Has SCOTUS or Congress ever entertained the idea of throwing a state out of the Union?

[UDS]

@Lord_Feldon

The latter would require either a constitutional amendment or a major change in federal case law, though. I guess such a seismic shift in the nature of statehood could lead to a change in the way the courts view the citizenship clause, but as it is I think it would be clearly unconstitutional to take away someone’s citizenship just for being in a state that seceded.

There’s a fundamental difference, though, between EU citizenship and US citizenship.

In US law, citizenship (both of the Union and of the state) is “top-down”; it’s conferred by the federal Constitution. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”. So Texan citizenship is not conferred by Texan law, but by the US Constitution.

Whereas in the EU, it’s bottom-up. Each member state has its own citizenship law, and it’s the law of a member state which confers citizenship of the state. EU law then confers Union citizenship on anyone who has citizenship of a member state.

So, if the UK leaves the EU, the UK ceases to be a member state, and EU law (as it now stands) will no longer operate to confer EU citizenship on UK citizens. I suppose one of the questions to be addressed in the exit negotations is whether this should be changed; should EU law allow those who currently have EU citizenship by virtue of their UK citizenship to retain it, or to elect to retain it? But, unless EU legislation to this effect is enacted, the current default position is that if the UK leaves the EU, UK citizens will cease to be EU citizens.

As for the US, IANA US L, but I think the position is less clear. If Texas leaves the US, could it be argued that Texans, resident in Texas, will no longer be “subject to the jurisdiction” of the United States, and therefore will no longer enjoy citizenship of the US (or indeed citizenship of Texas) through the operation of the US Constitution?

Citizenship of Texas is not a problem, since independent Texas will presumably enact its own citizenship law. But the laws of independent Texas can’t operate to confer US citizenship.

I suspect the answer is that at the moment there is no mechanism for Texas to leave the Union, so the Constitution doesn’t have to address, and in fact doesn’t clearly address, the question of what impact secession would have on the citizenship of Texans. Were the Constitution to be amended to allow secession, the amendment would have to address the consequences of secession for citizenship.

[Elendil_s_Heir]

@MikeS

We had an inconclusive thread on this subject a few years back: Could the U.S. eject a state from the Union?…

Ah, thanks. I’d posted several times in that thread and had since forgotten it.

[robby]

I’m not sure if this is directly addressed here or in the other linked thread, but if a State requested to leave the Union and the U.S. government consented to this, it would seem on the face of it that this should be allowable.

However, even if a State’s government was unanimous in its desire to leave, and even if a referendum was held in the State and the results were overwhelmingly in favor of secession, surely some of its citizens would disagree with this action, and they would be either deprived of their U.S. citizenship, or find themselves as expatriates in a foreign country, or be forced to leave their home and relocate within a certain period of time. This problem alone might well be enough to keep the U.S. government from ever consenting to the secession of a State.

From what I can tell, it’s not a settled issue.

What was settled by the outcome of the Civil War was that a State has no unilateral right to secede.

[Elendil_s_Heir]

The U.S. Supreme Court decision in Texas v. White, mentioned above, left open the door to the possibility that a state might secede by consent of both the state and the rest of the country: “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States” (emphasis added).

Texas v. White

[robby]

@robby

I’m not sure if this is directly addressed here or in the other linked thread, but if a State requested to leave the Union and the U.S. government consented to this, it would seem on the face of it that this should be allowable.

However, even if a State’s government was unanimous in its desire to leave, and even if a referendum was held in the State and the results were overwhelmingly in favor of secession, surely some of its citizens would disagree with this action, and they would be either deprived of their U.S. citizenship, or find themselves as expatriates in a foreign country, or be forced to leave their home and relocate within a certain period of time. This problem alone might well be enough to keep the U.S. government from ever consenting to the secession of a State.

From what I can tell, it’s not a settled issue.

What was settled by the outcome of the Civil War was that a State has no unilateral right to secede.

@Elendil_s_Heir

The U.S. Supreme Court decision in Texas v. White, mentioned above, left open the door to the possibility that a state might secede by consent of both the state and the rest of the country: “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States” (emphasis added).

Texas v. White - Wikipedia

Thanks. I’ve heard of this case before, so that’s probably where I got that idea from. It also resulted in an actual Supreme Court decision (as opposed to the de facto result of the outcome of the Civil War) that “Texas (and the rest of the Confederacy) never left the Union during the Civil War, because a state cannot unilaterally secede from the United States.”

So far as there being “no place for reconsideration or revocation, except through revolution or through consent of the States,” this still does not address the potential loss of U.S. citizenship for those residents of a seceding state who do not agree with or consent to such secession.

This would seem to be a similar concern for those in the UK who oppose leaving the EU.

[PatrickLondon]

@robby

this still does not address the potential loss of U.S. citizenship for those residents of a seceding state who do not agree with or consent to such secession.

This would seem to be a similar concern for those in the UK who oppose leaving the EU.

This is moving off-topic, but it’s not the same thing. Under a previous treaty, there is an “EU citizenship” which comes automatically with citizenship of a member state, but that is primarily an add-on rather than conferring the fundamentals of citizenship in a state.

The referendum result raises questions about citizens of other EU countries who have taken advantage of the free movement provisions to establish themselves in the UK (and the rather larger number of UK citizens who have moved elsewhere within the EU), which is one of the many topics the exit negotiations will have to deal with once they get under way.

Of course, if the UK does break up as a result of the outcome of the negotiations (by no means a given), then there would be a potential problem in respect of citizenship and the associated rights and obligations. But we dealt with this before, reasonably amicably, in respect of the Irish Free State in 1921 and again when it became the Republic in 1949, and no doubt would again in much the same way.

[Leo_Bloom]

@robby

…
However, even if a State’s government was unanimous in its desire to leave, and even if a referendum was held in the State and the results were overwhelmingly in favor of secession, surely some of its citizens would disagree with this action, and they would be either deprived of their U.S. citizenship, or find themselves as expatriates in a foreign country, or be forced to leave their home and relocate within a certain period of time. This problem alone might well be enough to keep the U.S. government from ever consenting to the secession of a State.

From what I can tell, it’s not a settled issue…

The new Nation of NewTexas, say, might make citizens of all its residents, even those who didn’t agree with it, but they wouldn’t be deprived of their US citizenship as far as it is concerned.

Beys AFROYIM, Petitioner, v. Dean RUSK, Secretary of State.

But NewTexas can very well declare dual-citizenship illegal. Don’t know what happens then.

NewTexans who were once-US-citizens-only, and want to get along under that new law, would then follow some variation of the road the citizens of Judea walked on.

[dreamregent]

@MikeS

We had an inconclusive thread on this subject a few years back: Could the U.S. eject a state from the Union?

It’s interesting there could have been an “inconclusive” thread about this. As noted by other posters, Texas v. White seems to foreclose the possibility of “throwing a state out of the Union” as “throwing” seems to imply it would be done against the state’s will.

@Hari_Seldon

Then there is West Virginia. Without the agreement of Virginia (which according to the US constitution should have greed, but was in rebellion at the time) some 40 counties of western Virginia split off and declared themselves a state. They were recognized as such by the federal government and have continued as a state ever since. You can debate the legalities all you like, but the facts are incontrivertible.

SCOTUS has effectively closed the debate on this question as well…Virginia v. West Virginia (1871).

@John_Mace

What does that have to do with being thrown out of the union? If anything, WV was thrown into the union.

I was raised in West Virginia. I think most native West Virginians don’t believe we were thrown anywhere and consider it a point of pride that we consciously seceded from Virginia to rejoin the Union.