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Understanding the "Federal Enclave Doctrine"

It is estimated that there are approximately 5,000 federal enclaves within the United States. All fifty States have federal enclaves within their borders. Yet most people have never heard of federal enclaves, much less know what they are or where they are located. Simply put, a federal enclave is land given or sold to the federal government by a State, over which the federal government exercises control. A federal enclave can be as small as a fraction of an acre, or as large as tens of thousands of acres. 

Under the US Constitution (Art. 1, §8, cl. 17), the federal government has exclusive legislative power over all property and persons within a federal enclave. Consequently, State and local  laws generally do not apply within a federal enclave, despite the fact persons and property are located within the borders of a recognized State. The exemption from State laws can have a profound impact upon the rights and obligations of the people living or working within a federal enclave. For example, State laws governing civil actions (torts, contracts, consumer protection) and remedies (damages, injunctions), as well as criminal laws (assault, battery, theft) and penalties are replaced by applicable federal law.

Not all property owned by the US government qualifies as a federal enclave. As of 2020, the US government owned 640-Million acres of the 2.27-Billion acres of land comprising the United States. Although the federal government owns approximately 28% of property within the US, only 5% of such property qualifies as a federal enclave. Perhaps the best-known federal enclave is Washington DC, a 10 square mile patch carved out of Virginia and Maryland. However, federal enclaves include many other federal properties, including certain military bases, federal courthouses, federal buildings, national forests and parks, post offices, the Pentagon, Indian reservations, federal prisons, federal research facilities, NASA as well as “other needful buildings”. The US Supreme Court has interpreted “other needful buildings” to include locks, dams, and “whatever other structures are found to be necessary in the performance of the functions of the Federal Government.”

The federal government has very broad discretion as to whether land obtained from a State becomes a federal enclave. Moreover, there are several requirements that property owned by the US government must meet in order to qualify as a federal enclave. First, the federal government must purchase or be given the property, excluding through eminent domain, for the broader powers of Congress granted by Article 1 of the US Constitution. Second, the State must expressly grant legislative power over the property to the federal government, although States may reserve certain legislative powers (e.g. property taxes),  not inconsistent with the property transfer. Third, for transfers taking place after 1940, the federal government must issue and record formal acceptance of legislative control over the property. Finally, the US Supreme Court, has held that unless the federal government adopts laws applicable to a federal enclave, the State laws in existence at the time of the purchase or donation, will still apply.

The determination as to whether federal property qualifies as a federal enclave can present very tricky issues. In many instances, residents and workers within a federal enclave are unaware of their status. Nonetheless, identifying whether operations are taking pace in a federal enclave has a huge impact both upon individual rights both substantively and procedurally. On the substantive side, federal laws often replace liberal Sate laws. On the procedural side, such rights under federal law will often be decided in Federal courts, rather than State courts. Do you know of any federal enclaves in your State?

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