Article I, Section 8, Clause 17 — Enclave Clause

ArtI.S8.C17.1.1 Historical Background on Seat of Government Clause

The Convention was moved to provide for the creation of a site in which to locate the Capital of the Nation, completely removed from the control of any state, because of the humiliation suffered by the Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and weary, marched on the Congress sitting in Philadelphia, physically threatened and verbally abused the members, and caused the Congress to flee the City when neither municipal nor state authorities would take action to protect the members.¹ Thus, Madison noted that “[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.”²

The actual site was selected by compromise, Northerners accepting the Southern-favored site on the Potomac in return for Southern support for a Northern aspiration, assumption of Revolutionary War debts by the National Government.³ Maryland and Virginia both authorized the cession of territory⁴ and Congress accepted.⁵ Congress divided the District into two counties, Washington and Alexandria, and provided that the local laws of the two states should continue in effect.⁶ It also established a circuit court and provided for the appointment of judicial and law enforcement officials.⁷

ArtI.S8.C17.1.2 Seat of Government Doctrine

There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to the question of the governance of the citizens of the District.¹ James Madison in the Federalist Papers did assume that the inhabitants “will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for all local purposes, derived from their own suffrages, will of course be allowed them. . . .”² Although there was some dispute about the constitutional propriety of permitting local residents a measure of “home rule,” to use the recent term,³ almost from the first there were local elections provided for. In 1802, the District was divided into five divisions, in some of which the governing officials were elected; an elected mayor was provided in 1820. District residents elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 1874⁴ and replaced with a presidentially appointed Commission in 1878.⁵ The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council.⁶ In recent years, Congress provided for a limited form of self-government in the District, with the major offices filled by election.⁷ District residents vote for President and Vice President⁸ and elect a nonvoting delegate to Congress.⁹ An effort by constitutional amendment to confer voting representation in the House and Senate failed of ratification.¹⁰

Constitutionally, it appears that Congress is neither required to provide for a locally elected government¹¹ nor precluded from delegating its powers over the District to an elective local government.¹² The Court has indicated that the “exclusive” jurisdiction granted was meant to exclude any question of state power over the area and was not intended to require Congress to exercise all powers itself.¹³

Chief Justice John Marshall for the Court held in Hepburn v. Ellzey¹⁴ that the District of Columbia was not a state within the meaning of the Diversity Jurisdiction Clause of Article III. This view, adhered to for nearly a century and a half,¹⁵ was overturned in 1949, the Court upholding the constitutionality of a 1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and the citizens of a state.¹⁶ The decision was by a 5-4 division, but the five in the majority disagreed among themselves on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III.¹⁷ Two others thought that Hepburn v. Ellzey had been erroneously decided and would have overruled it.¹⁸ But six Justices rejected the former rationale and seven Justices rejected the latter one; since five Justices agreed, however, that the statute was constitutional, it was sustained.

It is not disputed that the District is a part of the United States and that its residents are entitled to all the guarantees of the United States Constitution including the privilege of trial by jury¹⁹ and of presentment by a grand jury.²⁰ Legislation restrictive of liberty and property in the District must find justification in facts adequate to support like legislation by a state in the exercise of its police power.²¹

Congress possesses over the District of Columbia the blended powers of a local and national legislature.²² This fact means that in some respects ordinary constitutional restrictions do not operate; thus, for example, in creating local courts of local jurisdiction in the District, Congress acts pursuant to its legislative powers under Clause 17 and need not create courts that comply with Article III court requirements.²³ And when legislating for the District Congress remains the legislature of the Union, so that it may give its enactments nationwide operation to the extent necessary to make them locally effective.²⁴

ArtI.S8.C17.2.1 Overview of Places Purchased Clause

This Clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government.¹ It includes post offices,² a hospital and a hotel located in a national park,³ and locks and dams for the improvement of navigation.⁴ But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.⁵ Nevertheless, the Supreme Court has held that a state may convey, and the Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a state, for purposes other than those enumerated in Clause 17.⁶

After exclusive jurisdiction over lands within a state has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory.⁷ Private property located thereon is not subject to taxation by the state,⁸ nor can state statutes enacted subsequent to the transfer have any operation therein.⁹ But the local laws in force at the date of cession that are protective of private rights continue in force until abrogated by Congress.¹⁰ Moreover, as long as there is no interference with the exclusive jurisdiction of the United States, an area subject to such jurisdiction may be annexed by a municipality.¹¹

ArtI.S8.C17.2.2 Federal Jurisdiction Over Places Purchased

A state may qualify its cession of territory by a condition that jurisdiction shall be retained by the United States only so long as the place is used for specified purposes.¹ Such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way.² In 1892, the Court upheld the jurisdiction of the United States to try a person charged with murder on a military reservation, over the objection that the state had ceded jurisdiction only over such portions of the area as were used for military purposes and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the Court to inquire into the actual uses to which any portion of the area was temporarily put.³ A few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States.⁴

The question arose whether the United States retains jurisdiction over a place that was ceded to it unconditionally, after it has abandoned the use of the property for governmental purposes and entered into a contract for sale to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that “the Government’s unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power.”⁵ In separate concurring opinions, Chief Justice Harlan Fiske Stone and Justice Felix Frankfurter reserved judgment on the question of territorial jurisdiction.⁶

ArtI.S8.C17.2.3 State Jurisdiction Over Places Purchased

For more than a century the Supreme Court kept alive, by repeated dicta,¹ the doubt expressed by Justice Joseph Story “whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State legislature, where such consent is so qualified that it will not justify the ‘exclusive legislation’ of Congress there. It may well be doubted if such consent be not utterly void.”² But when the issue was squarely presented in 1937, the Court ruled that, when the United States purchases property within a state with the consent of the latter, it is valid for the state to convey, and for the United States to accept, “concurrent jurisdiction” over such land, the state reserving to itself the right to execute process “and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.”³ The holding logically renders the second half of Clause 17 superfluous. In a companion case, the Court ruled further that even if a general state statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it.⁴