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A Warning Order from Florida
How a new state law fosters xenophobia, harms America's national security, and offers an ominous preview of a possible DeSantis presidency
Chinese Communist Party (CCP)-led China has increased agricultural land acquisition in the United States in ways that present national security risk which has resulted in bipartisan responses such as proposed federal legislation to exercise greater oversight of foreign agricultural investment and prohibit acquisition of agricultural land by Chinese-controlled entities or persons.
Despite consensus on a problem set and broad-based agreement on solutions, Florida Governor and Republican presidential candidate Ron DeSantis co-opted the issue to, once again, use race to enhance his appeal to his base, increasing our national security risk along the way. Florida, which only recently did away with its version of discriminatory alien land laws, has an expansive new law on the books threatening imprisonment to anyone involved in property transactions that violate new prohibitions on Chinese property ownership in Florida—agricultural, commercial, or residential.
Forty years ago, Fred Korematsu’s conviction was overturned.
Mr. Korematsu, a Japanese-American citizen born and raised in the United States and innocent of any subterfuge against his country, refused to submit to the federal government’s internment order that required people of Japanese ethnicity to report to and remain at detention camps following the December 7, 1941 attack on Pearl Harbor. Six months after Pearl Harbor, the FBI arrested Mr. Korematsu and federal prosecutors convicted him at trial whereupon he was forcibly sent to an internment camp.
A little over two years later, the United States Supreme Court in 1944 affirmed Mr. Korematsu’s conviction in a 6-3 ruling asserting that “military necessity” justified the government’s internment order targeting people of Japanese ethnicity.
Korematsu v. United States remains one of the most shameful, wrongly decided cases in the history of the Supreme Court. Justice Robert Jackson, writing in dissent in 1944, called it “legalization of racism” and this century, justices ranging from Antonin Scalia to Sonia Sotomayor and everywhere in between agree.
Florida’s New Law
Against this backdrop, consider a new law in Florida signed by DeSantis less than three weeks before announcing his presidential campaign. Senate Bill 264 relating to “Interests of Foreign Countries”—“SB 264”—became effective July 1 and, among other things, imposes restrictions on Florida property ownership by people from China, Russia, Iran, Syria, North Korea, Cuba, and Venezuela and singles out people of Chinese ethnicity for enhanced scrutiny and punishment. SB 264’s property ownership restrictions do not on their face apply to U.S. citizens, but the law does set cultural and legal preconditions for amendments to be made that could in more troubled times. DeSantis touts SB 264, passed with unanimous Republican support in both chambers, as an example of “taking action to stand against the United States’ greatest geopolitical threat—the Chinese Communist Party.”
That China, as led by the Chinese Communist Party, is a malign actor at home and abroad and specifically threatens the United States is indisputable. China presents a multi-faceted challenge aimed at diminishing the United States and undermining democratic, free market-based, rule of law governance systems. Direct threats to United States security that once were limited to threat/response planning scenarios such as People’s Liberation Army (PLA—the Chinese military) force projection through covert basing in central America have recently been revealed to be real and nearer—just off the coast of Florida.
So how does SB 264 thwart “the United States’ greatest geopolitical threat?”
By imposing a set of restrictions on Chinese nationals and Chinese-owned entities who own or seek to buy property in Florida and criminalizing violations of the restrictions. For example, a Chinese national who resides in China but wants to buy a vacation residence in Florida would only be able to purchase a parcel of less than two acres which must be more than five miles away from a military installation. The buyer also would have to attest to compliance with SB 264’s provisions, and even Florida real estate agents could be subject to enforcement action if they have knowledge that a transaction does not comply with the new law. Though SB 264’s restrictions apply to “countries of concern” in addition to China, SB 264 contains enhanced penalties for violations involving Chinese nationals or entities. If a noncompliant property transaction involves a Chinese national or entity, the violation is a felony rather than a misdemeanor and comes with a punishment that includes a potential term of imprisonment of up to five years.
Making Matters Worse
None of it makes the United States one bit safer or more secure. Property ownership has never been an insurmountable barrier to CCP-directed influence operations, intellectual property theft, economic espionage, or other intelligence activities, and the PLA does not need to rely on close proximity to project devastating kinetic force.
In fact, SB 264 makes the United States less safe and more insecure. DeSantis’ new anti-Chinese property law is merely performative, yet with dangerous consequences. As a presidential candidate, he can cite to it as evidence of being “tough on China,” as if he has prevented a modern day “fifth column” from infiltrating Florida, and avoid serious discussion of substantive solutions. What’s more, DeSantis’ continued targeting of ethnic minorities further frays a social fabric that is in dire need of mending if the United States is to withstand China’s challenges.
SB 264 will be struck down. A legal challenge on behalf of four ethnic Chinese and a real estate firm that works with Chinese nationals has already been filed in federal court in Florida. As the Statement of Interest filed in the case by the U.S. Department of Justice makes plain, the law is unconstitutional on its face and as applied, violating the Equal Protection Clause of the 14th Amendment to U.S. Constitution and the federal Fair Housing Act.
The fecklessness and unconstitutionality of SB 264 aside, its broader import is how xenophobia—in addition to being morally reprehensible, which is the obvious point—makes us less secure and more at risk both to external and internal threats.
Yet xenophobia is precisely part of the poisonous concoction that propels Donald Trump and his protégé DeSantis who hopes to inherit Trump’s supporters someday.
What DeSantis Could Do But Won’t
Our present state of relative disunion is perhaps our greatest vulnerability, which the CCP exploits.
The most important, powerful, and positive “action” DeSantis could take in his current roles as Governor and candidate to “stand against the United States’ greatest geopolitical threat” is to channel the Republicans’ most inspirational leader of the modern era and seek to unify Americans around shared values and aspirations.
For a moment when DeSantis began his first term in 2019, such action—rhetorical and substantive—seemed possible. For example, within the first 30 days of DeSantis’ first term as Governor in 2019, he pardoned the Groveland Four, proposed major water quality and environmental protection improvements, and struck a tone of civility. In other words, he took substantive action that sent substantive signals that he would transition from a pernicious race-baiting campaigner to a temperate governor for the vast majority of Floridians.
Five years’ evidence proves such signals were as ephemeral as smoke in the wind. DeSantis is both incapable of and disinterested in doing the one thing he could do to strengthen U.S. national security. To the contrary, he is intentionally divisive for his own personal and partisan ends.
No one should mistake the stakes in 2024. Emerging from Trump’s shadow is a darker force that has been more effective than Trump ever was at using state power to target non-white populations, and SB 264 is merely one of the more recent examples of, in Justice Jackson’s words, “legalization of racism.”
While SB 264 is not in the same category of state-sanctioned discrimination experienced by Mr. Korematsu and so many others of Japanese ethnicity, it is an early indicator of the type of president DeSantis would be in a crisis.
What would be threshold conduct (real or contrived) by the CCP, Ministry of State Security, or PLA for a President DeSantis to ignore the legacy of Korematsu and use federal power to categorically deprive Chinese-Americans of liberty? What would be the collateral consequences to all Asian-Americans whose personal security would be at risk as a result of inflamed passions? Speaking with law students in 2014, the late Justice Antonin Scalia said of Korematsu that the decision was wrong, “[b]ut you are kidding yourself if you think the same thing will not happen again….in time of war. It’s no justification, but it is the reality.”
Reality, of course, is what we make it. Justice Frank Murphy, another Korematsu dissenter, likened such categorical discrimination to “the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”
The United States does not need to destroy China to mitigate its threat, but China will advance its destructive goals if we have a president who governs like the CCP’s dictatorial tyrant governs China. Win without fighting. Sun Tzu would be proud.
Christopher J. Hunter served as a federal prosecutor with the U.S. Department of Justice and the U.S. Attorney’s Office for the Southern District of Florida and as an agent with the FBI. He resides in Florida.