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 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 die 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 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 die 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 tide to die vast majority of its landholdings to the state by 2015. 14 In 2010, Utah passed anodier bill claiming eminent domain audiority 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. …