Yifan Shen v. Commissioner, Florida Department of Agriculture and Consumer Services

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12737

____________________

YIFAN SHEN,

ZHIMING XU,

individuals,

XINXI WANG,

YONGXIN LIU,

an individual,

MULTI-CHOICE REALTY LLC,

a Limited Liability Corporation,

Plaintiffs-Appellants,

versus

COMMISSIONER, FLORIDA DEPARTMENT OF

AGRICULTURE AND CONSUMER SERVICES,

SECRETARY, FLORIDA DEPARTMENT OF ECONOMIC

OPPORTUNITY,

CHAIR, FLORIDA REAL ESTATE COMMISSION,

STATE ATTORNEY, 7TH JUDICIAL CIRCUIT,

STATE ATTORNEY, 9TH JUDICIAL CIRCUIT, et al.,

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2 Opinion of the Court 23-12737

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:23-cv-00208-AW-MAF

____________________

Before LUCK, LAGOA, and WILSON, Circuit Judges.

LUCK, Circuit Judge:

In May 2023, the Florida Legislature enacted Senate Bill 264,

titled Interests of Foreign Countries. See Ch. 2023–33, Laws of Fla.

SB 264 made seven significant changes to state law.

First, the new law prohibited the state government from

contracting with entities owned or controlled by the People’s Re-

public of China, if, as a result, the entity would gain “access to an

individual’s personal identifying information.” Fla. Stat.

§ 287.138(2). Second, SB 264 prevented the state government from

entering into agreements that give “an economic incentive” to en-

tities owned or controlled by China. Id. § 288.0071(2). Third, the

statute restricted medical records from being stored outside of the

United States or Canada. Id. § 408.051(3). Fourth, the new law

made it a first-degree felony to threaten or extort a person in Flor-

ida on behalf of China. Id. § 836.05(2). Fifth, SB 264 prohibited

persons who are domiciled in China, and who are not citizens or

lawful permanent residents of the United States, from purchasing

Florida real property. See id. § 692.204(1)(a). Sixth, the statute re-

quired persons who are domiciled in China, and who are not

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23-12737 Opinion of the Court 3

citizens or lawful permanent residents, to register real property

they already own. See id. § 692.204(4)(a). And seventh, the new

law made it so any person who purchases real property in Florida

must sign an affidavit swearing that she has complied with SB 264.

See id. § 692.204(6)(a).

This appeal involves the last three significant changes made

by SB 264. In the district court, the plaintiffs—four Chinese citizens

and a real estate brokerage firm—sought to enjoin the purchase re-

striction, the registration requirement, and the affidavit require-

ment because they violated the Equal Protection Clause, the Fair

Housing Act, the Due Process Clause, and federal law regulating

foreign investment in the United States. The district court denied

the plaintiffs’ motion for preliminary injunction because, although

the plaintiffs had standing to challenge the three provisions, they

were not substantially likely to succeed on the merits of their

claims.

After careful review, and with the benefit of oral argument,

we affirm the denial of the plaintiffs’ preliminary injunction motion

as to the registration and affidavit requirements. But we reverse

and remand for the district court to deny the preliminary injunc-

tion motion without prejudice as to the purchase restriction be-

cause none of the plaintiffs have shown they have standing to chal-

lenge that provision of SB 264.

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4 Opinion of the Court 23-12737

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. THE THREE PROVISIONS OF SB 264

We begin by describing the three provisions of SB 264 that

the plaintiffs sought to enjoin—the purchase restriction, the regis-

tration requirement, and the affidavit requirement. Starting with

the purchase restriction, it prohibits a person from purchasing or

owning “any interest, except a de minimus indirect interest, in real

property” in Florida if (1) the person is domiciled in China, (2) the

person is not a citizen or lawful permanent resident of the United

States, and (3) the person did not own “any interest” in the real

property before July 1, 2023. Id. § 692.204(1)(a)(4), (3). There’s an

exception. A natural person—that is, not a business association or

other entity—may “purchase one residential real property that is

up to [two] acres” as long as the residence isn’t located “on or

within [five] miles of any military installation,” and the purchaser

is in the United States on a non-tourist visa or has been granted

asylum. See id. § 692.204(2).

Next, the registration requirement directs property owners

to register their names and the addresses, parcel numbers, and legal

descriptions of any real property in which they owned “more than

a de minimus indirect interest,” but only if they are domiciled in

China and are not United States citizens or lawful permanent resi-

dents. Id. § 692.204(4)(a). A person domiciled in China also must

register her property if she (1) is not a United States citizen or law-

ful permanent resident, (2) owned or acquired more than a de min-

imus indirect interest in the real property before July 1, 2023, and,

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(3) the property is within ten miles of any “military installation” or

“critical infrastructure facility.” Id. § 692.203(3)(a).

Finally, the affidavit requirement mandates that all purchas-

ers of real property in Florida sign an affidavit stating that any pur-

chase made after July 1, 2023 complies with SB 264. Id.

§ 692.204(6)(a). SB 264 makes it a crime to violate any of those

three provisions. See id. § 692.204(8); see also id. § 692.203(8).

B. THIS CASE

Yifan Shen, Yongxin Liu, Zhiming Xu, and Xinxi Wang are

four Chinese citizens living in Florida without permanent immigra-

tion status. Shen and Liu have H1-B work visas. Xu first arrived in

the United States under a tourist visa and is currently seeking polit-

ical asylum. And Wang is here on a student visa.

Shortly after SB 264 was enacted, Shen, Liu, Xu, Wang and

Multi-Choice Realty LLC—a real estate broker “that primarily

serves Chinese-speaking clients in the United States, China, and

Canada”—sued six Florida officials charged with enforcing the new

law—the Commissioner of Agriculture, the Secretary of the De-

partment of Economic Opportunity, the Chairperson of the Florida

Real Estate Commission, and the State Attorneys for Florida’s Sev-

enth (Daytona Beach), Ninth (Orlando), and Eleventh (Miami) Ju-

dicial Circuits—in their official capacities. Together, the plaintiffs

brought four claims to enjoin the enforcement of the purchase re-

striction, the registration requirement, and the affidavit require-

ment.

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6 Opinion of the Court 23-12737

In their first claim, the plaintiffs alleged that the three provi-

sions violated the Equal Protection Clause because the purchase

restriction, the registration requirement, and the affidavit require-

ment unconstitutionally discriminated against “Chinese persons”

based on “race, ethnicity, color, alienage, and national origin.” In

their second claim, the plaintiffs alleged that the purchase re-

striction, the registration requirement, and the affidavit require-

ment violated the Fair Housing Act by discriminating against them

based on their race and national origin. According to the plaintiffs,

the Act invalidated the three provisions as discriminatory housing

practices.

The plaintiffs’ third claim alleged that the purchase re-

striction, the registration requirement, and the affidavit require-

ment were unconstitutionally vague under the Due Process Clause

because they did not “provide sufficient notice about which prop-

erty and persons [were] subject” to the three provisions. And, in

their fourth claim, the plaintiffs alleged that the “federal regimes

governing foreign affairs, foreign investment, and national secu-

rity, including [the Committee on Foreign Investment in the

United States] and [the Office of Foreign Assets Control],”

preempted the purchase restriction, the registration requirement,

and the affidavit requirement.

The plaintiffs also moved for a preliminary injunction. After

a hearing, the district court concluded that the plaintiffs had stand-

ing because at least one of them intended to engage in conduct “ar-

guably affected with a constitutional interest but proscribed by” the

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three provisions. But the district court denied the preliminary in-

junction motion because the plaintiffs failed to show a substantial

likelihood of success on the merits of their claims.

The plaintiffs appeal the denial of their preliminary injunc-

tion motion.

II. STANDARD OF REVIEW

“We review standing determinations de novo.” Dream Defs.

v. Governor of the State of Fla., 57 F.4th 879, 886 (11th Cir. 2023)

(quoting BBX Cap. v. Fed. Deposit Ins. Corp., 956 F.3d 1304, 1312

(11th Cir. 2020)). And we review for an abuse of discretion a district

court’s denial of a preliminary injunction. ACLU of Fla., Inc. v. Mi-

ami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). In so

doing, we review the court’s legal conclusions de novo but its find-

ings of fact for clear error. Scott v. Roberts, 612 F.3d 1279, 1289–90

(11th Cir. 2010) (citing This That & The Other Gift & Tobacco, Inc. v.

Cobb Cnty., Ga., 285 F.3d 1319, 1321 (11th Cir. 2002)).

III. DISCUSSION

“Because standing is a necessary component of our jurisdic-

tion,” we address it first. ACLU of Fla., 557 F.3d at 1190. Then, we

consider whether the district court abused its discretion in denying

the preliminary injunction motion.

A. STANDING

“Under Article III of the Constitution, federal courts may ex-

ercise jurisdiction only over ‘Cases’ and ‘Controversies.’” Dream

Defs., 57 F.4th at 886 (quoting U.S. Const. art. III, § 2). “To satisfy

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8 Opinion of the Court 23-12737

the case-or-controversy requirement, a plaintiff must have standing

to sue,” Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1083

(11th Cir. 2019), which she has if she “(1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the defend-

ant, and (3) that is likely to be redressed by a favorable judicial de-

cision,” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). It is “the

‘independent obligation’ of federal courts to ensure a case or con-

troversy exists as to each challenged provision even in a case where

the plaintiffs established harm under one provision of the statute.”

CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1273

(11th Cir. 2006) (citation omitted).

In other words, “standing is not dispensed in gross.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). A plaintiff

“must demonstrate standing for each claim that [she] press[es] and

for each form of relief that [she] seek[s].” Id. (citations omitted). In

a multi-plaintiff case like this one, “[s]o long as one party has stand-

ing, other parties may remain in the suit without a standing injury.”

Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006)

(citing Clinton v. City of New York, 524 U.S. 417, 434–36 (1998)).

1. Injury in Fact

We start with the first standing element—injury in fact. Ar-

ticle III requires that a plaintiff’s injury “be concrete and particular-

ized and actual or imminent, rather than conjectural or hypothet-

ical.” Baughcum v. Jackson, 92 F.4th 1024, 1031 (11th Cir. 2024).

“For an injury to be ‘particularized,’ it ‘must affect the plain-

tiff in a personal and individual way.’” Spokeo, 578 U.S. at 339

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(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)). “An

injury is concrete if it actually exists—that is, if it is ‘real, and not

abstract.’” Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48

F.4th 1236, 1242 (11th Cir. 2022) (en banc) (quoting Spokeo, 578 U.S.

at 340). “The most obvious concrete harm is a physical injury or

financial loss.” Drazen v. Pinto, 74 F.4th 1336, 1342 (11th Cir. 2023)

(en banc) (quoting Hunstein, 48 F.4th at 1243). But “intangible

harms can satisfy Article III’s concreteness requirement, too.” Id.

(citing Hunstein, 48 F.4th at 1243).

For an injury to be “actual or imminent,” it must have al-

ready occurred, be certainly impending, or have substantial risk of

occurring. Baughcum, 92 F.4th at 1031 (citing Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 158 (2014)). When, as here, a plaintiff

brings a pre-enforcement lawsuit, “[w]e apply a two-part test to de-

termine whether an injury is sufficiently imminent to permit pre-

enforcement review.” Dream Defs., 57 F.4th at 887. “First, the

plaintiff must have ‘an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by

a statute.’” Id. (quoting Susan B. Anthony List, 573 U.S. at 159). “Sec-

ond, there must ‘exist a credible threat of prosecution.’” Id. (alter-

ation adopted) (quoting Susan B. Anthony List, 573 U.S. at 159).

That means, here, because the plaintiffs brought a pre-en-

forcement challenge to the purchase restriction, the registration re-

quirement, and the affidavit requirement, they can satisfy the pre-

enforcement imminence test only if (1) at least one of them intends

to engage in conduct each provision arguably proscribes, and

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(2) that plaintiff faces a credible threat of prosecution as to each

provision. See Susan B. Anthony List, 573 U.S. at 159. Beginning

with the second part of the test—a credible threat of prosecution—

it’s satisfied here as to the three provisions.

“[W]hen a plaintiff challenge[s] [a] law soon after it was en-

acted and the state ‘vigorously defend[s]’ the law in court,” we can

infer a credible threat of prosecution exists. Dream Defs., 57 F.4th

at 887 (quoting Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1305

(11th Cir. 2017) (en banc)). That’s what happened here. The plain-

tiffs filed their lawsuit soon after the three provisions were enacted,

and the state officials have vigorously defended the provisions be-

fore the district court and now this Court. That leaves the first part

of the pre-enforcement imminence test.

a. Injury in Fact as to the Purchase Restriction

We’ll start with the purchase restriction. As we’ve already

explained, the purchase restriction prohibits a person from pur-

chasing or owning “any interest, except a de minimus indirect in-

terest, in [Florida] real property” if: (1) the person is domiciled in

China; (2) the person is not a United States citizen or lawful perma-

nent resident; (3) the person did not own “any interest” in the prop-

erty before July 1, 2023; and (4) the real property does not fall

within the exception that allows a natural person to own a home.

Id. § 692.204(1)(a)(4), (2)–(3). As explained below, because no

plaintiff intends to engage in conduct the purchase restriction argu-

ably proscribes, the plaintiffs have not shown an imminent injury,

and thus, they do not have standing to challenge this provision.

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i. Yifan Shen

Beginning with plaintiff Shen, she does not intend to engage

in conduct the purchase restriction arguably proscribes because

(1) she is not domiciled in China, and (2) she owned an interest in

her home before July 1, 2023 and does not intend to purchase an-

other real property after the effective date. Shen confirmed in her

affidavit that she was a native-born citizen of China in the United

States under an H-1B nonimmigrant work visa. She has lived in

the United States since 2016 and in Florida since 2019. While Shen

hasn’t applied for permanent residency yet, her “employer has be-

gun the process of permanent labor certification and [she] plan[s]

to apply for permanent residency in the United States.” In April

2023, Shen signed a contract to buy a home in Orlando that she

“intend[s]” to use as her “primary residence.”

Shen is not domiciled in China because, under well-estab-

lished principles of Florida law, her affidavit confirms she’s domi-

ciled in Florida, and a person can have only one domicile. Meisman

v. Hernandez, 353 So. 3d 669, 672 (Fla. 2d DCA 2022) (citing Walker

v. Harris, 398 So. 2d 955, 958 (Fla. 4th DCA 1981)). Florida law is

clear about where a person’s domicile is—it’s the place the person

has “presence plus [an] intent to make [the place] one’s home per-

manently or for an indefinite period.” Perez v. Perez, 164 So. 2d 561,

562 (Fla. 3d DCA 1964) (emphasis omitted). Put another way, a

person is domiciled in Florida if she “lives at a place (in Florida)

with no present intention of removing therefrom.” See Nicolas v.

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12 Opinion of the Court 23-12737

Nicolas, 444 So. 2d 1118, 1120 (Fla. 3d DCA 1984) (quotation and

citations omitted).

This is true even if the person does not have permanent im-

migration status. See Perez, 164 So. 2d at 564. As with anyone else,

when a person without permanent immigration status is present in

Florida and forms the intent to make Florida her permanent or in-

definite home, she’s acquired domicile in Florida. See id. The result

does not change under Florida law merely because the person is

“given permission to reside for a limited period but is liable to de-

portation” or “[s]he is given permission to reside for a limited pe-

riod which can be extended at the discretion of the authorities of

the country.” Id. (quotation omitted). Even where a “deportation

order has been made against [her,] [s]he only loses [her domicile]

when [s]he is actually deported.” Id. (quotation omitted).

According to Shen, she has lived in the United States since

2016 and in Florida since 2019, her employer is trying to obtain a

permanent labor certification for her, she “plan[s] to apply for per-

manent residency in the United States,” and she intends for the Or-

lando home to be her primary residence. Shen, therefore, is pre-

sent in Florida and intends to remain indefinitely. See Perez, 164

So. 2d at 562. The fact that Shen hasn’t obtained permanent immi-

gration status doesn’t change the domicile analysis, because Florida

law allows noncitizens subject to removal to establish Florida as

their domicile. Id. at 564. “[N]on-permanent immigration status

in this country does not constitute in itself an absolute . . . bar” to

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establishing Florida as Shen’s domicile. See Nicolas, 444 So. 2d at

1120.

Pushing back, Shen, citing two cases, argues that noncitizens

without permanent immigration status cannot form the required

intent to establish domicile under Florida law. See Juarrero v.

McNayr, 157 So. 2d 79, 81 (Fla. 1963); Matter of Cooke, 412 So. 2d

340, 343 (Fla. 1982). But neither case is relevant to the domicile

question. In both Juarrero and Cooke, the Florida Supreme Court

held that noncitizens without permanent visas could not form the

intent required to make Florida their “permanent” homes to get

the benefit of the Florida Constitution’s homestead exemption. See

Juarrero, 157 So. 2d at 81; Cooke, 412 So. 2d at 343; see also Fla. Const.

art. VII, § 6(a). But as the state intermediate appellate court ex-

plained in Perez, while the homestead exemption issue “turned on”

the fact that the homeowner intended to remain in Florida perma-

nently rather than indefinitely, Perez, 164 So. 2d at 564, Florida law

does not require an intent to remain permanently to establish dom-

icile, id. at 562. For domicile, an intent to remain indefinitely is

enough, even when [a noncitizen’s] permission to remain is for a

limited period which may or may not be renewed upon its expira-

tion.” Id. at 264 Because Shen intends to remain indefinitely in

Florida, she is domiciled in the state, which means the purchase

restriction does not proscribe her from buying real property.

Apart from her Florida domicile, the purchase restriction

does not arguably proscribe the purchase of her Orlando home be-

cause Shen owned a property interest in the home before the

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14 Opinion of the Court 23-12737

effective date of the provision on July 1, 2023. An “interest” is “all

or part of a legal or equitable claim to or right in property.” Interest,

Black’s Law Dictionary (12th ed. 2024) (emphasis added). Under

Florida law, a deed contract “wherein the seller agrees to convey

title to land after the buyer pays all installments of the purchase

price is merely a security device and is an alternative or substitute

to [the] immediate conveyance of the title to the buyer with a pur-

chase money mortgage back to the seller.” Klein v. Meza, 4 So. 3d

51, 52 n.1 (Fla. 3d DCA 2009) (quoting White v. Brousseau, 566

So. 2d 832, 835 (Fla. 5th DCA 1990)). Once the parties have exe-

cuted a land sale contract, “the buyer immediately receives and

holds the equitable title and the seller holds the bare legal title only

as security for the unpaid purchase price.” Id. (quoting White, 566

So. 2d at 835). This is important, the Florida Supreme Court has

explained, because equitable title is an “ownership interest” in real

property. See Accardo v. Brown, 139 So. 3d 848, 856 (Fla. 2014) (dis-

cussing equitable ownership in the context of ad valorem taxation).

This rule of Florida property law matters to Shen because

she executed the contract to buy her Orlando home in April 2023.

Once Shen executed the land sale contract, she had equitable title

to the Orlando home, see Klein, 4 So. 3d at 52 n.1, and therefore

acquired an “interest” in it, see Accardo, 139 So. 3d at 856. This oc-

curred before the purchase restriction’s July 1, 2023 effective date,

a fact Shen all but concedes. See Fla. Stat. § 692.204(3).

Shen hasn’t averred that she intends to purchase another in-

terest in Florida real property after July 1, 2023. While Shen’s

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concerned about her “future ability to purchase a home in Florida,”

she has no specific plans to buy another home. For that reason,

Shen has not shown she intends to engage in conduct the purchase

restriction arguably proscribes—she only imagines she might want

to do so in the future, which isn’t enough to establish an imminent

injury. See Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions—

without any description of concrete plans, or indeed even any spec-

ification of when the some day will be—do not support a finding of

the ‘actual or imminent’ injury that our cases require.”); Susan B.

Anthony List, 573 U.S. at 159; ACLU of Fla., 557 F.3d at 1197

(“[S]tanding requires specification, not imagination.”).

Because Shen is not domiciled in China, and she already

owns an interest in her Orlando home, she falls outside the pur-

chase restriction’s scope, and it does not arguably proscribe her

from completing her property purchase. Shen has not shown an

imminent injury, and she, therefore, lacks standing to challenge the

purchase restriction. We next turn to plaintiff Xu.

ii. Zhiming Xu

Like Shen, Xu does not intend to engage in conduct the pur-

chase restriction arguably proscribes because (1) he is not domi-

ciled in China, and (2) he owned interests in both of his Florida real

properties before July 1, 2023 and does not intend to purchase

more after that date. Xu swore that he was a native-born citizen of

China who entered the United States in 2019 under a tourist visa

and has a pending application for political asylum. He “ha[s] not

visited China since” arriving in the United States, has “no

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16 Opinion of the Court 23-12737

intentions” or “plans to ever return to China,” and “hope[s] . . . to

obtain permanent status in the United States.” Xu already owns

one home in Winter Garden, and in April 2023, he entered a con-

tract to buy a second property.

Like Shen, Xu is domiciled in Florida, not China. Xu has

lived in Florida since 2019 and does not intend to return to China.

Since Xu moved to Florida in 2019, he has already purchased one

home and entered a contract to buy another. These actions

demonstrate Xu intends to remain in Florida indefinitely, which,

paired with his presence in Florida, means he’s established Florida

as his domicile. See Perez, 164 So. 2d at 562–64. That Xu’s asylum

application is still pending doesn’t change the domicile analysis. See

id. at 564 (explaining that even if a person is “liable to be deported”

but “forms the necessary intention [to remain indefinitely],” he

then nonetheless “acquires a domicile of choice”).

Also like Shen, Xu owned interests in his two real properties

before July 1, 2023, and he has not indicated any plans to buy more

real property after that date. Like Shen, Xu entered the contract to

buy his second Florida property in April 2023. As a result, he ac-

quired equitable title—an interest in the property—before the pur-

chase restriction’s effective date of July 1, 2023. And Xu has not

said that he intends to buy more Florida real property after July 1,

2023.

Because Xu isn’t domiciled in China, and he already owned

an interest in his home before the purchase restriction’s effective

date, the purchase restriction does not arguably proscribe him from

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purchasing his second home. Xu, therefore, has not established an

imminent injury satisfying the first part of the test as to the pur-

chase restriction, and thus lacks standing to challenge it. We next

consider plaintiff Liu.

iii. Yongxin Liu

Liu does not intend to engage in conduct the purchase re-

striction arguably proscribes because, like Shen and Xu, he is dom-

iciled in Florida, not China. Liu attested that he is a native-born

citizen of China who is present in the United States under an H1-B

work visa, and other than a temporary nine-month stay elsewhere

in the United States, he has lived in Florida since 2018. Liu has not

applied for permanent residency, but he “plan[s] to do so and [his]

hope is to remain in the United States.” He currently owns a resi-

dence in Daytona Beach and “plan[s] to purchase a second property

in Pelican Bay, Florida as an investment property and vacation

home,” though he hasn’t yet found a specific property to buy.

Like Shen, Liu has lived in Florida for years, plans to apply

for permanent residency, and hopes to remain in the United States.

In fact, Liu has more ties to Florida than Shen; he already owns one

home in Florida and intends to buy a second. And like Shen and

Xu, because Liu is present in Florida and has demonstrated an in-

tent to remain in the state indefinitely, he’s established it as his

domicile. See Perez, 164 So. 2d at 562.

Because Liu is domiciled in Florida, his intent to purchase a

home in Pelican Bay is not arguably proscribed by the purchase re-

striction. Like the other plaintiffs, Liu also has not established an

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18 Opinion of the Court 23-12737

imminent injury, and he, therefore, lacks standing to challenge the

purchase restriction. We now consider the final individual plaintiff,

Wang.

iv. Xinxi Wang

Wang does not intend to engage in conduct the purchase

restriction arguably proscribes because she owned her home be-

fore July 1, 2023, and she has no plans to buy more real property in

Florida. Wang explained in her affidavit that she was an interna-

tional student from China currently studying in Florida under an

F-1 visa. She has lived in Florida since 2017 and owns a home in

Miami but has not yet applied for permanent residency. Wang is

also “very worried about [her] future ability to make another prop-

erty purchase.”

Unlike the other individual plaintiffs, Wang is at least argua-

bly domiciled in China. She averred that she is from China and is

a Chinese citizen. While Wang currently lives in Florida and owns

a home there, she has only a temporary student visa and, unlike the

other individual plaintiffs, she has not expressed an intention to re-

main indefinitely in Florida. That means Wang is still arguably

domiciled in China. See Mississippi Band of Choctaw Indians v. Holy-

field, 490 U.S. 30, 48 (1989) (“One acquires a ‘domicile of origin’ at

birth, and that domicile continues until a new one (a ‘domicile of

choice’) is acquired.” (citations omitted)).

But Wang owned her home before July 1, 2023, so the pur-

chase restriction doesn’t impair that ownership. See Fla. Stat.

§ 692.204(3). And Wang has not expressed an intent to purchase

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23-12737 Opinion of the Court 19

another property in Florida. She’s only “worried about [her] fu-

ture ability to make another property purchase” if she eventually

decides to buy more property or move within Florida. But like

Shen and Xu, such some-day intentions are not enough to show

that she intends to engage in conduct the purchase restriction ar-

guably proscribes. See Lujan, 504 U.S. at 564; Susan B. Anthony List,

573 U.S. at 159; ACLU of Fla., 557 F.3d at 1197. So Wang has not

established an imminent injury as to the purchase restriction, and

therefore lacks standing to challenge it. The plaintiffs can only

challenge the purchase restriction, then, if Multi-Choice has stand-

ing.

v. Multi-Choice

Multi-Choice argues it has been injured because the pur-

chase restriction will “harm[] . . . [its] business” as “existing and po-

tential” customers “are now prohibited from acquiring property in

Florida.” In support, Jian Song—one of Multi-Choice’s owners—

explained in his initial affidavit that Multi-Choice is a real estate

broker that “primarily serves Chinese-speaking clients in the

United States, China, and Canada,” and some of his clients are not

United States citizens or lawful permanent residents. Song argues

that Multi-Choice “stands to lose an estimated [twenty-five] per-

cent of its business” because the purchase restriction might prohibit

Multi-Choice’s existing and potential customers from buying Flor-

ida property and limit those to whom its existing customers can sell

property.

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20 Opinion of the Court 23-12737

Song supplemented his initial affidavit with a second one. In

the second affidavit, Song identified a specific transaction he says

the purchase restriction prohibits. Song attested that Multi-Choice

client Qing Zhou—who was domiciled in China and was not a

United States citizen or lawful permanent resident—signed a con-

tract to purchase Florida real property in 2019. Zhou, Song avers,

cannot finalize the transaction because two mortgage lenders have

now refused to issue loans to any Chinese citizen in response to the

purchase restriction.

Song’s affidavits do not establish that any Multi-Choice cli-

ent will engage in conduct that the purchase restriction prohibits.

Song’s first affidavit never says that any of his customers are domi-

ciled in China, so there’s no indication that the purchase restriction

applies to them or their properties. At most, Song’s first affidavit

establishes that some of his clients are “Chinese” and “neither citi-

zens nor permanent residents of the United States.” But the pur-

chase restriction applies only if Multi-Choice’s customers are dom-

iciled in China and intend to buy Florida real property after July 1,

2023. So, like the individual plaintiffs, Song’s first affidavit does not

establish that Multi-Choice clients will engage in conduct the pur-

chase restriction arguably proscribes. See Fla. Stat.

§ 692.204(1)(a)(4).

Song’s second affidavit, which specifically mentions Multi-

Choice customer Zhou, doesn’t move the needle. While Zhou was

domiciled in China and was not a United States citizen or lawful

permanent resident, he owned an interest in his property before

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23-12737 Opinion of the Court 21

July 1, 2023. Song’s affidavit makes clear that Zhou signed the con-

tract to buy the property in 2019, so he—like Shen and Xu—gained

equitable title to the property before July 1, 2023. Because Zhou

acquired an interest in his property before the purchase re-

striction’s effective date of July 1, 2023, the purchase restriction

does not limit his ability to complete the transaction. See id.

§ 692.204(3).

In the end, none of the plaintiffs has established that they

intend to engage in conduct that the purchase restriction arguably

proscribes. That means no plaintiff has established an imminent

injury in fact as to the purchase restriction, so no plaintiff has stand-

1

ing to challenge it.

1

“It seems odd” to the dissenting opinion that Shen and Liu are not domiciled

in China since they self-identify as Chinese domiciliaries and they declared as

part of their H1-B visas that they would leave the United States when their

visas expired. But the dissenting opinion’s “skeptic[ism]” and “doubts” are not

the facts and they are not the law. The facts show that Shen and Liu do not

self-identify as Chinese domiciliaries. Their declarations say no such thing.

And Florida law is clear that it is presence plus the intent to remain for an

indefinite period or an unlimited time—and not federal immigration status—

that controls one’s domicile in the state. See Nicolas, 444 So. 2d at 1120 (“[A]n

alien’s foreign citizenship or non-permanent immigration status in this coun-

try does not constitute in itself an absolute residency bar . . . .”). Shen and Liu

are present in Florida and intend to remain in the state for an indefinite period.

Shen’s employer has begun the process for a permanent labor certification and

she plans to apply for permanent residency. And Liu plans to apply for per-

manent residency and hopes to remain in the United States.

In any event, Shen has another imminency problem. Shen had an in-

terest in her home before the effective date of the purchase restriction and her

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22 Opinion of the Court 23-12737

b. Injury in Fact as to the Registration Requirement

But the registration requirement is a different matter. Recall

that under the registration requirement, a property owner must

register her property if she is: (1) domiciled in China; (2) not a

United States citizen or lawful permanent resident; and (3) she

owns more than an indirect de minimus interest in real property

2

within Florida. Fla. Stat. § 692.204(4)(a).

Wang has shown that she is likely subject to the registration

requirement. As we explained above, Wang is arguably domiciled

in China, she is not a United States citizen or lawful permanent res-

ident, and she owns a home in Miami within ten miles of a military

installation or critical infrastructure facility. Thus, Wang likely has

to register her name and property under the registration require-

ment. She therefore satisfies both parts of the “test to determine

whether an injury is sufficiently imminent to permit pre-enforce-

ment review.” See Dream Defs., 57 F.4th at 887.

Of course, Wang must still show that her imminent injury is

both “concrete [and] particularized[.]” Drazen, 74 F.4th at 1342

declaration does not say that she has specific plans to buy another property in

the future. For that reason, too, Shen does not intend to engage in conduct

that the purchase restriction arguably proscribes.

2

A property owner must also register her property if she (1) is domiciled in

China, (2) is not a United States citizen or legal permanent resident, (3) owned

or acquired more than a de minimus indirect interest in real property before

July 1, 2023, and (4) the property is within ten miles of any “military installa-

tion” or “critical infrastructure facility.” See Fla. Stat. § 692.203(3)(a).

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23-12737 Opinion of the Court 23

(quoting TransUnion, 594 U.S. at 423). Paying money to comply

with a state law may be a concrete and particularized injury. See,

e.g., Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1327–28 (11th

Cir. 2014) (finding trade association had standing to bring pre-en-

forcement challenge to Georgia law amending state insurance code

because “[the association’s] members will be faced with the choice

of complying with its requirements, which impose direct and indi-

rect costs, or ignoring it, which will expose them to penalties”)

3

(quotation omitted)). Losing time complying with a regulatory

burden may be one too. See, e.g., Common Cause/Ga. v. Billups, 554

F.3d 1340, 1351 (11th Cir. 2009) (finding standing where the harm

was time wasted traveling to the county registrar’s office); Pedro v.

Equifax, Inc., 868 F.3d 1275, 1279–80 (11th Cir. 2017) (finding stand-

ing where plaintiff alleged she “lost time . . . attempting to resolve

[her] credit [report] inaccuracies” stemming from defendant’s inac-

curate reporting of plaintiff’s credit); cf. Palm Beach Golf Center-Boca,

Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251–53 (11th Cir.

2015) (finding a concrete injury based on occupation of plaintiff’s

phone line and fax machine during the one-minute transmission of

an unwanted fax); Drazen, 74 F.4th at 1345–46 (holding the plain-

tiff’s allegations based on single unwanted text were sufficient to

satisfy concreteness requirement of Article III standing). Here,

3

See also Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th

Cir. 2015) (“An increased regulatory burden typically satisfies the injury in fact

requirement.”); Am. Farm Bureau Fed’n v. U.S. E.P.A., 792 F.3d 281, 293 (3d Cir.

2015) (“These requirements will in turn cause compliance costs for [plaintiff],

a classic injury-in-fact.” (citation omitted)).

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24 Opinion of the Court 23-12737

Wang has alleged both. Wang’s affidavit establishes that she owns

real property in Florida, that she will likely be subject to the regis-

tration requirement, and that she’ll incur additional burdens spe-

cific to her by complying with the registration requirement. Wang

has therefore satisfied each of the necessary conditions to establish

injury in fact as to the registration requirement.

c. Injury in Fact as to the Affidavit Requirement

Finally, there’s the affidavit requirement. Under the affida-

vit requirement, anyone who purchases an interest in real property

in Florida after July 1, 2023 must sign an affidavit attesting that his

purchase complies with SB 264. Fla. Stat. § 692.204(6)(a).

Plaintiff Liu has shown that he intends to engage in conduct

that will arguably trigger the affidavit requirement. According to

Liu’s affidavit, he intends to purchase a second home in Pelican Bay

after July 1, 2023. So Liu will arguably have to sign an affidavit say-

ing that his purchase complies with SB 264. That meets the immi-

nence test.

And for the same reasons we explained above, the costs and

lost time in having to comply with the affidavit requirement are

also concrete and particularized injuries under Article III. See Am.’s

Health Ins. Plans, 742 F.3d at 1327–28; Pedro, 868 F.3d at 1280. Thus,

Liu has satisfied each of the requirements to establish injury in fact

as to the affidavit requirement.

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23-12737 Opinion of the Court 25

2. Traceability and Redressability

No one disputes—and we agree—that the plaintiffs have sat-

isfied their burden as to the remaining standing elements—tracea-

bility and redressability. To establish traceability and redressability

where a lawsuit seeks to enjoin a government official from enforc-

ing a state law, a plaintiff must show “‘that the official has the au-

thority to enforce the particular provision [being] challenged, such

that [the] injunction prohibiting enforcement would be effectual.’”

Dream Defs., 57 F.4th at 888–89 (11th Cir. 2023) (quoting Support

Working Animals v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir.

2021)).

Here, the plaintiffs’ lawsuit names state officials who are

charged with implementing and enforcing the registration and affi-

davit requirements. See Fla. Stat. § 692.204(4)(a), (6)(c), (7)–(10).

And if the plaintiffs prevailed in the lawsuit for a permanent injunc-

tion, the state officials would be enjoined from enforcing the regis-

tration and affidavit provisions, which would remedy their alleged

injuries. Thus, the plaintiffs have satisfied the traceability and re-

dressability elements of Article III standing.

***

In the end, the plaintiffs do not have standing to challenge

the purchase restriction. But because at least one plaintiff has es-

tablished standing to challenge the registration and affidavit re-

quirements, we next address whether the district court abused its

discretion in denying the preliminary injunction motion as to those

provisions.

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26 Opinion of the Court 23-12737

B. DID THE DISTRICT COURT ABUSE ITS DISCRETION BY

DENYING THE PRELIMINARY INJUNCTION AS TO THE

REGISTRATION AND AFFIDAVIT REQUIREMENTS?

The district court may grant a preliminary injunction only if

the plaintiffs show that: (1) they “ha[d] a substantial likelihood of

success on the merits” of their claims; (2) they would suffer “irrep-

arable injury” if the injunction were not granted; (3) “the threat-

ened injury to [them] outweigh[ed] whatever damage the pro-

posed injunction may cause” the state officials; and (4) “the injunc-

tion [was] not [] adverse to the public interest.” Siegel v. LePore, 234

F.3d 1163, 1176 (11th Cir. 2000) (en banc) (citation omitted). Their

“[f]ailure to show any of the four factors is fatal.” ACLU of Fla., 557

F.3d at 1198.

The district court denied the plaintiffs’ preliminary injunc-

tion motion because they failed to show a substantial likelihood of

success on any of their claims as to the registration and affidavit

requirements. We agree.

1. Likelihood of Success on the Plaintiffs’ Equal Protection Claim

The Equal Protection Clause prohibits a state from

“deny[ing] to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. The plaintiffs press two

theories for why the district court abused its discretion in conclud-

ing that they were not substantially likely to succeed in showing

that the registration and affidavit requirements violated the Equal

Protection Clause. Under the first theory, the plaintiffs contend

that the two provisions facially classify based on national origin and

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23-12737 Opinion of the Court 27

alienage. And the facial classifications, the plaintiffs argue, are sub-

ject to strict scrutiny—a standard the registration and affidavit re-

quirements fail to meet because neither is narrowly tailored to fur-

ther a compelling state interest.

The plaintiffs’ second theory assumes both provisions are fa-

cially neutral. But, they maintain, the registration and affidavit re-

quirements are still subject to strict scrutiny because, under the Su-

preme Court’s framework in Village of Arlington Heights v. Metropol-

itan Housing Development Corp., 429 U.S. 252 (1977), the provisions

were enacted to discriminate intentionally based on national

origin, alienage, race, and ethnicity. See Hunt v. Cromartie, 526 U.S.

541, 546 (1999) (“A facially neutral law . . . warrants strict scrutiny

only if it can be proved that the law was motivated by a [discrimi-

natory purpose].” (cleaned up)). We address each theory below.

a. The Facial Classification Theory

We’ll begin by explaining why the district court did not

abuse its discretion in concluding that plaintiffs’ facial classification

theory was not substantially likely to succeed. We divide that dis-

cussion into two parts. First, we discuss why neither the registra-

tion requirement nor the affidavit requirement facially classifies

based on national origin. Second, we address why, although the

registration requirement facially classifies based on alienage, the

plaintiffs still weren’t substantially likely to succeed in showing the

alienage classification violated the Equal Protection Clause.

i. National Origin

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28 Opinion of the Court 23-12737

The registration and affidavit requirements do not facially

classify based on national origin. “[N]ational origin” refers to “the

particular country in which one was born,” see United States v.

Osorto, 995 F.3d 801, 822 (11th Cir. 2021) (interpreting the same

phrase in the context of 28 U.S.C. section 994(d)), or “more

broadly, the country from which his or her ancestors came,” Espi-

noza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973). As the plaintiffs

concede, the registration and affidavit requirements do not men-

tion either. On its face, the registration requirement applies only

to those who are domiciled in China. See Fla. Stat.

§ 692.204(1)(a)(4), (4)(a). And the affidavit requirement doesn’t dis-

tinguish at all: everyone who buys Florida property has to submit

the same affidavit. Id. § 692.204(6)(a).

The plaintiffs try to sidestep these provisions’ facial neutral-

ity as to national origin by latching on to the registration require-

ment’s reference to Chinese domicile. Specifically, they argue that

Chinese domicile as it is referenced in the registration requirement

is a “fig lea[f]” for Chinese national origin. So, the plaintiffs con-

tend, when the registration requirement applies to those domiciled

in China, it’s using Chinese domicile as a proxy to discriminate

against those of Chinese national origin.

Even assuming a facial classification can be proven by proxy,

the plaintiffs did not show a substantial likelihood of success on

their proxy theory in the district court. To succeed on their proxy

theory, the plaintiffs bore the burden of showing a sufficient “fit”

between Chinese domicile and Chinese national origin. See Pac.

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23-12737 Opinion of the Court 29

Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 n.23

(9th Cir. 2013) (stating that proxy discrimination occurs when fa-

cially neutral criteria is “so closely associated with the disfavored

group that discrimination on the basis of such criteria is . . . discrim-

ination against the disfavored group”). But the plaintiffs offered no

evidence to the district court about the fit between the two. They

simply assumed, without evidence, that Chinese domicile and Chi-

nese national origin are the same thing and that the registration

requirement therefore “expressly discriminate[d] on the basis of na-

tional origin[.]” But without evidence, there was no basis for the

district court to look beyond the facial neutrality of the registration

and affidavit requirements to find that Chinese domicile is a proxy

for Chinese national origin. 4

4

For the first time on appeal, the plaintiffs proffer evidence—United Nations

statistics—purporting to show that most people who live in China were also

born there. But “[i]n deciding issues on appeal, we consider only evidence that

was part of the record before the district court.” Selman v. Cobb Cnty. Sch. Dist.,

449 F.3d 1320, 1332 (11th Cir. 2006) (first citing S & Davis Int’l, Inc. v. Republic

of Yemen, 218 F.3d 1292, 1299 n.5 (11th Cir. 2000); then citing Shahar v. Bowers,

120 F.3d 211, 213 n.1 (11th Cir. 1997)). The district court cannot abuse its dis-

cretion by failing to grant relief based on evidence the parties did not present.

Even if it could, the United Nations statistics appear to show only that many

people of Chinese national origin also live in China. But “‘[d]omicile’ is not

necessarily synonymous with ‘residence,’ and one can reside in one place but

be domiciled in another.” Mississippi Band, 490 U.S. at 48 (internal citations

omitted). Thus, even with the new evidence, the plaintiffs have not shown

the fit between Chinese domicile and Chinese national origin.

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30 Opinion of the Court 23-12737

ii. Alienage

Next, the plaintiffs argue that the registration and affidavit

requirements facially discriminated based on alienage because they

exempt United States citizens from having to comply with the re-

quirements. The district court agreed, and the state officials do not

contest that conclusion on appeal. We agree that the plaintiffs

showed that the registration requirement facially classified based

on alienage, but they haven’t shown that the affidavit requirement

does.

To reiterate, the affidavit requirement applies to every

“buyer of real property” in Florida. It is not limited to noncitizens.

Fla. Stat. § 692.204(6)(a). United States citizens also have to file an

affidavit if they buy an interest in real property in Florida after

July 1, 2023, the same as noncitizens. So the district court did not

abuse its discretion in finding that the plaintiffs’ facial classification

theory as to the affidavit requirement wasn’t substantially likely to

succeed.

The registration requirement, on the other hand, does clas-

sify based on alienage. Alienage generally refers to whether a per-

son is a United States citizen. See Osorto, 995 F.3d at 822. The reg-

istration requirement classifies based on a person’s citizenship be-

cause, while it applies to people domiciled in China, the provision

exempts “citizen[s] or lawful permanent resident[s] of the United

States.” Fla. Stat. § 692.204(1)(a), (4)(a). Thus, if two people are

domiciled in China, and only one of them is a United States citizen

or lawful permanent resident, the registration requirement makes

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23-12737 Opinion of the Court 31

it so the citizen or lawful permanent resident does not have to reg-

ister her property but the noncitizen and nonlawful permanent res-

ident does. That’s an alienage classification because the provision

treats noncitizens differently than citizens—and the state officials

agree. But the state officials do not agree the plaintiffs showed a

substantial likelihood that the registration requirement’s alienage

classification violated the Equal Protection Clause. We now con-

sider that question.

The plaintiffs argue that the alienage classification violates

the Equal Protection Clause because strict scrutiny applies, and the

classification is not narrowly tailored to further a compelling state

interest. The state officials respond that strict scrutiny doesn’t ap-

ply for two reasons. First, they point us to a series of cases—the

Terrace cases—in which the Supreme Court upheld laws restricting

noncitizens’ ability to own land without applying strict scrutiny

and argue the Terrace cases demonstrate that alienage classifica-

tions aren’t subject to heightened scrutiny in the context of land-

ownership. Second, the state officials contend that, while some al-

ienage classifications are subject to strict scrutiny, state laws—like

the registration requirement—that exempt United States citizens

and lawful permanent residents are nonetheless subject to rational

basis review. As explained below, we agree with both of the state

officials’ arguments and conclude that strict scrutiny is inapplicable

to the registration requirement’s alienage classification.

First, while it’s true that we usually apply strict scrutiny to

alienage classifications, see, e.g., Bernal v. Fainter, 467 U.S. 216, 218–

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32 Opinion of the Court 23-12737

19 (1984), in Terrace v. Thompson, the Supreme Court upheld a

Washington law that prohibited some noncitizens from owning

land without applying strict scrutiny. 263 U.S. 197, 220–21 (1923);

see also Sugarman v. Dougall, 413 U.S. 634, 653 (1973) (Rehnquist, J.,

dissenting) (explaining that the Terrace cases applied rational basis

review). There, a married couple from Washington—the Ter-

races—wanted to sell land to a Japanese noncitizen. Terrace, 263

U.S. at 211–12. But they were stopped by a Washington law that

generally prohibited noncitizens from owning land unless they “in

good faith ha[d] declared [an] intention to become citizens of the

United States.” Id. at 212–13.

The Washington law was a problem for the Terraces and

their would-be buyer because, at the time, only “free white persons

and persons of African nativity or descent” were eligible for citizen-

ship. See id. at 220 (“Generally speaking, the natives of European

countries are eligible [for citizenship]. Japanese, Chinese and Ma-

lays are not.”). That meant an Asian noncitizen, like the would-be

buyer, couldn’t declare in good faith that he intended to become a

citizen. See id. at 218–22. Thus, the Washington law effectively

created “[t]wo classes of” noncitizens—“those who [could] and

those who [could] not become citizens”—and largely prohibited

the latter, which included Asian noncitizens, from owning prop-

erty. See id. at 220.

The Supreme Court held that the Washington law did not

violate the Equal Protection Clause, explaining that “each state, in

the absence of any treaty provision to the contrary, has [the] power

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23-12737 Opinion of the Court 33

to deny to aliens the right to own land within its borders.” Id. at

217 (citations omitted). As the Supreme Court went on to say, the

Equal Protection Clause did “not forbid every distinction . . . be-

tween citizens and” noncitizens. Id. at 218. Far from it. “The

rights, privileges and duties of” noncitizens “differ[ed] widely from

those of citizens.” Id. Even among noncitizens, the rights of those

who had declared an intent to seek citizenship “differ[ed] substan-

tially from those” who didn’t. Id. So, the Supreme Court looked

only to whether the Washington law was “arbitrary and capri-

cious” to determine if it violated the Equal Protection Clause. Id.

at 216–17.

The Washington law was not arbitrary and capricious, the

Supreme Court concluded, because it relied on Congress’s choice

about those to whom it wished to extend citizenship, and Wash-

ington could “properly . . . assume that the considerations upon

which Congress made [the] classification [were] substantial and

reasonable.” Id. at 220. “The rule established by Congress,” in

other words, “in and of itself[] furnishe[d] a reasonable basis” for

the Washington law. Id. The Terraces, therefore, could not sell

their land to the would-be buyer. Id. at 220–21. The same year as

Terrace, the Supreme Court applied its holding that the state had

the power to deny noncitizens the ability to buy land within its bor-

ders in a series of cases and upheld a similar California law. See

Porterfield v. Webb, 263 U.S. 225, 232–33 (1923) (determining the law

was not “arbitrary or unreasonable”); Frick v. Webb, 263 U.S. 326,

333–34 (1923); Webb v. O’Brien, 263 U.S. 313, 322–23 (1923).

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34 Opinion of the Court 23-12737

If the Terrace cases are controlling here, the plaintiffs are not

substantially likely to succeed in showing that the registration re-

quirement violated the Equal Protection Clause. Under the Terrace

cases, a state may deny landownership completely to noncitizens

so long as the denial is not arbitrary, capricious, or unreasonable.

Terrace, 263 U.S. at 216–18; Porterfield, 263 U.S. at 232–33. And if a

state has the power to deny landownership to noncitizens, it has

the lesser power to require noncitizens to register their ownership

of real property without triggering heightened scrutiny. Cf. Dep’t

of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020) (recog-

nizing that the power to admit and exclude noncitizens comes with

the “concomitant . . . power to set the procedures to be followed

in determining whether an alien should be admitted”). But the

plaintiffs and the dissenting opinion contend that the Supreme

Court’s post-Terrace cases, which have often applied strict scrutiny

to alienage classifications, effectively abrogated Terrace. See, e.g.,

Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (applying “close judicial scru-

tiny” (quotation omitted)); Examining Bd. of Eng’rs, Architects & Sur-

veyors v. Flores de Otero, 426 U.S. 572, 599–602 (1976) (applying

“strict judicial scrutiny”); In re Griffiths, 413 U.S. 717, 721–22 (1973)

(applying “close judicial scrutiny” (quotation omitted)); Graham v.

Richardson, 403 U.S. 365, 376 (1971) (applying “strict judicial scru-

tiny”).

Although later Supreme Court precedent may have applied

a different level of scrutiny than the Terrace cases to other alienage

classifications, “[t]he Supreme Court has told us many times” that

when one of its precedents has “direct application in a case, yet

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23-12737 Opinion of the Court 35

appears to rest on reasons rejected in some other line of decisions,”

our duty is to “follow the case which directly controls.” Evans v.

Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (quo-

tation omitted). It doesn’t matter how “moth-eaten” the founda-

tion of a decision is or how “dead” the decision appears to be. Id.

“[T]he Supreme Court has insisted on reserving to itself the task of

burying its own decisions,” Jefferson Cnty. v. Acker, 210 F.3d 1317,

1320 (11th Cir. 2000), because it is the Supreme Court’s “preroga-

tive alone to overrule one of its precedents,” United States v. Hatter,

532 U.S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3,

20 (1997)). Until it does, we must apply its decision if the facts “line

up closely with the facts before us.” Acker, 210 F.3d at 1320.

Because this case and the Terrace cases address when a state

can regulate noncitizens’ ability to own real property, their facts

“line up closely,” which means we must apply the Terrace cases. See

id. Whatever might be said about the sturdiness of the Terrace

cases’ foundation, the Supreme Court has not overruled them. See

Hatter, 532 U.S. at 567. Indeed, the Supreme Court has repeatedly

acknowledged or assumed the validity of the Terrace cases. See, e.g.,

Sugarman, 413 U.S. at 644–45 & n.11 (majority opinion) (distin-

guishing “special-public-interest” cases like the Terrace cases);

Oyama v. California, 332 U.S. 633, 646 (1948) (finding it “unneces-

sary and therefore inappropriate to reexamine” the Terrace cases).

For example, as the dissenting opinion explains, the Supreme

“Court’s approach to alienage restrictions began to change” with

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948), “after the

Second World War.” Yet, even as its approach to reviewing alien

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36 Opinion of the Court 23-12737

restrictions changed in Takahashi, the Court was careful not to

overrule or set aside the Terrace cases. Instead, the Takahashi Court

“[a]ssume[d] the continued validity of” the Terrace cases. Id. at 422

& nn.8–9. We must do the same. Absent the Supreme Court’s

explicit abrogation of the Terrace cases, we are bound to follow

them. See Acker, 210 F.3d at 1320.

The dissenting opinion ends by explaining how selective his-

tory can be used to achieve a preferred outcome. Yes, it can. By

selectively overlooking the Court’s history of repeatedly refusing

to overrule the Terrace cases—even as the Court set for itself a new

approach to alien restrictions—and by selectively ignoring the Su-

preme Court’s history of reserving to itself the prerogative to ex-

plicitly overrule its precedents, the dissenting opinion reaches the

outcome it does. Someday soon, the Supreme Court may overrule

the Terrace cases (as it did for Korematsu). But, as the dissenting

opinion concedes, the Court has not explicitly done so. And be-

cause it has not explicitly done so, it is not for us, as an inferior

court, to overrule the Terrace cases—especially where the Supreme

Court has explicitly assumed their validity, found it unnecessary to

reexamine them, and distinguished them from the Court’s new ap-

proach to alien restrictions.

The plaintiffs and the dissenting opinion also assert that,

even if the Terrace cases haven’t been abrogated, they do not apply

here because Terrace involved “a very different type of law” from

the registration requirement. The Washington law in Terrace, they

contend, applied to all noncitizens equally, whereas the

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23-12737 Opinion of the Court 37

registration requirement here only applies to specific noncitizens—

those domiciled in China.

We disagree. While a portion of the decision in Terrace de-

scribed the Washington law as “applying alike and equally to all”

noncitizens, Terrace, 263 U.S. at 218, the Supreme Court also rec-

ognized that the law in fact created “[t]wo classes of” noncitizens—

those who could seek citizenship and those who couldn’t—and

that, because they couldn’t seek citizenship at the time, Asian

noncitizens were largely excluded from landownership, see id. at

220. So, just like the registration requirement, the law in Terrace

distinguished between two classes of noncitizens.

Second, even if the Terrace cases have been abrogated, the

registration requirement’s alienage classification would still be sub-

ject to rational basis review—rather than strict scrutiny—because

the provision does not apply to United States citizens and lawful

permanent residents. “While the Supreme Court has said that

‘classifications based on alienage are inherently suspect and subject

to close judicial scrutiny,’ it has never ‘held that all limitations on

aliens are suspect[.]’” Estrada v. Becker, 917 F.3d 1298, 1309 (11th

Cir. 2019) (cleaned up) (first quoting Graham, 403 U.S. at 372; then

quoting Foley v. Connelie, 435 U.S. 291, 294 (1978)).

As the Fifth Circuit has explained, the Supreme Court has

applied strict scrutiny to “invalidate state laws affecting ‘resident

aliens’ or ‘permanent resident aliens,” but it “has never applied

strict scrutiny review to a state law affecting any other alienage clas-

sifications.” LeClerc v. Webb, 419 F.3d 405, 416 (5th Cir. 2005).

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38 Opinion of the Court 23-12737

Applying strict scrutiny to laws that apply alienage classifications to

lawful permanent residents is proper because lawful permanent

residents are “virtual citizens.” See id. at 417. Lawful permanent

residents, for example, “may not be deported, are entitled to reside

permanently in the United States, may serve, voluntarily or by con-

scription, in the military, are entitled to state aid benefits, and pay

taxes on the same bases as citizens.” Id. at 418 (footnotes omitted).

But lawful permanent residents may not “participate in the political

process,” and this “lack of political capacity” justifies strict scrutiny

with respect to laws that apply alienage classifications to them. Id.

at 417.

Noncitizens who are not lawful permanent residents, by

contrast, “are admitted to the United States only for the duration

of their status,” and “must depart at the discretion of the Attorney

General.” Id. at 418–19 (footnotes omitted). They, unlike lawful

permanent residents, are subject to a variety of restrictions—like

not being able to serve in the military. See id. at 419. And while

they might also lack political capacity, that is solely “tied to their

temporary connection to this country.” Id. at 417. The Fifth Cir-

cuit therefore held in LeClerc that “nonimmigrant aliens”—nonciti-

zens who aren’t lawful permanent residents—“are [not] a suspect

class entitled to have state legislative classifications concerning

them subjected to strict scrutiny.” Id. at 419. The Sixth Circuit,

following LeClerc, has also held that strict scrutiny doesn’t apply

when a challenged law exempts citizens and lawful permanent res-

idents. See League of United Latin Am. Citizens v. Bredesen, 500 F.3d

523, 533 (6th Cir. 2007).

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23-12737 Opinion of the Court 39

So have we. In Estrada, we reviewed a Georgia policy that

banned noncitizens who “received deferred action pursuant to the

Deferred Action for Childhood Arrivals memorandum” from at-

tending Georgia’s “three most selective colleges and universities.”

917 F.3d at 1301. Like the courts in LeClerc and Bredesen, we held

that “the Supreme Court’s decisions concerning resident aliens”

did not extend “to different alien categories” and declined to extend

strict scrutiny review to the Georgia policy affecting DACA recipi-

ents. Id. at 1310 (quoting LeClerc, 419 F.3d at 419). Instead, we

applied rational basis review. Id. at 1310–11.

Like the Georgia policy in Estrada, here the registration re-

quirement only applies to noncitizens who are not lawful perma-

nent residents. See id.; see also Fla. Stat. § 692.204(1)(a)(4), (4)(a).

And as in Estrada, rational basis review applies to this kind of dis-

tinction. See Estrada, 917 F.3d at 1310–11.

Rational basis review requires “a rational relationship be-

tween” a statute’s classification “and some legitimate governmen-

tal purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993). There

is a presumption that the challenged law is constitutional, and

plaintiffs can only overcome that presumption by “‘negati[ng]

every conceivable basis which might support’ the classification.”

See Estrada, 917 F.3d at 1311 (quoting Heller, 509 U.S. at 320). The

challenged law must be upheld “if there is any reasonably conceiv-

able state of facts that could provide a rational basis for the classifi-

cation.” Heller, 509 U.S. at 320 (quotation and citations omitted).

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40 Opinion of the Court 23-12737

Here, the plaintiffs have not shown a substantial likelihood

that the registration requirement is arbitrary, capricious, or unrea-

sonable. As the state officials explained to the district court, the

registration requirement was adopted to address food, individual,

and national security concerns because China (and other countries

of concern) started buying large chunks of land in the United States.

See, e.g., 15 C.F.R. § 791.4 (2024) (listing China as a foreign adver-

5

sary). State officials, for example, submitted to the district court

evidence showing the Chinese government and Chinese foreign-

principal investors combined owned nearly 580,000 acres of agri-

cultural land in the United States by the end of 2021. And according

to these reports, that rise in land ownership didn’t happen in a vac-

uum—it occurred alongside concerns the Chinese government

was “working aggressively to undermine U[nited States] interests”

via traditional espionage, agricultural land acquisition, cyber espi-

onage and information warfare, and harassment and blackmailing.

The national security concerns underlying the registration require-

ment are thus a “reasonably conceivable” basis for this provision.

See Estrada, 917 F.3d at 1310–11 (quoting Heller, 509 U.S. at 320); see

also Trump v. Hawaii, 585 U.S. 667, 710 (2018) (concluding that a

presidential proclamation excluding foreign nationals of certain

designated countries from entering the United States “surviv[ed]

rational basis review” because of the government’s “sufficient

5

Like Washington state in Terrace, Florida relied on the federal government’s

classification of China as a foreign adversary to support the registration re-

quirement.

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23-12737 Opinion of the Court 41

national security justification”); Moving Phones P’ship L.P. v. F.C.C.,

998 F.2d 1051, 1056 (D.C. Cir. 1993) (concluding that policy barring

noncitizens from owning radio broadcast licenses survived rational

basis review because the policy’s national security justification was

rationally related to the challenged alienage classification); Trans-

pacific Steel LLC v. United States, 4 F.4th 1306, 1333–34 (Fed. Cir.

2021) (concluding that presidential proclamation imposing addi-

tional duties on foreign steel imports survived the “undemanding

rational-basis standard” because the government’s national secu-

rity justification for the classification was sufficient).

***

In sum, as to the registration and affidavit requirements, the

district court did not abuse its discretion in concluding that the

plaintiffs were not substantially likely to succeed on their facial clas-

sification theory.

b. Intentional Discrimination Under Arlington Heights

As an alternative to their facial classification theory, the

plaintiffs point to Arlington Heights and argue that we should none-

theless apply strict scrutiny to the registration and affidavit require-

ments because the Florida Legislature enacted them to intention-

ally discriminate based on national origin, alienage, race, and eth-

nicity. In other words, the plaintiffs argue unlawful animus moti-

vated the Florida Legislature to enact the two provisions. The dis-

trict court, after reviewing the evidence, found that the plaintiffs

had not shown a substantial likelihood that the registration and

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42 Opinion of the Court 23-12737

affidavit requirements were intentionally discriminatory under the

Arlington Heights factors. That finding was not clearly erroneous.

To prevail on an intentional discrimination claim under Ar-

lington Heights, plaintiffs “must prove both that the law will have a

discriminatory impact and that it was adopted with discriminatory

intent.” League of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66

F.4th 905, 922 (11th Cir. 2023) (citing Greater Birmingham Ministries

v. Sec’y of State for Ala., 992 F.3d 1299, 1321 (11th Cir. 2021)). They

must, therefore, show that the challenged law was enacted “‘be-

cause of,’ and not merely ‘in spite of’ its adverse effects” on a par-

ticular group. See Jean v. Nelson, 711 F.2d 1455, 1485 (11th Cir. 1983)

(quotation omitted). When determining whether a challenged law

was enacted with discriminatory intent and will have discrimina-

tory impact, “we rely on the guidance in [Arlington Heights].”

League of Women Voters, 66 F.4th at 922. “Arlington Heights and [our]

later caselaw require considering several factors” in determining

whether a “law has both discriminatory intent and effect”:

(1) the impact of the challenged law; (2) the historical

background; (3) the specific sequence of events lead-

ing up to its passage; (4) procedural and substantive

departures; (5) the contemporary statements and ac-

tions of key legislators; (6) the foreseeability of the

disparate impact; (7) knowledge of that impact; and

(8) the availability of less discriminatory alternatives.

Id. (alterations adopted) (quoting Greater Birmingham Ministries,

992 F.3d at 1321–22). When a district court applies these factors

and determines that a challenged law was not enacted with

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23-12737 Opinion of the Court 43

discriminatory intent, we review that finding for clear error. See

Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 687–88 (2021).

The plaintiffs rely on six of the Arlington Heights factors to

argue that the district court clearly erred in finding that the plain-

tiffs hadn’t shown a substantial likelihood that discriminatory ani-

mus motivated the Florida Legislature to enact the registration and

affidavit requirements: the impact of the challenged law; the his-

torical background of the provisions; the contemporary statements

and actions of key legislators; the foreseeability of the disparate im-

pact; the knowledge of that impact; and the availability of less dis-

criminatory alternatives.

i. Impact of the Challenged Law (Factor One)

The plaintiffs first argue that the registration and affidavit

requirements show disparate impact on people of Asian descent

and on those of Chinese national origin. As support, the plaintiffs

contend their affidavits demonstrated the “far-reaching” effects

both provisions are having on those of Asian descent or Chinese

national origin. But the affidavits do not address how the registra-

tion and affidavit requirements will disproportionately harm peo-

ple of Asian descent and Chinese national origin as a community

or group. Cf. Hallmark Devs., Inc. v. Fulton Cnty., Ga., 466 F.3d 1276,

1286 (11th Cir. 2006) (“[T]he appropriate inquiry is into the impact

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44 Opinion of the Court 23-12737

on the total group to which a policy or decision applies.” (citation

6

omitted)).

If anything, the plaintiffs’ affidavits establish that the two

provisions will not have a far-reaching effect on those of Asian de-

scent and Chinese national origin. They show, for example, that

the registration requirement does not apply to three-fourths of the

individual plaintiffs—Shen, Xu, and Lui—because they are not

domiciled in China. And the affidavit requirement applies to every

Florida real-estate purchaser, and not only those of Asian descent

or Chinese national original.

ii. Historical Background and Contemporary Statements and Ac-

tions of Key Legislators (Factors Two and Five)

Next, the plaintiffs argue that the historical background of

the registration and affidavit requirements, including contempora-

neous statements from elected officials made when the provisions

were enacted, indicate they were enacted with discriminatory in-

tent. In support, the plaintiffs rely on statements from Florida’s

Governor and a state senator who sponsored SB 264. These

6

For the first time on appeal, the plaintiffs cite a webpage from the Central

Intelligence Agency that they contend shows that “China is populated almost

entirely by people who are Asian.” But because the plaintiffs did not present

this evidence in the district court, we cannot consider it now to find that the

district court clearly erred. See Selman, 449 F.3d at 1332 (“In deciding issues on

appeal, we consider only evidence that was part of the record before the dis-

trict court.” (citations omitted)). The district court cannot clearly err in mak-

ing a finding based on evidence it did not have

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23-12737 Opinion of the Court 45

statements from the Governor and one of SB 264’s sponsors in the

Legislature, the plaintiffs argue, demonstrate a historical back-

ground that “include[d] increased geopolitical tension between the

United States and China” in which “politicians [sought] to foment

and capitalize on anti-China sentiment.” And these statements, the

plaintiffs conclude, show the registration and affidavit require-

ments were enacted to discriminate against persons of Chinese na-

tional origin.

As the district court explained, these statements were insuf-

ficient to show the registration and affidavit requirements were en-

acted with discriminatory intent. First, the statements cited by the

plaintiffs show that national, individual, land, and food security

concerns motivated SB 264’s enactment. There’s nothing in these

statements that show any animus toward Asian people or those of

Chinese national origin. These groups aren’t even referenced.

Second, the plaintiffs rely on the statement of a single state

senator to impute discriminatory intent to the entire Legislature.

But we have cautioned that “the explanatory value of an isolated

statement” made by a single legislator is “limited,” because “[w]hat

motivates one legislator” to speak about a statute “is not neces-

sarily what motivates scores of others to enact it.” See League of

Women Voters, 66 F.4th at 932 (quotation omitted). The statements

of a single member of the Florida Legislature—which cast 31 votes

in the Florida Senate and 95 votes in the Florida House of Repre-

sentatives in favor of the registration and affidavit requirements—

is unhelpful in determining the intent of an entire body because

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46 Opinion of the Court 23-12737

“[o]ne senator does not speak for all the supporters of [a law].” See

id.; see also SB 264: Vote History, Fla. Senate,

https://www.flsenate.gov/Session/Bill/2023/264/?Tab=Vote-

History [perma.cc/S6M6-EGXV] (last accessed June 4, 2024).

That’s true even when one of the bill’s sponsors made the state-

ment. See League of Women Voters, 66 F.4th at 932 (“That the state-

ment was made by the sponsor adds little to its significance.”);

Greater Birmingham Ministries, 992 F.3d at 1324 (“It is also question-

able whether the sponsor speaks for all legislators. The vote of a

sponsor is only one vote[.]”).

iii. Foreseeability of a Disparate Impact and Knowledge of that

Impact (Factors Six and Seven)

The plaintiffs next argue that a disparate impact on Asian

people and those of Chinese national origin was both foreseeable

and known to the Florida Legislature when it enacted the registra-

tion and affidavits requirements. In support, the plaintiffs look to

a Florida Senate report that says some provisions, like the registra-

tion requirement, would apply to those domiciled in China.

But as we explained in discussing the first Arlington Heights

factor, the plaintiffs have not shown that the registration and affi-

davit requirements will have a disparate impact on Asian people

and those of Chinese national origin. Because the plaintiffs haven’t

established a disparate impact, “we are skeptical that the Legisla-

ture could have foreseen a disparate impact.” See League of Women

Voters, 66 F.4th at 938.

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23-12737 Opinion of the Court 47

And the evidence the plaintiffs cite doesn’t dispel our skepti-

cism. While the Senate report concludes that the registration re-

quirement would apply to people domiciled in China, this conclu-

sion doesn’t tell us the likelihood the provisions will have a fore-

seeable impact on Asian people or those of Chinese national origin.

The plaintiffs assume that any impact on those domiciled in China

must also impact those of Chinese national origin, but they have

not offered any evidence to back up that assumption, and “[s]pec-

ulation is no substitute for evidence.” See Coleman v. Hillsborough

Cnty., 41 F.4th 1319, 1327 (11th Cir. 2022) (citation omitted); see also

OJ Com., LLC v. KidKraft, Inc., 34 F.4th 1232, 1249 (11th Cir. 2022)

(quotation omitted) (same); Deal v. Tugalo Gas Co., 991 F.3d 1313,

1321 (11th Cir. 2021) (same); Martin v. Fin. Asset Mgmt. Sys., Inc., 959

F.3d 1048, 1055 (11th Cir. 2020) (quotation omitted) (same). 7

iv. Availability of Less Discriminatory Alternatives (Factor Eight)

Finally, the plaintiffs contend that there were “narrower al-

ternatives” available to the Florida Legislature when enacting the

registration and affidavit requirements. But they identify only one:

they argue that the Florida Legislature “easily could have limited

7

The amicus brief argues that statements from SB 264’s opponents show the

Legislature was on notice of the foreseeably discriminatory impact on Asian

people and those of Chinese national origin. But the amicus brief does not

explain how the views of SB 264’s opponents tell us anything about what the

Legislature foresaw in enacting the bill. As we have explained, “the concerns

expressed by political opponents during the legislative process are not reliable

evidence of legislative intent.” League of Women Voters, 66 F.4th at 940 (citing

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203 n.24 (1976)).

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48 Opinion of the Court 23-12737

the law to foreign powers and their agents.” The fact that the Leg-

islature did not, the plaintiffs maintain, is evidence that it passed

the registration and affidavit requirements with discriminatory in-

tent.

We disagree. First, the affidavit requirement is not discrim-

inatory—it applies to everyone who purchases an interest in Flor-

ida real property after July 1, 2023. See Fla. Stat. § 692.204(6)(a).

And second, the fact that the Legislature “did not include the alter-

native options that [the] [p]laintiffs would have preferred is not ev-

idence of discriminatory intent.” League of Women Voters, 66 F.4th

at 940 (cleaned up) (citing Greater Birmingham, 992 F.3d at 1327).

“The legislative branch,” we’ve emphasized, “is not hamstrung by

judicial review to adopt any amendment that a bill’s opponents

claim would improve it.” Id.

That’s particularly true here, where the Legislature consid-

ered and adopted alternatives that significantly narrowed the scope

of the registration requirement. For example, as originally drafted,

the registration requirement also applied to lawful permanent res-

idents; only United States citizens would have been exempt from

registering real property. See SB 264, §§ 4, 6–7,

https://www.flsenate.gov/Ses-

sion/Bill/2023/264/BillText/Filed/HTML [perma.cc/2FJ7-BE32]

(last accessed June 4, 2024). The final version of the registration

requirement, though, exempted citizens and lawful permanent res-

idents. So, the Florida Legislature clearly “adopted some alterna-

tives” to the original version of the registration requirement in an

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23-12737 Opinion of the Court 49

effort to minimize the bill’s impact. See League of Women Voters, 66

F.4th at 941. The fact that the Legislature didn’t “accept all of

them” does not indicate the district court’s discriminatory intent

8

finding was clear error. See id.

***

Considering the factors together, as we must, the plaintiffs

have not shown that the district court clearly erred in finding no

discriminatory intent as to the registration and affidavit require-

ments under their Arlington Heights intentional discrimination the-

ory. Because the plaintiffs did not establish they were substantially

likely to succeed under either their facial classification theory or

their Arlington Heights intentional discrimination theory challeng-

ing the registration and affidavit requirements, the district court did

not abuse its discretion in denying the preliminary injunction mo-

tion as to their equal protection claim.

8

The plaintiffs ask us to consider another factor in the Arlington Heights analy-

sis, arguing that the text of the registration and affidavit requirements was also

“direct evidence of legislative intent to disproportionately impact” people of

Chinese national origin. They argue that “domiciled in China” “overwhelm-

ing, if not exclusively,” refers to people of Chinese national origin. But the

affidavit requirement doesn’t mention Chinese domicile, so that provision

can’t be direct evidence of discriminatory intent. And the plaintiffs’ argument

as to the registration requirement repackages the same proxy theory that

we’ve already rejected. As we explained earlier, the plaintiffs’ assumption that

Chinese domicile is the same as Chinese national origin is not evidence, and

the plaintiffs didn’t offer any evidence in the district court showing the fit be-

tween the two. See Coleman, 41 F.4th at 1327.

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50 Opinion of the Court 23-12737

2. Likelihood of Success on the Plaintiffs’ Fair Housing Act Claim

Section 3604(a) of the Fair Housing Act—the only provision

of the Act the plaintiffs relied on in their preliminary injunction

motion—makes it an unlawful discriminatory housing practice

“[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.” 42 U.S.C.

§ 3604(a). Section 3615 of the Act provides that any state law “that

purports to require or permit any action that would be a discrimi-

natory housing practice under [the Act] shall to that extent be inva-

lid.” Id. § 3615. In other words, section 3604(a) prohibits a “dis-

criminatory housing practice,” and section 3615 “invalid[ates]” any

state law requiring or permitting the practice. Id. §§ 3602(f), 3615.

In their second claim, the plaintiffs contend that the registra-

tion and affidavit requirements violate the Act in three ways. They

argue the provisions: (1) facially discriminate based on national

origin; (2) were enacted to intentionally discriminate based on na-

tional origin; and (3) have a disparate impact on Asian people and

those of Chinese national origin. The district court abused its dis-

cretion, they argue, when it concluded the plaintiffs weren’t sub-

stantially likely to succeed under those theories.

But the district court did not abuse its discretion because the

registration and affidavit requirements are not discriminatory

housing practices under section 3604(a). The registration require-

ment directs that property owners who are domiciled in China

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23-12737 Opinion of the Court 51

register their interests in Florida real estate; it does not restrict an-

yone from owning property, and it does not require or permit a

person to refuse to sell to, rent to, or negotiate with anyone. See

Fla. Stat. § 692.204(4)(a). And the same is true of the affidavit re-

quirement. It mandates that every purchaser of Florida real prop-

erty sign an affidavit saying their purchase complies with SB 264.

See id. § 692.204(6)(a). We thus fail to see—and the plaintiffs fail to

argue—how these provisions require or permit what section

3604(a) prohibits. Without any violation of the Act, the registra-

tion and affidavit requirements are not substantially likely to be in-

validated by it.

3. Likelihood of Success on the Plaintiffs’ Due Process/Vagueness Claim

“Void for vagueness ‘means that criminal responsibility

should not attach where one could not reasonably understand that

his contemplated conduct is proscribed.’” United States v. Duran,

596 F.3d 1283, 1290 (11th Cir. 2010) (quoting United States v. Nat’l

Dairy Prods. Corp., 372 U.S. 29, 32–33 (1963)). When a vagueness

challenge “does not involve the First Amendment, the analysis

must be as applied to the facts of the case.” Id. (citations omitted).

A criminal statute is unconstitutionally vague when it does

not “define the criminal offense with sufficient definiteness that or-

dinary people can understand what conduct is prohibited” or is so

vague that it “encourage[s] arbitrary and discriminatory enforce-

ment.” United States v. Awan, 966 F.2d 1415, 1424 (11th Cir. 1992)

(quoting Kolander v. Lawson, 461 U.S. 352, 357 (1983)). “[T]here is

a strong presumption supporting the constitutionality of

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52 Opinion of the Court 23-12737

legislation,” Duran, 596 F.3d at 1290, and “[t]he touchstone of the

inquiry” at all times remains “the meaning of the statute in light of

common understanding and practice,” United States v. Hunt, 526

F.3d 739, 743 (11th Cir. 2008) (citation omitted). If “the plain text

of the statute sets forth clearly perceived boundaries, our inquiry”

ends. United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010).

Thus, a statute is not vague because of “the possibility that it will

sometimes be difficult to determine whether the incriminating fact

it establishes has been proved.” United States v. Williams, 553 U.S.

285, 306 (2008). Instead, a statute is vague only if it’s unclear what

constitutes an incriminating fact. Id.

The plaintiffs argue that three terms in the registration and

affidavit requirements are vague: “military installation,” “critical

infrastructure facility,” and “domiciled.” These three terms, the

plaintiffs contend, are too vague to provide notice of what the reg-

istration and affidavit requirements prohibit. We agree with the

district court’s conclusion that the plaintiffs did not show a substan-

tial likelihood of success in proving the provisions were unconsti-

tutionally vague.

Here, the registration and affidavit requirements “set[] forth

clearly perceived boundaries” for the terms “military installation”

and “critical infrastructure facility” by defining them in detail, so

our inquiry as to them quickly ends. Fla. Stat. § 692.201(2), (5); see

9

also Wayerski, 624 F.3d at 1347. While the provisions do not

9

“[M]ilitary installation” is defined as “a base, camp, post, station, yard, or cen-

ter encompassing at least 10 contiguous acres that is under the jurisdiction of

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23-12737 Opinion of the Court 53

specifically define “domiciled,” it’s a standard legal term of art with

a meaning that is easily discernable from common understanding

and practice. See Hunt, 526 F.3d at 743. As we’ve already explained,

a person’s domicile under Florida law is the place a person has both

a physical presence and an intent to remain permanently or indefi-

nitely. See Perez, 164 So. 2d at 562. So, because the statute is clear

as to what constitutes an incriminating fact, Williams, 553 U.S. at

306, the plaintiffs have not established a substantial likelihood of

succeeding on their vagueness claim.

We briefly address the plaintiffs’ counterarguments. First,

they argue that “heightened due process standards” apply because,

they say, this is a strict liability statute. We are not so sure. Florida

law presumes that a criminal statute includes a knowledge require-

ment when it “contains no expression of any intent to remove

knowledge as an element” of the offense. State v. Giorgetti, 868

So. 2d 512, 519 (Fla. 2004). The plaintiffs do not point to any such

expression here, and we cannot find one. But whether the statute

contains a mens rea requirement or not, the plaintiffs’ argument

fails for a more fundamental reason: we apply normal due process

the Department of Defense or its affiliates.” Fla. Stat. § 692.201(5). And “crit-

ical infrastructure facility” is defined as any of the following facilities that “em-

ploy[] measures such as fences, barriers, or guard posts that are designed to

exclude unauthorized persons”; “chemical manufacturing facility”; “refinery”;

“electrical power plant”; “water treatment facility or wastewater treatment

plant”; “liquid natural gas terminal”; “telecommunications central switching

office”; “gas processing plant, including a plant used in the processing, treat-

ment, or fractionation of natural gas”; “seaport”; “spaceport territory”; or “air-

port.” Id. § 692.201(2).

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54 Opinion of the Court 23-12737

principles even when a statute imposes strict liability. See United

States v. Hedges, 912 F.2d 1397, 1403 (11th Cir. 1990); see also Duran,

596 F.3d at 1292 (describing Hedges as “finding [that a] strict liability

offense requiring no scienter was not vague as judged by normal

constitutional standard[s]”). So, either way, normal due process

principles apply here.

Second, the plaintiffs contend that, even if the registration

and affidavit requirements adequately define “military installation”

and “critical infrastructure facility,” the provisions are still vague

because the plaintiffs find it difficult to determine which sites in

Florida qualify as military installations or critical infrastructure fa-

cilities. But that argument misunderstands what’s required for a

due process vagueness challenge. What matters isn’t whether it

may be difficult to determine if a site qualifies as a military installa-

tion or critical infrastructure facility—it’s whether the statute ade-

quately defines the facts that must exist before a site qualifies. See

Williams, 553 U.S. at 306. Because the registration and affidavit re-

quirements do that, neither provision is unconstitutionally vague.

4. Likelihood of Success on the Plaintiffs’ Preemption Claim

Under the Supremacy Clause, “[o]ur Constitution provides

Congress with the power to preempt state law.” United States v.

Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012) (citing U.S. Const.

art. VI, cl. 2). “Although preemption law cannot always be neatly

categorized, we generally recognize three classes of preemption.”

Id. The first, express preemption, “occurs when Congress ‘enacts

a statute containing an express preemption provision.’” Odebrecht

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23-12737 Opinion of the Court 55

Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1274 (11th

Cir. 2013) (alteration adopted) (quoting Arizona v. United States, 567

U.S. 387, 399 (2012)). The second, field preemption, arises when

“Congress, acting within its proper authority, has determined [a

field] must be regulated by its exclusive governance.” Arizona, 567

U.S. at 399 (citation omitted). And third, there’s conflict preemp-

tion. Conflict preemption generally “covers cases where compli-

ance with both federal and state regulations is a physical impossi-

bility.” Odebrecht, 715 F.3d at 1274 (internal quotation marks omit-

ted) (quoting Arizona, 567 U.S. at 399).

But there is another component to conflict and field preemp-

tion that applies here: they also cover cases “where the challenged

state law ‘stands as an obstacle to the accomplishment and execu-

tion of the full purposes and objectives of Congress.’” Id. (quoting

Arizona, 567 U.S. at 399–400). “In this broader form, the lines be-

tween conflict preemption and field preemption are admittedly

blurry, as the Supreme Court has recognized.” Id. (citing Crosby v.

Nat’l Foreign Trade Council, 530 U.S. 363, 372 n.6 (2000); see also Eng-

lish v. Gen. Elec. Co., 496 U.S. 72, 79–80 n.5 (1990) (observing the

three categories of preemption are not rigidly distinct and that

“field pre-emption may be understood as a species of conflict pre-

emption: A state law that falls within a pre-empted field conflicts

with Congress’ intent (either express or plainly implied) to exclude

state regulation.”). “What is a sufficient obstacle is a matter of

judgment, to be informed by examining the federal statute as a

whole and identifying its purpose and intended effects[.]” Ode-

brecht, 715 F.3d at 1274 (quoting Crosby, 530 U.S. at 373).

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56 Opinion of the Court 23-12737

Relying on this blurry component to conflict and field

preemption, the plaintiffs contend that the federal foreign invest-

ment review regime preempts the registration and affidavit re-

quirements. The plaintiffs specifically look to the Foreign Invest-

ment Risk Review Modernization Act, which grants the President

national-security review and approval over purchases of real estate

by “foreign persons” in the United States if the real estate is located

near airports, seaports, military installations, and other sensitive fa-

cilities and therefore might subject a sensitive facility to national

security threats. The Modernization Act, the plaintiffs argue,

“strikes a balance” between “foreign policy” and “national security

considerations.” As the plaintiffs see it, the registration and affida-

vit requirements disrupt that balance by “sweep[ing] . . . aside”

Congress’s choice to allow the President to review purchases on a

case-by-case basis and “usurp[s] the President’s authority” to do so.

Within the blurry overlap between conflict and field

preemption, both we and the Supreme Court have reviewed simi-

lar preemption claims where the plaintiffs have alleged that state

laws conflicted with federal foreign policy. Reviewing Massachu-

setts’s “Burma law,” for example, which made it unlawful—with

some exceptions—for Massachusetts state agencies to purchase

goods and services from people and organizations doing business

with Burma, the Supreme Court held the state law was preempted

by Congress’s sanctions in the Foreign Operations, Export Financ-

ing, and Related Programs Appropriations Act. Crosby, 530 U.S. at

388.

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23-12737 Opinion of the Court 57

As the Supreme Court explained in Crosby, Congress “im-

pose[d] . . . sanctions directly on Burma,” “authorize[d] the Presi-

dent to impose further sanctions,” and “direct[ed] the President to

work to develop a comprehensive, multilateral strategy to bring

democracy to and improve human rights practices and the quality

of life in Burma.” Id. at 368–69 (quotation omitted). Since the

state’s Burma law went further than “Congress’s specific delega-

tion” of “flexible discretion” to the President, “with [a] limitation

of sanctions to a limited scope of actions and actors, and with di-

rection to develop a comprehensive, multilateral strategy,” the

state Burma law conflicted with the federal sanctions regime and

was thus preempted by it. See id. at 388.

Following Crosby, we held, in Faculty Senate of Florida Inter-

national University v. Winn, that Florida’s Travel Act “prohibit[ing]

the use, in connection with travel to state sponsors of terror, of

funds made available by the State to state universities” was not

preempted by federal laws “touch[ing] on many subjects,” includ-

ing “trade,” “financial matters,” and “travel.” 616 F.3d 1206, 1207–

09 (11th Cir. 2010). Although we acknowledged the Travel Act un-

doubtedly implicated foreign affairs to some degree, it did not, we

said, “clash[] sharply with federal law or policy,” and whatever

“brush” it had was simply “too indirect, minor, incidental, and pe-

ripheral to trigger the Supremacy Clause[].” Id. at 1208. Distin-

guishing the Florida law from Massachusetts’s Burma law in

Crosby, we noted that the Travel Act: (1) did “not unilaterally se-

lect[] by name a foreign country on which it ha[d] declared, in ef-

fect, some kind of economic war”; (2) did not “prohibit . . . anyone

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58 Opinion of the Court 23-12737

from traveling any place”; (3) “d[id] not penalize anyone for travel-

ing any place”; (4) did “not attempt to prohibit, or even to obstruct,

trading broadly by anyone with anyone”; and critically here, it

(5) relied on the federal government’s determinations concerning

the countries that qualified as state sponsors of terrorism. Id. at

1210.

In contrast, a few years later, in Odebrecht, we held that Flor-

ida’s “Cuba Amendment,” which, “[b]roadly speaking[,] . . . pre-

vent[ed] any company that [did] business in Cuba—or that [was] in

any way related to a company that [did] business in Cuba—from

bidding on state or local public contracts in the State of Florida,”

was preempted by the federal sanctions regime against Cuba. 715

F.3d at 1272, 1290. Unlike the law in Faculty Senate, we said, Florida

had singled out a specific country and effectively declared an eco-

nomic war on it, despite Congress “remain[ing] active in legislating

with respect to Cuba” and the President’s “considerable authority

and discretion in the field of Cuban sanctions.” Id. at 1276–78.

Seizing on Odebrecht and Crosby, the plaintiffs argue that the

registration and affidavit requirements are preempted by the fed-

eral foreign investment review regime. Under that regime, foreign

direct investment, business transactions, foreign takeovers of

United States businesses, and qualifying real estate transactions are

subject to national security review by the President acting with the

advice of the Committee on Foreign Investment in the United

States. See generally 50 U.S.C. § 4565; 31 C.F.R. § 802.101–1108. As

to real estate, the Modernization Act gave the President authority

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23-12737 Opinion of the Court 59

to review public and private real estate transactions “to determine

the effects of the transaction on the national security of the United

States.” See 50 U.S.C. § 4565(a)(4)(B)–(C), (b)(1)(A)(i). And it ex-

panded that authority to include real estate transactions involving

a “foreign person” trying to purchase “private or public real estate

that . . . is located in the United States.” See id. § 4565(a)(4)(B)(ii).

To qualify for review, the property must be “in close proximity to

a United States military installation or another facility or property

of the United States Government that is sensitive for reasons relat-

ing to national security,” “reasonably provide the foreign person

the ability to collect intelligence on activities being conducted at

such an installation, facility, or property,” or “otherwise expose na-

tional security activities at such an installation, facility, or property

to the risk of foreign surveillance.” Id. Purchases of a “single ‘hous-

ing unit’”—as defined by the Census Bureau—and real estate in

“urbanized areas”—again, also defined by the Census Bureau—

however, are exempt from review. Id. § 4565(a)(4)(C)(i). After the

committee submits a qualifying transaction for presidential review,

the President may “suspend or prohibit” it. Id. § 4565(d)(1).

Consistent with Crosby, Faculty Senate, and Odebrecht, there

is no substantial likelihood that the federal foreign investment re-

view regime preempts the registration and affidavit requirements.

The two provisions do not “stand[] as an obstacle to the accom-

plishment and execution of [Congress’s] full purposes and objec-

tives.” See Odebrecht, 715 F.3d at 1274 (quoting Crosby, 530 U.S. at

373). First, the plaintiffs fail to explain how the registration and

affidavit requirements conflict with the discretion the

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60 Opinion of the Court 23-12737

Modernization Act affords the President to review and block real

estate transactions, and we fail to see how they do. The registra-

tion and affidavit requirements impose property registration rules

and require affidavits to accompany real-property purchases. Fla.

Stat. § 692.204(4)(a), (6)(a). But they do not interfere with the

Committee on Foreign Investment’s or the President’s review of

covered transactions under the foreign investment review regime.

At most, these provisions complement the federal foreign invest-

ment review regime since the information they require property

purchasers and owners to report would assist the federal govern-

ment’s ability to “review [a] covered [real estate] transaction to de-

termine the effects of the transaction on the national security of the

United States.” See 50 U.S.C. § 4565(a)(4)(B)–(C), (b)(1)(A)(i). So,

unlike the state Burma law in Crosby or the Cuba Amendment in

Odebrecht, these provisions do not conflict with the Act’s “purpose

and intended effects[.]” See Crosby, 530 U.S. at 373, 377; Odebrecht,

715 F.3d at 1286.

Second, the registration requirement and affidavit require-

ments did not prohibit any kind of transaction. Unlike the prohibi-

tions at issue in Odebrecht, which placed affirmative restrictions bar-

ring companies that did business with Cuba from bidding on state

or local contracts, the registration and affidavit requirements do

not prohibit or otherwise restrict anyone from completing transac-

tions that the federal foreign investment review regime would oth-

erwise allow. Odebrecht, 715 F.3d at 1287. That puts an even

greater distance between these provisions and the Cuba Amend-

ment in Odebrecht, which, as we’ve emphasized, was

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23-12737 Opinion of the Court 61

“absolutely. . . intended to ‘prohibit’ or ‘obstruct’” trade that was

not prohibited by Congress’s own sanctions. See id. (quoting Fac-

ulty Senate, 616 F.3d at 1210).

Instead, the registration and affidavit requirements are more

like the Travel Act in Faculty Senate. There, state law comple-

mented the federal government’s approach to state sponsors of ter-

rorism by piggybacking on the federal government’s own determi-

nations of the countries qualifying as state sponsors of terrorism.

See Faculty Senate, 616 F.3d at 1210. Even though we acknowledged

the Travel Act implicated foreign affairs to some degree, we con-

cluded it did not “clash[] sharply with federal law or policy.” Id. at

1208. Whatever “brush” state law had with federal law was simply

“too indirect, minor, incidental, and peripheral to trigger the Su-

premacy Clause[].” Id. The same is true here.

The plaintiffs resist this conclusion by arguing that the reg-

istration and affidavit requirements’ specific identification of China

and other countries “singles out particular countries and nationali-

ties in a manner calculated to infringe on the federal government’s

foreign affairs powers.” But each of the countries defined in SB 264

as “of concern,” including China, is already “of concern” under fed-

eral law. See, e.g., 15 C.F.R. § 791.4 (2024) (listing China, Cuba,

Iran, North Korea, Russia and Venezuela’s Maduro Regime as for-

eign adversaries); 48 C.F.R. § 252.225-7050(a)(5)(i) (2024) (listing

Iran, North Korea and Syria as state sponsors of terrorism). As in

Faculty Senate, although the registration and affidavit requirements

may implicate foreign affairs to some degree, the two provisions

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62 Opinion of the Court 23-12737

piggyback on the federal government’s own determinations of

countries of concern and do not “clash[] sharply with federal law

or policy.” See Faculty Senate, 616 F.3d at 1208–10. And second, as

discussed above, neither provision interferes with or otherwise al-

ters the federal government’s review of real estate purchases by

foreign persons in any way. If anything, the information real-prop-

erty purchasers and owners must report under the two provisions

will better assist the federal government’s ability to “review a cov-

ered [real estate] transaction to determine the effects of the trans-

action on the national security of the United States.” See 50 U.S.C.

§ 4565(a)(4)(B)–(C), (b)(1)(A)(i).

For its part, the dissenting opinion concludes that SB 264 is

preempted by the federal foreign investment review regime be-

cause the Florida law “regulates single home purchases that are ex-

cluded from” the federal regime and “blanketly bans all transac-

tions which fall under its ambit.” But the dissenting opinion’s focus

is on the purchase restriction, which the plaintiffs have not shown

they have standing to challenge. The registration and affidavit re-

quirements do not regulate single home purchases and do not ban

all transactions. And the dissenting opinion does not explain how

the registration and affidavit requirements conflict with the federal

10

foreign investment review regime. We don’t see how they do.

10

The dissenting opinion also says, as part of its preemption discussion, that

the registration and affidavit requirements lack a mens rea element. But, as

we’ve already explained, Florida law presumes a criminal statute includes a

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23-12737 Opinion of the Court 63

For those reasons, we agree with the district court that the

plaintiffs aren’t substantially likely to succeed on their preemption

claim.

IV. CONCLUSION

Because we conclude that the plaintiffs have not shown they

have standing to challenge the purchase restriction, we reverse that

part of the district court’s order and remand for the district court

to deny the preliminary injunction motion without prejudice as to

the purchase restriction. As to the registration and affidavit re-

quirements, we conclude that the district court did not abuse its

discretion in denying the plaintiffs’ preliminary injunction motion.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

knowledge requirement when it “contains no expression of any intent to re-

move knowledge as an element” of the offense. Giorgetti, 868 So. 2d at 519.

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23-12737 WILSON, J., Dissenting 1

WILSON, Circuit Judge, dissenting:

Under the guise of safeguarding national security, the Flor-

ida Legislature restricted the ability of citizens of six “countries of

concern” 1 from purchasing property in certain locations and, with

very narrow exceptions, prohibited Chinese citizens from purchas-

ing any property in the state. Fla. Stat. §§ 692.202–.204. Senate Bill

264 is part of a modern resurgence of “alien land laws,” 2 which

were prevalent in the early part of last century but fell out of favor

around the same time as other laws restricting property ownership

based on race or ancestry. Governor Ron DeSantis described the

Bill as “the strongest legislation in the nation to date to counteract

the influence of the United States’ greatest economic, strategic,

and security threat—the Chinese Communist Party.” 3

1 Defined as “the People’s Republic of China, the Russian Federation, the Is-

lamic Republic of Iran, the Democratic People’s Republic of Korea, the Re-

public of Cuba, the Venezuelan regime of Nicolás Maduro, [and] the Syrian

Arab Republic.” Fla. Stat. § 692.201(3).

2 More than thirty states have introduced similar legislation restricting Chinese

property ownership. For example, Louisiana has approved bills that prohibit

Chinese citizens from acquiring property within the state or leasing property

within fifty miles of military sites. See Emily Behzadi Cárdenas, National Secu-

rity or National Origin? The Implications of Florida’s Alien Land Law Under the Fed-

eral Fair Housing Act, 75 S.C. L. Rev. 195, 204‒05 (2023); see also Jonaki Mehta,

Ashley Brown, Ailsa Chang, Slew of New Landownership Bills are Reminiscent of

Anti-Asian Alien Land Laws, NPR (Aug. 28, 2023, 5:08 PM),

https://perma.cc/GVU2-JF6F.

3 Press Release, Exec. Off. of the Governor, Governor Ron DeSantis Cracks

Down on Communist China (May 8, 2023), https://perma.cc/XY5W-3UXP.

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2 WILSON, J., Dissenting 23-12737

SB 264 restricts the purchase and ownership of real property

by persons domiciled in China. Specifically, “[a]ny person who is

domiciled in the People’s Republic of China and who is not a citi-

zen or lawful permanent resident of the United States,” cannot “di-

rectly or indirectly own . . . or acquire . . . any interest . . . in real

property,” regardless of the land’s proximity to military installa-

tions or critical infrastructure. Fla. Stat. § 692.204(1)(a). Individuals

with a valid non-tourist visa, or those who have been granted asy-

lum, may purchase one residential property up to two acres so long

as it is not within five miles of any military installation. 4 Id.

§ 692.204(2). Chinese people and entities who acquire land in vio-

lation of the provision commit a third-degree felony. Id.

§ 692.204(8). Anyone who knowingly sells to them commits a mis-

demeanor of the first degree. Id. § 692.204(9).

In addition to the restrictions on purchase and ownership,

persons domiciled in China who are not citizens or lawful perma-

nent residents of the United States must register their names and

the addresses, parcel numbers, and legal descriptions of any real

property in which they own “more than a de minimus indirect

4 There are approximately twenty military bases in Florida, with one in almost

every highly populated city, and numerous other sites that qualify as military

installations. See University of South Florida, Florida Military Bases,

https://perma.cc/9DC6-8UJK. Florida has not provided a map of land that

reflects where individuals can move to comply with the restriction. At oral

argument, it could not identify how many square miles throughout the state

are not within five miles of a military installation. See Oral Argument at 36:50,

Shen v. Comm’r, No. 23-12737 (11th Cir. Apr. 19, 2024).

USCA11 Case: 23-12737 Document: 74-1 Date Filed: 11/04/2025 Page: 66 of 83

23-12737 WILSON, J., Dissenting 3

interest.” Id. § 692.204(4)(a). Citizens of any of the seven “countries

of concern” must register any real property within ten miles of any

“military installation” or “critical infrastructure facility.” Id.

§ 692.203(3)(a). Finally, buyers of real property in Florida must at-

test in an affidavit under penalty of perjury that their purchase

complies with SB 264. Id. § 692.204(6)(a).

Weeks after SB 264 was signed into law, four Chinese citizens

lawfully residing in Florida and one real estate business entity (col-

lectively, Plaintiffs) moved to enjoin its enforcement. They assert

that SB 264 violates the Equal Protection Clause and the Fair Hous-

ing Act (FHA), is unconstitutionally vague, and is preempted by the

Committee for Foreign Investment in the United States (CFIUS).

Denying their motion, the district court found that while at least

one Plaintiff had established standing to pursue each claim, no

Plaintiff was likely to succeed on the merits.

Now, the majority rejects all of Plaintiffs’ claims. First, the

majority finds that all Plaintiffs lack standing to challenge the pur-

chase and ownership restriction because they have abandoned

China as their domicile, they do not imminently intend to purchase

more property in Florida, or both. Then, evaluating only the re-

quirements to register property and submit an affidavit to the state,

the majority finds that Plaintiffs are not likely to succeed on the

merits of any of their claims and that the district court did not

abuse its discretion in denying a preliminary injunction.

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4 WILSON, J., Dissenting 23-12737

While I have doubts about the majority’s analysis regarding

Plaintiffs’ standing to challenge SB 264’s purchase restriction, 5 I

5 I am skeptical of the majority’s conclusion that no Plaintiff has standing to

challenge the purchase restriction in part because Plaintiffs are domiciled not

in China but rather in Florida. Yifan Shen and Yongxin Liu have H-1B nonim-

migrant work visas, which are temporary. See 8 U.S.C. § 1184(g)(4) (prescrib-

ing a six-year time limit). It seems odd to me that Plaintiffs can form the req-

uisite present intent to make Florida their home indefinitely when, to obtain

the H-1B visas, they had to declare that they will leave the United States when

their visas expire. See 8 C.F.R. § 214.1(a)(3)(ii). True, Florida law recognizes

that, “in absence of a federal announcement to the contrary,” a political refu-

gee permitted and intending to stay in the United States indefinitely may es-

tablish domicile in the United States. Perez v. Perez, 164 So. 2d 561, 562 (Fla. 3d

DCA 1964). But due to the temporary nature of their H-1B visas, Plaintiffs are

not permitted under federal law to remain in the United States permanently

or indefinitely. See 8 U.S.C. § 1184(g)(4). Making Florida or anywhere else in

the U.S. their permanent home would require these Plaintiffs to apply for and

obtain lawful permanent resident status. Neither has occurred, so while their

current residence is Florida, their domicile may still be China. This court is not

tasked with definitively determining Plaintiffs’ domicile to confer standing.

The fact that Plaintiffs self-identify as Chinese domiciliaries, see Weiler v.

Weiler, 861 So. 2d 472, 477 (Fla. Dist. Ct. App. 2003), and that the district court

classified them as Chinese domiciliaries is enough for present purposes. And

since the inquiry is whether Plaintiffs’ conduct is “arguably proscribed by the

statute,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (citation

modified), it follows that at least two Plaintiffs are subject to SB 264 and face

a substantial risk of future harm. See id. at 158.

The majority also explains that several Plaintiffs, including Shen, have signed

a contract for property before the effective date of SB 264—July 2023. As a

result, Plaintiffs have an interest in the property via equitable title. I won’t ar-

gue with the majority’s reasoning there. But Liu has not entered a contract for

property. Rather, he is “currently planning to purchase a second property in

Pelican Bay, Florida as an investment property and vacation home for [him-

self] and [his] parents.” Liu’s intention to purchase a property after July 2023

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23-12737 WILSON, J., Dissenting 5

dissent to address the majority’s dubious equal protection and

preemption analyses.

I.

The Fourteenth Amendment prohibits states from

“deny[ing] to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV § 1. The equal protection

guarantee extends to citizens and noncitizens alike. Yick Wo v. Hop-

kins, 118 U.S. 356, 369 (1886) (“The fourteenth amendment to the

constitution is not confined to the protection of citizens”);

Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420 (1948). And

when a state treats people differently under the law based on their

status as a citizen or noncitizen (in other words, based on alienage),

that classification is “inherently suspect and subject to close judicial

scrutiny.” Graham v. Richardson, 403 U.S. 365, 372 (1971); see also Ber-

nal v. Fainter, 467 U.S. 216, 219, 227–28 (1984) (applying strict scru-

tiny to alienage classification); Examining Bd. of Eng’rs, Architects &

Surveyors v. Flores de Otero, 426 U.S. 572, 602 (1976) (same).

shows that he would be subject to the purchase restrictions of SB 264 and thus

has standing to challenge that provision. See Susan B. Anthony List, 573 U.S. at

159 (“[A] plaintiff satisfies the injury-in-fact requirement where he alleges an

intention to engage in a course of conduct arguably affected with a constitu-

tional interest, but proscribed by a statute.” (internal quotation marks omit-

ted)).

Unlike the majority, I would have affirmed the district court’s decision finding

at least one Plaintiff has standing to sue under the purchase restriction of SB

264.

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6 WILSON, J., Dissenting 23-12737

We apply this more searching scrutiny because noncitizens

are just “the type of ‘discrete and insular’ minorities who have no

political voice” and so cannot use the political process to protect

their interests. Estrada v. Becker, 917 F.3d 1298, 1310 (11th Cir. 2019)

(quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4

(1938)); Foley v. Connelie, 435 U.S. 291, 294 (1978). Of course, there

are some exceptions to this rule that make a more forgiving form

of judicial review operable. See, e.g., Ambach v. Norwick, 441 U.S. 68,

75 (1979) (government function exception); Plyler v. Doe, 457 U.S.

202, 223–26 (1982) (“undocumented status” exception). But, as

none apply here, I would follow more than a half-century of post-

Civil Rights era precedent and review SB 264 under strict scrutiny.

Ignoring that precedent, the majority instead resurrects case

law consigned to the dustbins of history to justify upholding Flor-

ida’s law. Over one hundred years ago, the Supreme Court held that

“each state, in the absence of any treaty provision to the contrary,

has power to deny to aliens the right to own land within its bor-

ders.” Terrace v. Thompson, 263 U.S. 197, 217 (1923); see also Porter-

field v. Webb, 263 U.S. 225, 232–33 (1923); Webb v. O’Brien, 263 U.S.

313, 324–26 (1923); Frick v. Webb, 263 U.S. 326, 332–34 (1923) (col-

lectively, the Terrace cases). The Court explained that the state law

restricting noncitizens from purchasing and owning property was

reasonably based on the state’s interest in its own “safety and

power” as well as federal naturalization law, which delineated who

could seek American citizenship. Terrace, 263 U.S. at 220–21.

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23-12737 WILSON, J., Dissenting 7

(“[T]he natives of European countries are eligible. Japanese, Chi-

nese and Malays are not.”).6

6 In 1923, the year the Terrace cases were decided, Asian people were largely

ineligible to become citizens in the first place. Naturalization was limited to

“free white persons,” native Africans and “persons of African descent.” See

United States v. Bhagat Singh Thind, 261 U.S. 204, 207 (1923). In fact, the Chinese

Exclusion Act, in effect from 1882 until 1943, specifically barred Chinese peo-

ple from seeking citizenship in the United States. Chinese Exclusion Act, ch.

126, 22 Stat. 58, repealed by Magnuson Act, ch. 344, 57 Stat. 600. Strikingly, it

included its own “registration requirement,” requiring Chinese immigrants to

register and obtain a certificate of residence. Id.; see also National Archives,

Chinese Exclusion Act (1882) (2023), https://perma.cc/C4T4-98FN.

During the 1923 Term, the Supreme Court also decided that a Sikh Indian

World War I veteran was not eligible for naturalized citizenship in the United

States because he did not meet a “common” definition of white. Bhagat Singh

Thind, 261 U.S. at 209 (“It may be true that the blond Scandinavian and the

brown Hindu have a common ancestor in the dim reaches of antiquity, but

the average man knows perfectly well that there are unmistakable and pro-

found differences between them to-day . . . .”); see also Takao Ozawa v. United

States, 260 U.S. 178, 190, 198 (1922) (denying citizenship to man born in Japan,

because he was “clearly of a race which is not Caucasian”).

Four years later, the Supreme Court held that it was “within the discretion of

the state” to prohibit American-born citizens of Chinese immigrants from at-

tending “white schools.” Gong Lum v. Rice, 275 U.S. 78, 86–87 (1927) (citing

Plessy v. Ferguson, 163 U.S. 537, 544, 545 (1896)) (reasoning that “the establish-

ment of separate schools for white and colored children . . . have been held to

be a valid exercise of the legislative power”).

The Court’s approach to alienage restrictions began to change after the Sec-

ond World War. See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420–21

(1948). But it was not until 1952 that Congress abolished the category from

U.S. immigration law, which in practice applied only to people of Asian

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8 WILSON, J., Dissenting 23-12737

Nowadays, we recognize that “[t]he distinction between cit-

izens and [noncitizens]” is “ordinarily irrelevant to private activity.”

Ambach, 441 U.S. at 75. Primarily only when the distinction is “fun-

damental to the definition and government of a State” do we eval-

uate alienage classifications by states under a more limited rational

relationship test. Id. at 75, 80; see also Foley, 435 U.S. at 299–300 (re-

viewing citizenship requirement for state police officers for a ra-

tional relationship); Cabell v. Chavez-Salido, 454 U.S. 432, 447 (1982)

(upholding state law imposing citizenship requirement for “peace

officers” as applied to probation officers); but see Bernal, 467 U.S. at

221 (declining to apply exception to citizenship requirement for

Texas public notaries); In re Griffiths, 413 U.S. 717, 719–22 (1973)

(subjecting state statute that prohibited noncitizens from becom-

ing members of the State Bar to strict scrutiny). We engage in more

limited review in these circumstances because we recognize that “a

State may establish its own form of government and limit the right

to govern to those who are full-fledged members of the political

community.” Bernal, 467 U.S. at 221. Because SB 264 targets noncit-

izens who are in the country legally and restricts private activity,

not functions at the “heart of representative government,” none of

these exceptions apply. See id.

While the Supreme Court has not explicitly overruled the

Terrace cases, the Court has questioned their continued validity. In

Graham, the Supreme Court recognized that in the past it had

descent. See Immigration and Nationality Act of 1952, Pub. L. 82–414, 66 Stat.

163 (codified at 8 U.S.C. ch. 12).

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23-12737 WILSON, J., Dissenting 9

“upheld statutes that . . . deny to [noncitizens] the right to acquire

and own land,” based on a state’s ‘special public interests’ in favor-

ing its own citizens when distributing limited resources. 403 U.S. at

372–73. But its subsequent decision in Takahashi “cast doubt on the

continuing validity of the special public-interest doctrine” under-

pinning those decisions “in all contexts.” Id. at 373–74 (citing 334

U.S. 410). Later, in Ambach, the Court recognized that its “decisions

gradually have restricted the activities from which States are free

to exclude [noncitizens]” and its “more recent decisions have de-

parted substantially from the public-interest doctrine.” 441 U.S. at

73. And since that time, “[t]he Court has tended to affirm state clas-

sifications regarding political or democratic rights afforded to

[noncitizens] and has tended to invalidate those classifications that

limited the distribution of economic benefits or regulated commer-

cial opportunities.” Korab v. Fink, 797 F.3d 572, 592 (9th Cir. 2014)

(Byebee, J., concurring).

The evolution of the equal protection jurisprudence com-

pels courts to be discerning in applying it. Recognizing the shift, I

find the majority’s reliance on the Terrace cases to be misplaced. It

is unclear why the majority is satisfied not only to rest on their “in-

creasingly wobbly, moth-eaten foundations” but also to build upon

them with rust-corroded beams. See State Oil Co. v. Khan, 522 U.S. 3,

20 (1997). The foundation in question was laid during the height of

our nation’s problematic history with Asian immigrants. But our

tolerance for this discrimination has waned since the era where

Asian people were barred from becoming U.S. citizens and the Su-

preme Court sanctioned segregated schools. Now, the premises on

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10 WILSON, J., Dissenting 23-12737

which the Terrace cases rest—deference to states’ generalizations

about its own “power” and the need for “safety” from outsiders to

support discriminatory policies—have been “overruled in the court

of history” cf. Trump v. Hawaii, 585 U.S. 667, 710 (2018). Like other

“shameful precedent,” id. at 754 (Sotomayor, J., dissenting), the

Court has set those notions aside in favor of meticulous scrutiny of

discriminatory classifications based on where someone is from. Re-

grettably, the majority ignores the fortifications made to our prec-

edent and yet again exemplifies how “selective history unmoored

from [the] present-day . . . can be wielded to achieve judges’ pre-

ferred outcomes.” NRA v. Comm’r, 133 F.4th 1108, 1162 (11th Cir.

2025) (en banc) (Wilson, J., concurring).

Even though I strongly doubt the continued validity of the

Terrace cases, I would also find that the Terrace cases do not apply

to the case before us. There are two distinctions that set this case

outside the grasp of Terrace, and the majority have overlooked

both.

First, as the majority points out, the Supreme Court’s deci-

sion in Terrace focused on whether the Washington law was “arbi-

trary and capricious” to determine whether it violated the Equal

Protection Clause. The Court concluded that it was not because

the classification relied on by the Washington law was created by

Congress, not by the state. 263 U.S. at 220. The backing of Con-

gress provided the “reasonable basis” for the law. Id. No such basis

is present here. The Court explained that Congress has the right to

“grant or withhold the privilege of naturalization upon any

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23-12737 WILSON, J., Dissenting 11

grounds or without any reason, as it sees fit” and the state “may

assume” that these classifications are “substantial and reasonable.”

Id. The Washington state law used a blanket classification that pri-

marily impacted Asian noncitizens. But here, the discriminatory

classification that targets Chinese citizens is written directly into

the statute. It finds no backing in Congress or any other federal

classification. The majority has ignored a crucial step in applying

Terrace reasoning. It is not simply that a “state may deny landown-

ership completely to noncitizens.” The denial itself must not be ar-

bitrary, capricious, or unreasonable. The Terrace Court relied on a

Congressional classification to support the Washington law over

one hundred years ago. That classification no longer exists. 7 And

the majority offers nothing in its place.

Second, the majority assumes that if a state can deny land

ownership to all noncitizens, then it also has the lesser power of

compelling registration for certain noncitizens without triggering

strict scrutiny. As I have discussed, the law in Terrace applies “alike

and equally to all” noncitizens. Id. at 218. It is this equal and broad

application that renders it neither “capricious” nor “arbitrary.” The

majority suggests that if a broad denial to all noncitizens is valid,

then a narrow denial falls under the same umbrella. But to narrow

the scope is to lose its validity. In Terrace, the law was not arbitrary

7 See Gabriel J. Chin & Paul Finkelman, The “Free White Person” Clause of the

Naturalization Act of 1790 as Super-Statute, 65 WM. & Mary L. Rev. 1047, 1110

(Apr. 2024) (tracing Congress’ elimination of racial restrictions on naturaliza-

tion in the first half of the twentieth century).

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12 WILSON, J., Dissenting 23-12737

or capricious because it was applied “alike and equally” to all noncit-

izens. 8 In contrast, SB 264 explicitly discriminates against nonciti-

zens domiciled in China. Isolating certain groups increases the level

of facial discrimination while undermining the reasonable basis

that the Court scrounged up in Terrace. The Terrace cases give us

no indication that a law any less broad or applied any less equally

should be given the same treatment. And I find no reason to extend

it today.

Therefore, Plaintiffs are likely to succeed on their equal pro-

tection claim. Strict scrutiny should apply and, as the district court

noted, Florida has not even tried to pass the test. For these reasons,

I would reverse the district court’s order denying the preliminary

injunction.

II.

The Supremacy Clause of the U.S. Constitution mandates

that federal law—“the supreme Law of the Land”—takes prece-

dence over “Laws of any State to the Contrary.” U.S. Const. art. VI,

cl. 2. The Supremacy Clause gives Congress the power to preempt

“any state law that ‘interferes with, or is contrary to,’ federal law.”

Estrada, 917 F.3d at 1302 (alterations adopted) (quoting Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)). Federal law may preempt

state law expressly, by “decid[ing] a field will be regulated

8 And the noncitizen land law reviewed in Porterfield v. Webb, 263 U.S. 225

(1923), was more even-handed than the one in Terrace—it excluded all noncit-

izens, even those eligible for naturalization. Id. at 233.

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23-12737 WILSON, J., Dissenting 13

exclusively by the federal government,” or “when the two conflict.”

Id. at 1303. Cases where federal and state laws conflict include

“where compliance with both federal and state regulations is a

physical impossibility, and . . . where the challenged state law

stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Arizona v. United States,

567 U.S. 387, 399 (2012) (internal quotation marks and citations

omitted). “What is a sufficient obstacle is a matter of judgment, to

be informed by examining the federal statute as a whole and iden-

tifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 373 (2000).

In 1975, President Gerald Ford, articulating joint goals of en-

suring “national security” while “promot[ing] economic growth,

productivity, competitiveness, and job creation,” established

CFIUS, an interagency body tasked with assessing national security

risks of foreign investments in the U.S. economy. Exec. Order No.

11,858, 40 Fed. Reg. 20,263 (May 9, 1975); 50 U.S.C. § 4565(k); 31

C.F.R. § 800.501. The United States is the world’s largest recipient

of foreign investment, and for nearly fifty years, CFIUS—chaired

by the Secretary of the Treasury9—has investigated investments in-

volving critical infrastructure, “remain[ing] responsive to an

9 CFIUS is comprised of the Attorney General and Secretaries of Homeland

Security, Defense, Commerce, State, and Energy. The Director of National

Intelligence and the Secretary of Labor serve as non-voting members. 5 U.S.C.

§ 4565(k)(2)–(3).

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14 WILSON, J., Dissenting 23-12737

evolving national security landscape and the nature of the invest-

ments that pose related risks.” 10

In 2018, Congress expanded CFIUS’s authority when it en-

acted the Foreign Investment Risk Review Modernization Act of

2018 (FIRRMA), Pub. L. 115–232, 132 Stat. 1636. FIRRMA broad-

ened CFIUS’s jurisdiction to include review of transactions by or

to foreign persons or entities of real estate “in close proximity to a

United States military installation or another facility or property of

the United States Government that is sensitive for reasons relating

to national security.” 50 U.S.C. § 4565(a)(4)(B)(ii)(II)(bb)(AA).

FIRRMA excludes single family housing units from CFIUS review.

Id. § 4565(a)(4)(C)(i)(I).

CFIUS utilizes a multi-step process for screening invest-

ments. The screening process begins when a party to a transaction

files notice with CFIUS. 31 C.F.R. § 800.501. The filing triggers a

forty-five day review period during which CFIUS conducts a “risk-

based analysis,” considering:

(a) The threat, which is a function of the intent and

capability of a foreign person to take action to impair

the national security of the United States;

10 Cathleen D. Cimino-Isaacs & Karen M. Sutter, Cong. Rsch. Serv., IF10177,

The Committee on Foreign Investment in the United States 1 (2024) (quotation

marks omitted), https://perma.cc/7AGM-BNU2.

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23-12737 WILSON, J., Dissenting 15

(b) The vulnerabilities, which are the extent to which

the nature of the U.S. business presents susceptibility

to impairment of national security; and

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