by Abdul-Hakim Shabazz
Indiana lawmakers may be buying themselves another lawsuit.
This lawsuit wouldn’t be over the usual things that the State of Indiana gets sued for, i.e., abortion, gun rights, those types of things. This time, the State may get sued for possibly violating the Commerce Clause of the U.S. Constitution.
Abdul, I’m not very familiar with that one. No worries, unless you went to law school, I doubt you’ve ever heard of it. And even if you went to law school, this was Constitutional Law 101, so to speak, and I’d be shocked if you remembered it unless you either taught it or practiced it.
This particular piece of potential litigation involves legislation concerning a bill that would limit/restrict the sale of agricultural land to foreign entities. In a nutshell, House Bill 1183, which has been authored by State Representative Kendell Culp of Rensselaer, would prohibit purchasers from “adversarial countries” from owning or leasing Hoosier farmland.
A list of those countries is kept by the U.S. Department of Commerce, and it currently includes six nations: Russia, China, North Korea, Iran, Cuba and Venezuela.
The proposal builds on a bill passed during the 2022 session, which limited foreign entities from buying more than 320 acres in Indiana for crop farming or timber production, among other restrictions.
The problem with that is that it would violate the Commerce Clause of the U.S. Constitution. You see, the Commerce Clause gives Congress exclusive authority over trade activities among the states and with foreign countries and Indian tribes. You can find it in Article 1, Section 8, Clause 3. The provision gives Congress the power to regulate any activity that affects interstate Commerce. Or, to put it more specifically, it gives Congress the power to regulate anything that controls, is an instrument, or substantially affects Commerce. So whether it’s the electronics in your phone or your car, the Commerce Clause gives Congress the power to regulate it. Even Civil rights legislation can fall under this category. If you recall segregation at lunch counters in the 1950s and 60s, as the restaurants were in the chain of interstate Commerce, Congress had the authority to regulate them.
And as Congress has the authority to regulate interstate Commerce, states, for the most part, don’t. That falls under what is known as the Dormant Commerce Clause. Under that, states are prohibited from doing anything that discriminates or excessively burdens interstate Commerce. Unless it’s for health and safety reasons, the State is acting as a market participant (i.e., customer), or it goes to the 21st Amendment, the regulation of alcohol, the State can’t regulate interstate Commerce.
You see where this is going.
The State of Indiana doesn’t have the legal authority to ban the Chinese or anyone else from purchasing land. The rules on this are pretty clear.
So when you hear lawmakers, politicians or other officials say they want to ban “hostile” foreign entities from purchasing land in Indiana, they are talking out of their you-know-whats. I was at a recent town hall event of the gubernatorial candidates, and when the subject of China came up, there was so much pandering going on that I thought I was at the zoo in Beijing.
If lawmakers do pass this, they are buying a lawsuit. Now, the plaintiff would have to have what’s known as standing to sue. They have to be injured by the defendant, or there has to be the threat of injury. The defendant must have caused that injury, and the courts have to be able to give some kind of redress. I think anyone who lives in Indiana and owns land would be a very likely plaintiff, as would any “hostile” foreign entity that wants to purchase land here in the Hoosier state.
And the result will be a loss for the State in court. There’s your free Constitutional Law lecture for today.
Come to think about it, I just saved the State hundreds of thousands of dollars in litigation. Who do I send a bill to?
Abdul-Hakim Shabazz is the editor and publisher of Indy Politics. He is also an attorney licensed in Indiana and Illinois.
