Trapped in the Amber: State Common Law, Employee Rights and Federal Enclaves

Chad DeVeaux, Western State University - College of Law - Argosy

Abstract

The Constitution empowers Congress, with state consent, to establish federal enclaves for legitimate purposes including military bases and national parks. To date, Congress has established 5,000 federal enclaves covering nearly thirty percent of land in the United States. More than a million Americans live and work in such places. When an enclave is created, all state authority over it is terminated and the federal government assumes exclusive jurisdiction. State laws existing at the time of cession continue in effect until abrogated by Congress. But post-acquisition changes in state law, including common law rules, are not part of the body of laws absent congressional action. Congress has failed to implement modern law in the areas of employment law, housing law, consumer protection, contracts, agency and non-injury torts. In these arenas, outmoded nineteenth and early twentieth century state laws prevail in most enclaves. My Article explores the perplexing state of the private law governing enclaves, placing a particular emphasis on labor law. I offer a two-pronged solution. First, I argue that because enclaves are federal instrumentalities, enclave private law falls within the ambit of federal common law. Second, I propose that Congress enact a statute affording the rights and remedies provided by contemporary state labor statutes to non-governmental workers employed within federal enclaves.