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Athough some cases hold that State whistleblower statutes do not apply to federal enclaves, it is doubtful that the Supreme Court would uphold these cases today. In Howard v. Commissioners, 344 U.S. 624, 626 (1953), the Supreme Court abolished the "extraterritoriality" doctrine, and held that "the fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdtiction asserted by the federal government." The Court famously concluded, "It is friction, not fiction, to which we must give heed." In 1970 the Supreme Court in Evans v. Cornman, 398 U.S. 419, 422 (1970), relied on the "friction not fiction" doctrine to hold that the residents of federal enclaves had the right to vote in State elections. The Court reaffirmed that the residents of federal enclaves should be regarded as residents of the State, and noted that many State laws apply to federal enclaves. Unfortunately, three years later the Supreme Court in dictum in United States v. State Tax Commission of Mississippi, 412 U.S. 363, 375 (1973) favorably quoted the district court's erroneous assertion that federal enclaves are "foreign land" and "federal islands which no longer constitute any part of Mississippi nor function under its control." Cases that have recognized the conflict have held that non-conflicting State laws do apply to federal enclaves. Examples are State laws governing marriange and divorce, probate, motor vehicles, welfare benefits, mental health services, juvenile delinquency, child protection laws, and domestic violence restraining orders. Other cases, however, have relied on Mississippi Tax or pre-Howard cases to hold that State laws do not apply on federal enclaves. Examples are most State criminal laws, liquor laws, personal property taxes, some utility regulations, laws prohibiting racial discrimination and age discrimination, wrongful termination laws, whistleblower laws,wage and hour laws, and right-to-work laws. Given the weakness of the dictum in the Mississippi Tax case, I do not thinkd these court decisions would be upheld by the Supreme Court today.
June 28, 2012 at 10:11 a.m.
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