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Strange Brew: Mike Lee and the "Enclave Clause"

August 2, 2010

This is the tenth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

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by Doug Kendall and Matthew Cagle, Constitutional Accountability Center

One of the most bizarre claims made by a Tea Party-endorsed candidate has come from Mike Lee, who’s running for the U.S. Senate from Utah.  According to Mr. Lee, the Constitution’s “enclave clause” gives Utah the power of eminent domain over federal lands within the state’s borders. Recently, the theory was incorporated into Utah law.

To which the only plausible response as a constitutional matter is: what is Mike Lee talking about?  If you’ve never heard of the “enclave clause, ”don’t feel bad, neither had we, and we make a living studying the Constitution.  Turns out, the clause is located in Article I, Section 8 of the Constitution, which is where the document lists the powers of the federal government.  The 17th enumerated power in that list, appearing just before the Necessary and Proper Clause, is also known as the “enclave clause.” Here’s Clause 17 in its entirety:

To 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;

Let’s start by pointing out that Clause 17 – which Lee reads to provide remarkable authority to Utah – is actually a broad grant of power to the federal government, authorizing it “to exercise Legislation in all Cases whatsoever.”  The second half of the Clause – Lee’s so-called “enclave clause” – uses the word “consent” only to define the lands to which these broad powers apply, meaning the Clause applies to lands obtained with the consent of the states for use as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 530, 539 (1885). On such transferred land, the U.S. has the power of “exclusive legislation,” just as it does in Washington, D.C.  While a state might reserve the right to enforce some criminal or civil laws on the transferred property, the Clause does not provide an affirmative grant of state power. Id. at 532-34.

Just as important, because the “enclave clause” only concerns state transfers of land to the U.S. government for a limited number of purposes, it does not apply to the vast majority of federal lands in Utah.  After all, Utah never had the chance to consent to federal control over these lands because they were property of the U.S. government before Utah’s statehood.  Utah “disclaim[ed] all right and title” to them in order to join the union. Any public lands used for “forests, parks, ranges, wild life sanctuaries, flood control, and other purposes [ . . . ] are not covered by Clause 17.” Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 529-30 (1938). The Supreme Court emphasized these points in the 1885 case of Ft. Leavenworth R. Co. v. Lowe:

and, since the adoption of the Constitution, [the United States has] by cession from foreign countries, come into the ownership of a territory [ . . . ] between the Mississippi River and the Pacific Ocean, and out of these territories several States have been formed and admitted into the Union. The proprietorship of the United States in large tracts of land within these States has remained after their admission. There has been, therefore, no necessity for them to purchase or to condemn lands within those States, for forts, arsenals, and other public buildings, unless they had disposed of what they afterwards needed.

114 U.S. at 532.

The vast majority of federal lands in Utah have always been owned by the federal government and, accordingly, are governed by another part of the Constitution, Article IV’s Property Clause, which gives the federal government broad “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  With respect to federal action under the Property Clause, the Supreme Court has been unmistakably clear.  When Congress passes legislation respecting federal lands, “the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.” Kleppe v. New Mexico, 426 U.S. 529, 543 (1976); see U.S. Const., Art. VI, cl. 2. When the federal government has title to lands within a state, the state may not “affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.” James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937) (emphasis added) (quoting Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930)).

And, in fact, when the “enclave clause” theory was recently incorporated into Utah law, the state’s legislative general counsel explained the defects in the theory, advising that  “the state has no standing as sovereign to exercise eminent domain or assert any other state law that is contrary to federal law on land or property that the federal government holds under the Property Clause.”

Mr. Lee has serious legal credentials. He was a law clerk to then-Judge Samuel Alito on the U.S. Court of Appeals for the Third Circuit and later to Justice Alito on the U.S. Supreme Court. He has litigated for nationally prominent law firms.  He is the son of Rex Lee, a well-respected former Solicitor General.  Mike Lee knows better than to make a frivolous constitutional argument to support a politically popular cause.  But that’s precisely what he is doing when he argues that the “enclave clause” gives Utah the right to use eminent domain to take federal lands in Utah. It is a shameful performance.