Marouf & Casado Pérez: Property and Prejudice

In Property and Prejudice, Fatma Marouf and Vanessa Casado Pérez (both Texas A&M Law) examine the newest wave of state “alien land laws,” which restrict certain noncitizens and foreign entities from owning real property in the United States.

First, the authors place the new wave of alien land laws in their historical context, discussing the emergence of earlier laws that also restricted land ownership by noncitizens ineligible for citizenship. While many of these earlier laws were repealed or otherwise rendered ineffective by changed circumstances, as recently as 2022, Marouf and Casado Pérez document how a new wave of alien land laws have emerged. The authors argue that, like their predecessors, these laws are often rooted in xenophobia, but they also have unique characteristics including an emphasis on national security through restrictions based on nationality and proximity to military bases, the targeting of corporate ownership structures, and harsher criminal penalties. The authors maintain that these new laws are ineffective at achieving their asserted goals of protecting national security, food security, and preventing absentee ownership, making them a poor means-end fit because there is no rational relationship between the asserted objectives and the means being used to achieve them.

The authors also evaluate possible challenges to these new state laws. Some older Supreme Court decisions have upheld earlier alien land laws, and these precedents complicate current constitutional challenges despite other changes in immigration and equal protection laws. Nonetheless, the article provides insight into potential avenues to challenge the new laws including utilization of federal statutes, specifically the Fair Housing Act and the Civil Rights Act, which prohibit discrimination. Additionally, the authors explore how the Equal Protection Clause and federal preemption may provide arguments to challenge the laws.

Ultimately, Marouf and Casado Pérez caution that upholding exclusionary laws that draw distinctions on national origin or citizenship risk racial or ethnic profiling and may exacerbate discrimination against individuals who are already vulnerable.