Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“At the most general level, expressive theories tell actors . . . to act in ways that express appropriate attitudes toward various substantive values.”) (discussing “the pervasively expressive character of much of the law”); Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339, 339 (2000) (“A strict focus on sanctions . . . obscures how law can otherwise influence behavior. Legal Theorists sometimes posit that law affects behavior ‘expressively’ by what it says rather than by what it does.”); Cass R. Sunstein, On The Expressive Function of the Law, 144 U. Pa. L. Rev. 2021, 2022 (1996) (“Many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law.”). If the idea of an expressive function of the law is understood too broadly, however, the idea loses its distinctive interest value. See Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1364 (2000); Steven D. Smith, Expressivist Jurisprudence and the Depletion of Meaning, 60 Md. L. Rev. 506, 511 (2001) (“[T]he claim that law expresses meaning is . . . so universally recognized that in itself it can hardly amount to any distinctive jurisprudential perspective . . . .”).

[175]. See, e.g., the emotionally charged flag burning protest case of Texas v. Johnson, 491 U.S. 397, 410–11 (1989).

[176]. See Anderson & Pildes, supra note 174, at 1504.

[177]. See, e.g., Alex Geisinger & Ivan E. Bodensteiner, An Expressive Jurisprudence of the Establishment Clause, 112 Penn. St. L. Rev. 77 (2007).

[178]. See, e.g., Kitty Richards, An Expressive Theory of Tax, 27 Cornell J.L. & Pub. Pol’y 301 (2017).

[179]. For the classic source, see generally Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965). For discussion, see generally Bernard E. Harcourt, Joel Feinberg On Crime and Punishment: Exploring the Relationship Between the Moral Limits of the Criminal Law and the Expressive Function of Punishment, 5 Buff. Crim. L. Rev. 145 (2001); Susan A. Bandes, All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty, 116 Mich. L. Rev. 905 (2018).

[180]. Beale, supra note 173, at 1254.

[181]. Something akin to this point, and the underlying distinction among kinds of symbolic adjudications, is discussed in McAdams, supra note 174, at 339 n.2 (citing Lewis A. Kornhauser, No Best Answer?, 146 U. Pa. L. Rev. 1599, 1624–25 (1998)). We assume, of course, that the Commerce Clause case in question does not actually involve any actionable violation of any fundamental constitutional right. Any such case should be adjudicated on precisely those fundamental constitutional right grounds.

[182]. For background, see generally James Griffin, On Human Rights (2008); James W. Nickel, Making Sense of Human Rights (1987); Henry Shue, Basic Rights (2d ed. 1996).

[183]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019); see also infra Part I.

[184]. See Hill, 927 F.3d at 193. Consider also the notorious racially-based hate crime case of United States v. Roof, 225 F. Supp. 3d 438 (D.S.C. 2016) (applying the federal Church Arson Act).

[185]. See Hill, 927 F.3d at 194. But again, there could still be justification for a Commerce Clause-based federal prosecution, for national-level symbolic and expressive purposes, even if the federal and state level and penalties were similar.

[186]. For an authoritative account of the effects of governmental sexual orientation discrimination under an equal protection and substantive due process analysis, see generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[187]. For the classic exposition of the relationship of basic physical safety, bodily integrity in public spaces, and bodily security to even minimal well-being, see Thomas Hobbes, Leviathan 183–86 (C.B. MacPherson ed., 1968) (1651). For human rights references to physical security of the person, see Griffin, supra note 182, at 193 (“We have a right to life and to some form of security of person.”); Nickel, supra note 182, at 86; Shue, supra note 182, at 20 (“[P]eople have a basic right to physical security—a right that is basic not to be subjected to murder, torture, mayhem, rape, or assault.”); see also Jeremy Waldron, Security as a Basic Right (After 9/11), in Global Basic Rights 207, 211 (Charles R. Beitz & Robert E. Goodin eds., 2009).

[188]. See Wickard v. Filburn, 317 U.S. 111 (1942).

[189]. See Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2535 (codified as amended at 21 U.S.C. § 343 (2018)).

[190]. For a broad critique, see generally Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (2014); R. George Wright, The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?, 71 Mercer L. Rev. (forthcoming 2020). For a number of entertaining examples from other areas of federal law, most with a Commerce Clause basis, see Jason Pye, 19 Ridiculous Federal Criminal Laws and Regulations, Freedom Works (January 14, 2016), https://www.freedomworks.org/content/19-ridiculous-federal-criminal-laws-and-regulations [https://perma.cc/S67P-TGP2]. More broadly, see generally Mike Chase, How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender (2019) (drawing from https://twitter.com/crimeaday [https://perma.cc/PJ8P-UK6S]). Consider also whether the entirely intrastate Delhi Sands Flower-Loving Fly is somehow related to the values underlying fundamental constitutional or human rights and could not be adequately protected by the State of California. See Nagle, supra note 162 (discussing the diverging opinions in Nat’l Assn. of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)).

[191]. See Geoffrey R. Stone et al., Constitutional Law 175–81 (8th ed. 2018); see also A.E. Dick Howard, The Values of Federalism, 1 New Eur. L. Rev. 143 (1992); Robert P. Inman, Federalism’s Values and the Value of Federalism (Nat’l Bureau of Econ. Research, Working Paper No. 13735, 2008).

[192]. While it is certainly possible that we could all be mistaken about fundamental constitutional or human rights, epistemic humility is a virtue not only for federal decisionmakers, but for state-level decisionmakers as well. For useful discussion, see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016). And while elements of our own proposal herein are certainly vague, it is important to recognize that the overall consequences of vagueness may, depending upon context, be harmful; modest; or even beneficial. The vagueness of terms such as “fundamental constitutional rights” and “recognized constitutional rights” can, if desired, be reduced by any authoritative listing of such rights. Persons can certainly continue to debate which rights should be on the authoritative list, but the adopted list will not count as itself damagingly vague. Of course, referring to such rights as “in the neighborhood,” or “lurking,” or being loosely suggested but not violated in a given case invokes deliberately vague ideas. However, vagueness in this context is not only inevitable, but deeply valuable; it distinctively sensitizes courts to the possibility of, in a proper case, symbolically advancing the most important moral and legal values of which we know: those of recognized basic rights.