The Federal Enclave Clause

The Congress shall have Power To . . . exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. . . .

—Lee A. Casey

Introduction

The Federal District Clause grants Congress “exclusive” legislative authority over the permanent seat of government, which in 1800 was established as the District of Columbia. (See Essay No. 64.) The Federal Enclave Clause grants Congress “like Authority” over certain federal installations, both military and civilian. Today, these federal “enclaves” include such varying areas and establishments as the National Institutes of Health in Bethesda, Maryland, and Kennedy Space Center in Cape Canaveral, Florida. This power also extends to “other needful buildings.” The U.S. Supreme Court has defined this category to include locks, dams, federal courts, customs houses, post offices, and “whatever [other] structures are found to be necessary in the performance of the functions of the Federal Government.”¹

Questions remain about what substantive law applies in any given federal enclave and whether jurisdiction lies with state or federal governments. The Supreme Court has explained that “the grant of ‘exclusive’ legislative power to Congress . . . bars state regulation without specific congressional action,”² but in practice, the situation is far more complex.

The Constitutional Convention

Like the Federal District Clause, the Federal Enclave Clause’s purpose was to accommodate and guarantee the independence of both federal and state sovereignties. During the Constitutional Convention, an early version of the Federal Enclave Clause gave Congress the power “to exercise like authority [i.e., exclusive legislative authority as in the Federal District Clause] over all places purchased for the erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful buildings.”³ Elbridge Gerry of Massachusetts objected to this language. He warned that it gave Congress a sweeping authority over any property purchased from the states, that this power “might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Gen’l Government.”⁴

Gerry’s concern was assuaged by the timely addition of language requiring state consent to such establishments.⁵ In the final version, the Federal Enclave Clause would grant Congress authority only where the property was “purchased by the Consent of the Legislature of the State.”

The Ratification Debates

The addition of a state consent requirement did not satisfy all critics. At the Virginia convention, Patrick Henry warned that the Federal Enclave Clause would effectively eliminate state power. He warned that the federal “garrisons, magazines, arsenals, and forts, which will be situated in the strongest places within the states . . . will reduce the power of the latter to nothing.” Henry also warned that the “ten miles square” district with “all the fine ornaments of human life,” would only “add[] to [the federal government’s] powers.”⁶ John Tyler Sr., the father of the future President John Tyler, worried that criminals “might take refuge in the sanctuary of the ten miles square, and [in] the strongholds . . . [where] the states had no power to punish them.”⁷ An exasperated James Madison responded that these concerns were exaggerated and suggested that “the gentleman [should] read the clauses” again as “he might see that nothing could be done without the consent of the states.”⁸

Madison offered a somewhat fuller justification in Federalist No. 43. He acknowledged that “[t]he public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular state.” It would not “be proper for the places on which the security of the entire union may depend, to be in any degree dependent on a particular [state].” Madison sought to address any lingering concerns: “All objections and scruples are here also obviated by requiring the concurrence of the states concerned, in every such establishment.”

Other state conventions expressed concern over federal enclaves. The New York ratifying convention proposed an amendment to the Constitution: the Federal Enclave Clause could not be “construed to authorize the Congress to make any law to prevent the laws of the states in which they may lie, from extending to such places in all civil and criminal matters, except as to such persons as shall be in the service of the United States.”⁹ In other words, state law would apply fully in federal enclaves to everyone except federal officers. This amendment was not adopted.

Cession and Regulation of Federal Enclaves

A federal enclave can be created at the time a state joins the Union. Congress can reserve exclusive legislative authority over a particular area as a condition of admission. Or a federal enclave can be created—like the District of Columbia—by a state legislature’s cession of both territory and exclusive legislative authority to Congress and Congress’s acceptance of that authority.¹⁰ A state may separately consent to a transfer of its legislative jurisdiction over land the federal government has purchased or taken through eminent domain proceedings for its own use, thus “complet[ing] the ‘exclusive’ jurisdiction of the Federal Government over such an enclave. . . .”¹¹

States retain some authority to regulate federal enclaves. Specifically, states may reserve various authorities at the time they cede the area to the federal government. These authorities can even include concurrent legislative power with the federal government as long as Congress consents.¹² Most states have reserved at least the right in federal enclaves to deliver civil and criminal legal documents: that is, serving process. Apart from such reservations, within the enclave, state law as it existed at the time of a cession continues in force. This state law functions as a species of federal law unless and until Congress enacts changes.¹³

Paul v. United States (1963) considered the status of a state regulation over a federal enclave that Congress did not expressly reject. The Supreme Court held that such state regulatory programs will continue to apply in an enclave as long as the “basic state law authorizing” the program was in effect at the time of cession, even if there are subsequent updates.¹⁴ As a general matter, a state’s powers over a federal enclave depend on the terms of the original cession, but federal enclave residents are entitled to vote as residents of the surrounding state no matter what the terms of the original cession.¹⁵

Congress began to regulate federal enclaves from the start with the Federal Crimes Act of 1790. Beginning in 1825, a series of Assimilative Crimes Acts affirmatively adopted existing state criminal laws within federal enclaves as federal law, and after 1948, state criminal law enacted after the date of cession would still become federal law governing that enclave. United States v. Sharpnack (1958) upheld this adoption of future state laws against constitutional attack on improper delegation of congressional authority grounds.¹⁶ Under the “Federal Enclave Doctrine,” individuals working in federal enclaves generally cannot bring certain tort cases or state statutory employment and employment discrimination causes of action.¹⁷

Jurisdiction over Federal Enclaves

As a general matter, state courts do not have jurisdiction over federal enclaves. Rather, federal enclaves are subject to the “special maritime and territorial jurisdiction of the United States.”¹⁸ That is, these enclaves are treated in the same fashion as federal territories such as Puerto Rico or Guam are treated. As a result, criminal offenses committed within an enclave are subject to federal prosecution in federal court. However, these prosecutions have a unique wrinkle, as the substantive offense may well be grounded in the surrounding state’s law pursuant to the Assimilative Crimes Act.¹⁹ Federal prosecutors can choose to bring charges under federal or state law based on whether “federal law indicates [a congressional] intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue.”²⁰

1. James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). ↩︎
2. Paul v. United States, 371 U.S. 245, 263 (1963). ↩︎
3. 2 Farrand’s 505. ↩︎
4. Id. at 510. ↩︎
5. Id. ↩︎
6. 3 Elliot’s 83. ↩︎
7. Id. at 419. ↩︎
8. Id. ↩︎
9. 2 Elliot’s 410. ↩︎
10. Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1236 n.1 (10th Cir. 2012) (citing Kelly v. Lockheed Martin Servs. Grp., 25 F. Supp. 2d 1, 3 (D. Puerto Rico 1998)). ↩︎
11. Paul, 371 U.S. at 264. ↩︎
12. Lake v. Ohana Mil. Communities, LLC, 14 F.4th 993, 1002 (9th Cir. 2021). ↩︎
13. Id. ↩︎
14. 371 U.S. at 269. ↩︎
15. Evans v. Cornman, 398 U.S. 419 (1970). ↩︎
16. 355 U.S. 286 (1958). ↩︎
17. Kennicot v. Sandia Corp., 314 F. Supp. 3d 1142 (D. N.M. 2018); Emily S. Miller, The Strongest Defense You’ve Never Heard Of: The Constitution’s Federal Enclave Doctrine and its Effect on Litigants, States, and Congress, 29 Hofstra Labor & Emp. L.J. 73 (Fall 2011). ↩︎
18. 18 U.S.C. § 2243. ↩︎
19. 18 U.S.C. § 13(a). ↩︎
20. Lewis v. United States, 523 U.S. 155, 166 (1998). ↩︎