View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Brigham Young University Law School BYU Law Review Volume 2012 | Issue 3 Article 10 9-1-2012 Utah's Enabling Act and Congress's Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement Spencer Driscoll Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Constitutional Law Commons, and the Property Law and Real Estate Commons Recommended Citation Spencer Driscoll, Utah's Enabling Act and Congress's Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement, 2012 BYU L. Rev. 999 (2012). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2012/iss3/10 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 10-DRISCOLL.FIN (DO NOT DELETE) 2/8/2013 2:42 PM Utah’s Enabling Act and Congress’s Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement I. INTRODUCTION: UTAH’S CLAIM AND THE ORIGINS OF THE CONSTITUTION’S ENCLAVE CLAUSE On June 20, 1783, a disgruntled group of unpaid soldiers arrived at the statehouse in Philadelphia where the Continental Congress was convened.1 The following day, the soldiers surrounded the statehouse, demanding payment and attempting to intimidate the Congress by their mere presence; some soldiers at times even “point[ed] their muskets to the windows of the hall of Congress.”2 After drinking at neighboring taverns, the soldiers formed a mock obstruction as the Congress adjourned, but ultimately let the members of Congress pass through.3 Mixed reports circulated about the group’s intentions—at one point the soldiers were reportedly “penitent,” while at another they were “meditating more violent measures.”4 In response, Congress requested the presence of the state militia. As they waited for the state to respond, members in the body doubted whether the militia could force the group to disperse, as the soldiers’ obstruction may not have been considered “sufficient provocation.”5 Two days later, Congress realized the state was not going to act, so they moved their deliberations to Trenton.6 Fueled by state inaction at Philadelphia, Congress later authorized the construction of a more 1. JAMES MADISON, JOURNAL OF THE CONSTITUTIONAL CONVENTION, reprinted in 5 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 93 (Jonathan Elliot ed., 1845) [hereinafter ELLIOT’S DEBATES]. 2. Id. For a more complete description of the soldiers’ actions and the early history of the Enclave Clause, see THE INTERDEPARTMENTAL COMM. FOR THE STUDY OF JURISDICTION OVER FED. AREAS WITHIN THE STATES, REPORT PART II: A TEXT OF THE LAW OF LEGISLATIVE JURISDICTION 15–28 (1957), available at http://constitution.org/juris/fjur /2fj1-2.txt [hereinafter JURISDICTION REPORT]. 3. ELLIOT’S DEBATES, supra note 1, at 93. 4. Id. 5. Id. 6. See JURISDICTION REPORT, supra note 2, at 17; see also ELLIOT’S DEBATES, supra note 1, at 94. 999 10-DRISCOLL.FIN (DO NOT DELETE) 2/8/2013 2:42 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2012 permanent home for itself along the Delaware River. Buildings were to be erected on land over which the United States would have “the right of soil, and an exclusive or such other jurisdiction as Congress may direct.”7 Although the immediate push for a piece of separate land would subside,8 the Framers ultimately incorporated the need for a separate location into the Constitution through a somewhat obscure provision, known as the Enclave Clause, which gives Congress power [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and 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.9 The Enclave Clause serves two main functions: first, it gives Congress exclusive authority over the seat of the federal government (now Washington, D.C.); second, it gives Congress authority to purchase state land for important government installations. However, due in part to state concern over federal encroachment, it also requires Congress to obtain consent if it desires exclusive authority over any of the land it purchases.10 As will be discussed at length in this Comment, the reach of the Enclave Clause and state jurisdiction over federal enclaves may actually be quite limited, given Congress’s expansive authority under the Property Clause and the Supremacy Clause.11 Furthermore, the Supreme Court has narrowly interpreted the reach of the Enclave Clause in a number of its decisions.12 Although the reach of the Enclave Clause is quite narrow, the state of Utah has relied on the clause in its battle against the federal government 7. NEW JERSEY RESOLUTION, reprinted in WILLIAM TINDALL, ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA 39 (1909). 8. JURISDICTION REPORT, supra note 2, at 17 (“In view of the absence of a repetition of the experience which gave rise to the resolution, it may be that the feelings of urgency for the acquisition of exclusive jurisdiction diminished.”). 9. U.S. CONST. art. I, § 8, cl. 17 (the “Enclave Clause”). 10. See infra Part III.A. 11. See infra Part III.D. 12. See, e.g., Kleppe v. New Mexico, 426 U.S. 529 (1976); Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885). The impact of these cases is described in greater detail in Parts III.C and III.E. 1000 10-DRISCOLL.FIN (DO NOT DELETE) 2/8/2013 2:42 PM 999 Utah’s Enabling Act to regain control over the state’s public lands. Unlike the state of Pennsylvania, which could not protect Congress on state land during its deliberations in Philadelphia, Utah is actively attempting to expel the government from the state’s public lands. For example, on March 23, 2012, Utah Governor Gary Herbert signed the Transfer of Public Lands Act—a bill that denounces federal control over the state’s public lands.13 It threatens a lawsuit if the federal government fails to return title to the vast majority of its landholdings to the state by 2015.14 In 2010, Utah passed another bill claiming eminent domain authority over these lands because the federal government had not properly acquired the lands as required by the Enclave Clause.15 The strength of these two pieces of the state’s argument—its reliance on the Enclave Clause and attendant claim to eminent domain—are the main focuses of this Comment. In tying its argument to the Enclave Clause, the state relies primarily on the Utah Enabling Act (UEA), which President Grover Cleveland signed into law on July 16, 1894.16 In addition to bringing Utah into the Union, the Act effectively transferred title of state land to the federal government. However, it also provided for the sale and transfer of those lands back to the state, as follows: [F]ive per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to the said State.17 Utah legislators have relied on this provision of the UEA in contending that the federal government has not fulfilled its obligation to sell off its public land holdings within the state, which currently amount to nearly sixty percent of Utah’s land.18 Because the lands have not otherwise been purchased under the Enclave Clause, the state of Utah contends that 13. UTAH CODE ANN. §§ 63L-6-101 to -104 (West 2012). A more complete summary of the bill and its legislative history is available at http://le.utah.gov/~2012/bills/static/HB0148 .html. 14. Id. 15. UTAH CODE ANN. § 78B-6-503.5 (West 2010). This bill, sponsored by Utah Representative Herrod, is discussed in greater detail in Part II.C. 16. Utah Enabling Act, 28 Stat. 107 §§ 3, 9 (1894). 17. Id. § 5. 18. The Open West, Owned by the Federal Government, N.Y. TIMES, Mar. 23, 2012, http://www.nytimes.com/interactive/2012/03/23/us/western-land-owned-by-the-federal- government.html. 1001 10-DRISCOLL.FIN (DO NOT DELETE) 2/8/2013 2:42 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2012 its eminent domain authority extends over them.19 The state’s own legislative attorneys recognized the difficulty inherent in the state’s challenge,20 but the governor has deemed this uphill battle “a fight worth having.”21 This Comment analyzes Utah’s Enclave Clause argument and concludes that although success in court is unlikely, any potential of such success hinges on the Supreme Court’s interpretation of the UEA. Most centrally, Utah must successfully argue that the federal government’s ownership of the land is invalid. Part II discusses the history of public lands movements, including Utah’s, to demonstrate the difficult battle that the state will face. Despite this bleak history, and even if the Court does not permit Utah to exercise its eminent domain authority, the state will still certainly be able to exert pressure on the Obama Administration to scale back its more restrictive land use policies.