In 1923, the Supreme Court issued a series of decisions upholding a state’s right “to deny to aliens the right to own land within its borders.”1 Beginning with Terrace v. Thompson,2 the Court sustained a slew of “alien land laws”3 aimed at immigrants of Asian descent.4 The following year, Congress cut off immigration from Asian countries entirely.5 A century later, fears reminiscent of the Yellow Peril have resurfaced,6 sparking a new wave of restrictions.7 Amid rising geopolitical tensions and the COVID-19 pandemic,8 “[m]ore than thirty states have introduced . . . legislation restricting Chinese property ownership.”9
Recently, in Shen v. Simpson,10 the Eleventh Circuit held that rational basis review, not strict scrutiny, applied to the alienage-based restrictions in Florida’s Senate Bill 26411 (SB 264), under either Terrace or, alternatively, on the theory that strict scrutiny for alienage is limited to lawful permanent residents (LPRs).12 Shen’s treatment of precedent is internally inconsistent and doctrinally unsound. First, the court strained to revive Terrace from “the dustbins of history”13 despite a century of intervening precedent.14 Second, its alternative holding — that strict scrutiny is limited to LPRs — finds no support in Supreme Court precedent, which cuts the other way. Finally, by engineering rational basis either way, Shen invites states to enact restrictions that predictably ensnare citizens, LPRs, and entire communities alike.
In 2023, Florida passed SB 264, which restricts land acquisition by persons and entities associated with a “foreign country of concern.”15 SB 264 operates by three key provisions: It bars certain foreign domiciliaries from acquiring property (purchase ban),16 mandates affidavits certifying compliance with the statute (affidavit requirement),17 and requires registration of covered transactions (registration requirement).18 Notably, it singles out the People’s Republic of China,19 barring Chinese domiciliaries from owning any real property interest, “regardless of [that property’s] proximity to military installations or critical infrastructure.”20
In June 2023, Yifan Shen, Yongxin Liu, Zhiming Xu, Xinxi Wang, and Multi-Choice Realty, LLC, filed a pre-enforcement challenge to SB 264 in the Northern District of Florida.21 The four individual plaintiffs were Chinese nationals who either owned property in Florida or planned to purchase some in the future22: Three were on visas and the fourth was seeking asylum.23 The plaintiffs raised four claims: that SB 264 violated the Equal Protection Clause, constituted a discriminatory housing practice under the Fair Housing Act,24 was unconstitutionally vague under the Due Process Clause, and was preempted by federal law governing foreign investment.25
On August 17, 2023, the district court denied the plaintiffs’ motion for a preliminary injunction.26 Judge Winsor first conceded that SB 264 “facially classif[ies] by alienage,”27 but concluded that Terrace was “directly on point” because the statute regulated property ownership.28 Even if the Supreme Court might “not decide the Terrace Cases today the way it did in 1923,” Judge Winsor believed lower courts bound by that precedent.29 Applying rational basis under Terrace,30 he deferred to Florida’s asserted interest in protecting agriculture and critical infrastructure under the more lenient standard.31
On February 1, 2024, a unanimous panel32 of the Eleventh Circuit granted a partial injunction pending appeal, temporarily halting enforcement of SB 264 against two of the five plaintiffs.33 The court found that the plaintiffs had demonstrated that they were likely to succeed on their preemption claims,34 but did not reach the Equal Protection issue.35 Concurring, Judge Abudu would have enjoined SB 264 on Equal Protection grounds.36
That partial victory proved short-lived. On November 4, 2025, a new panel of the Eleventh Circuit affirmed the district court’s denial of a preliminary injunction.37 Writing for the divided panel, Judge Luck38 first concluded that none of the plaintiffs had standing to challenge the purchase restriction because they were either domiciled in Florida, and thus outside the statute’s scope,39 or grandfathered in.40 The court then turned to the remaining provisions.
While the panel found that at least one plaintiff had standing to challenge the affidavit requirement,41 it concluded that the provision did not discriminate based on alienage as it “applie[d] to every ‘buyer of real property’ in Florida” regardless of citizenship status.42 In contrast, the registration requirement expressly classified by alienage, exempting citizens and LPRs.43 The question was what level of scrutiny should apply.
Judge Luck offered two grounds for applying rational basis. First, he deemed the registration requirement analogous to the ownership ban upheld in Terrace, reasoning that the authority to prohibit noncitizens from owning land necessarily includes “the lesser power to require noncitizens to register their ownership.”44 SB 264 thus fell within Terrace’s exception to the general rule that alienage classifications warrant strict scrutiny.45 Second, even assuming — as the dissent argued46 — that later cases had “effectively abrogated Terrace,”47 the court reasoned that because SB 264’s registration requirement exempted citizens and LPRs, it burdened only “nonimmigrant aliens,” who fall outside the general rule.48 Applying rational basis, Judge Luck deferred to Florida’s asserted “food, individual, and national security concerns” as “a ‘reasonably conceivable’ basis for” the law.49
The panel rejected the remaining claims. It refused to credit plaintiffs’ claim that SB 264’s use of “domicile” served as a proxy for national origin — a suspect classification that would trigger strict scrutiny.50 On the Fair Housing Act claim, it found that the registration and affidavit requirements were “not discriminatory housing practices.”51 On vagueness, it held that the statute’s key terms were either defined with sufficient specificity or constituted established legal terms of art, thereby providing fair notice.52 And on preemption, the court concluded that SB 264 did not conflict with and “[a]t most . . . complement[ed] the federal foreign investment review regime.”53
Dissenting, Judge Wilson denounced Terrace as “shameful precedent.”54 He would have adhered to “more than a half-century of post-Civil Rights era precedent” and struck down the statute under strict scrutiny.55
Shen’s selective treatment of precedent quietly reshaped the equal protection framework for alienage, clearing a path for states to adopt restrictions that sweep well beyond the targeted class. First, by invoking Terrace, Shen revived a doctrinal relic that the Supreme Court’s modern equal protection jurisprudence has effectively displaced. In upholding Washington’s alien land statute, Terrace declared that “[t]he quality and allegiance of those who own, occupy and use the farm lands within [a state’s] borders are matters of highest importance and affect the safety and power of the State itself.”56 The Court’s reasoning drew on common law principles tracing back to the English feudal system’s linkage of “allegiance with landholding,”57 under which foreigners had to pledge fealty to the Crown to acquire land.58
Despite its influence, Terrace started to unravel two decades after it was decided, as the Supreme Court moved toward more rigorous review of alien land laws in the post–World War II period.59 In Oyama v. California,60 the Court set aside an escheat proceeding against Fred Oyama, a U.S.-born citizen of Japanese descent, under California’s Alien Land Law because the statute impermissibly presumed his land ownership invalid based on his father’s ancestry.61 That same Term, the Court invalidated California’s denial of commercial fishing licenses to Japanese immigrants in Takahashi v. Fish & Game Commission,62 rejecting the state’s claim that it could reserve economic opportunities for citizens.63 While neither decision formally displaced Terrace,64 they repudiated its assumptions of alien loyalty, capability, and civic participation.65
The shift culminated in Graham v. Richardson,66 which overhauled the equal protection framework for alienage.67 There, the Court formally established aliens as a suspect class, emphatically declaring alienage classifications “inherently suspect and subject to close judicial scrutiny.”68 Two years later, in Sugarman v. Dougall,69 the Court invalidated a New York statute restricting civil service employment, holding that discrimination against aliens is permissible only with respect to positions “that go to the heart of representative government.”70 These landmark decisions left little room for Terrace to persist as a freestanding exception.
Terrace’s factual and constitutional premises have likewise unraveled, undermining any remaining justification for its resurrection. As a practical matter, land ownership is no longer a meaningful proxy for political participation.71 In an era of investment properties and interstate mobility, property often bears little relationship to membership in the political community.72 Nor is the decision’s state-sovereignty rationale as persuasive today. The federal government’s plenary authority over immigration, naturalization, and foreign relations leaves less room for states to define political allegiance through property law.73 Taken together, Terrace appears “overruled in the court of history.”74
Second, Shen’s alternate holding — that strict scrutiny applies only to LPRs75 — finds no support in Supreme Court precedent. The panel imported the holding from Estrada v. Becker,76 where the Eleventh Circuit applied rational basis to a Georgia policy that denied university admission to undocumented citizens granted deferred action.77 Shen took that logic further, extending Estrada to lawful visa holders. The panel justified its ruling by characterizing LPRs as “virtual citizens,” who lack the political capacity to protect their rights through ordinary democratic processes.78 Nonimmigrant aliens, by contrast, are “subject to a variety of restrictions”79 given “their temporary connection to this country.”80 Strict scrutiny protection is just another thing they must do without.
Shen’s LPR-only rule inverts Graham’s core logic: Whereas Graham grounded strict scrutiny in the political marginalization of noncitizens,81 Shen treats proximity to citizenship as a reason to withhold protection from non-LPRs,82 despite their greater vulnerability.83 Moreover, ever since the Supreme Court declared aliens a suspect class, it has never limited that protection to LPRs.84 On the contrary, outside the context of Sugarman (political functions)85 and Terrace (land ownership),86 the Court has never relegated non-LPRs to ordinary rational basis review.87 At a minimum, it has applied some form of intermediate scrutiny, and on facts strikingly similar to Estrada.
Plyler v. Doe88 is case in point. There, the Court applied heightened rationality review to strike down a Texas statute that prohibited undocumented children from attending public school.89 While Plyler involved unique factors — children, whose legal status is largely beyond their control, and education, a core civic interest90 — the case demonstrates a broader principle: Constitutional scrutiny does not collapse entirely into rational basis as individuals move further from formal political membership. Indeed, Plyler is the sole instance where the Supreme Court applied less than strict scrutiny to an alienage classification, yet the Shen court does not cite it at all.91 But if undocumented aliens warrant heightened review under Plyler, why do the Shen plaintiffs — who have lawful presence and work or student authorization — receive only rational basis?
This disparity reflects Shen’s selective treatment of precedent. The court insisted that it was bound to follow Terrace, however “‘moth-eaten’ [its] foundation,”92 because only the Supreme Court may “bury[] its own decisions.”93 Yet, it showed little hesitation in sidelining key equal protection cases to reach the same result. By rigidly adhering to outdated precedent while narrowing modern precedent from below,94 Shen effectively reshapes the governing framework without acknowledging that it is doing so.
Finally, Shen’s insistence on rational basis invites states to enact sweeping restrictions while evading judicial scrutiny. This approach is especially destabilizing when states invoke national security because such interests are capacious and difficult to disprove.95 Rationality review ensures that courts will rarely question whether such exclusions are necessary, narrowly tailored, or free from animus.96 The risk is legitimizing the same nativist fears that historically animated alien land laws.97
SB 264 illustrates this danger. Although public messaging and the legislative record reflected a singular focus on China,98 the Shen majority refused to credit racist undertones as “a motivating factor”99 for the legislation. During state Senate hearings, bill sponsor Jay Collins disparaged the bill’s target as “people who just don’t believe in the American dream and the American way of life[,] . . . our thoughts or ideals[,] . . . and [our] principles.”100 Representative Daniel Alvarez joked that the disappearance of Kmart was “probably the Chinese fault too.”101 These remarks echo a familiar trope.102 By equating “Asians” with foreign “agents,” SB 264 “exacerbates long held perceptions of Asian Americans as perpetual foreigners, who hold loyalty to their ancestral homelands rather than the United States.”103 Nominally framed as a national security measure, SB 264 shields cultural and ideological suspicion from scrutiny.104
Shen’s LPR carve-out also produces perverse incentives. A state need only exempt LPRs to avoid heightened review, even when the law’s impact extends far beyond the targeted group.105 On the ground, SB 264 has sown widespread confusion. Faced with a complex statute carrying criminal penalties,106 sellers and real estate agents have reportedly avoided transactions with Asian clients out of an abundance of caution.107 Advocacy groups likewise warn that the law will “cast an undue burden of suspicion on anyone . . . whose name sounds remotely Asian.”108 By exempting LPRs, SB 264 feigns neutrality while operating as broadly as a law targeting the entire Asian community — all without triggering heightened scrutiny.
This practical reality underscores the broader stakes of Shen. The panel’s selective application of precedent quietly transforms Graham’s protection for aliens into a rule about immigration status. Graham is reduced to “resident aliens”109 — a term the Court itself did not use — Terrace is resurrected; Plyler forgotten. Century-old precedent must be followed to the letter, while inconvenient modern precedent may be distinguished away. Either path leads to rational basis.
Many non-LPRs, including long-term visa holders, refugees, and parolees, live in the United States for years, pay taxes, and are deeply integrated into local economies,110 yet under Shen they are treated no differently than tourists under rational basis review. The cost is not merely doctrinal incoherence but the revival of assumptions about alienage and belonging that the modern equal protection framework was designed to displace.111