Watching Sunday’s scenes from Catalonia made me wonder: What if a US state, like Texas, actually held an election on the question of independence?
It would seem that for the US the Civil War settled the question of whether our Union is permanent and indissoluble—but would that mean that the federal government could feel justified in preventing such an election at all?
I’m interested in the constitutional and legal issues raised, not so much in whether you think it would be a good idea to send Texas on its way.
The Civil War was a case in which states left within months of each other for a similar cause and tried to reconstitute a separate nation. If, say, one state were to leave, I’m sure there would be attempts to maintain possession of the state but I’m not entirely convinced it would have the same impact – provided the damage is limited to one state. Of course, if one state goes, then what’s keeping others from following?
But I’ve wondered what would happen if, say, the Bay Area and Central Coast California wanted to separate from the United States within the next few years. Maybe Congress and Trump don’t fight it?
That poses an interesting question. As it stands, the majority that might secede would probably leave a non-contiguous mess that would be difficult for the remaining states to deal with. The US Capital city would be in a somewhat untenable position, if it did not actually join the secessors.
But, if it was a majority, they would more probably gain control of the federal government itself and bring the minority to heel. Especially if the D of C was a member of the secessors. How do you run a country when those guys block you from your government buildings?
Call a Constitutional Convention and write up a new document that says what you want. Easy enough if the numbers are there. The document itself contains the procedures for nullifying it.
Meanwhile, secession is illegal (Texas v. White, upholding the ruling at Appomattox Court House in the landmark case of Grant v. Lee) and so could be ignored.
No, in the United States, you could not use force to intervene in such an election, which would be a protected First Amendment activity.
Obviously, you could use force to stop some result of that election, like the decision that a federal armory belonged to the State. But not the election itself.
I am not entirely certain that secession is illegal per se. What is illegal is unilateral secession. A state may leave the union if, upon petition, it gets permission from Congress and works out the particulars. Of course, once it leaves, there is no guarantee that the US will continue to recognize its legitimacy as an independent entity.
And they are unlikely to enjoy the terms that separation comes with (as Britain is discovering with Brexit - only even more of a clusterfuck). i.e. if they have a federal army base, they MIGHT manage to negotiate for the land back, but the U.S. Army is picking up its tanks and planes. If they have federal office buildings, the U.S. government is still likely to own the property and the buildings, but don’t expect those jobs to stay - the U.S.A. is more likely just to become an international landlord. What happens to their residents Medicare? Social Security? (I’d think the former citizens would get their SS checks - those come direct, but Medicare is administered by the states.) How about taxation - say California leaves - Google pays federal income tax, but they are paying it now to California. Obviously the U.S. is going to want a tax treaty in place so they still see some of that revenue - after all, Google is putting ads on my computer here in Minnesota (presumably still the U.S.A.)
It is possible for a state to legally secede, and a statewide vote would be one necessary (though not sufficient) step in that process, so there’d be no reason to prevent the vote. Opinions vary on just what legal secession would require, but if nothing else, it could certainly be done through an amendment to the US Constitution combined with an amendment to the state’s constitution. It might even be possible with an ordinary federal law combined with an amendment to the state’s constitution-- I don’t think there’s a consensus on that point.
I wonder if the Court, which rendered a 5-3 decision during the era of Radical Republicanism (well, the first one), might be inclined to reverse itself. I could envision separatist movements gaining traction in the US, and not just progressive ones either. Like if the Democrats regain control in 2020 or 2024 with a super majority, I could see Texas and Arizona trying to leave the country. I could see much of radical WASP America doing the same, creating a neo-confederacy.
Do you really see secession being geographic lines, then? The modern fault lines aren’t easy to identify on a map like slave/free; they’re everywhere, urban/rural, neighborhood/neighborhood, even inside households. How would it even work?
The police chief of Catalonia faces charges of sedition for failing to enforce Spain’s ban on the vote.
I am not sure how a ban on a public vote would work in the US. It would have to be an act of Congress, or an executive order based on Congressional discretion (like an AUMF). Would it be constitutional to enjoin a plebiscite?
Assuming there’s a minority of voters in the seceding state who want to contest the secession, wouldn’t such a federal law be deemed unconstitutional by judicial review? There’s no such power granted to the federal government in the U.S. Constitution.
Perhaps I’m missing something. Given the number of times I’ve lost my cell phone, it certainly wouldn’t be a first.
My understanding is that voting is generally conducted under state laws and the federal government has very limited grounds to intervene. So I would speculate that a state could hold a vote on secession. But if the majority voted to secede and then tried to carry out the secession, it would run into areas where the federal government has authority.
Taking it a step further, I believe secession isn’t completely illegal. It’s unilateral secession that’s illegal. (Unilateral expulsion of a state is also illegal. The United States can’t kick a state out.) But a state can leave the country if both parties - the state and the country - agree to it.
There is an argument to be made here. People born in the United States have the right to be citizens.
But I think the counterargument would be that you don’t have an unlimited right to be a citizen. If you’re an American citizen residing in Texas and Texas votes to secede and become a separate country, I think the argument would be that you are free to remain an American citizen but you’ll have to move out of Texas to do it.
I can be in a foreign country, and even live in one, and retain my American citizenship. Why shouldn’t loyal Americans in a seceded Texas be able to do the same?
My take is that anything that Congress can do, Congress can undo. Since it only takes a simple act of Congress to admit a new state, it would likewise only take a simple act of Congress to see an existing state out: In effect, they’d be repealing the original act that admitted the state. It wouldn’t be possible for the Feds to do it unilaterally, even with an amendment, because expelling a state would deny it equal representation in the Senate, which is the one thing that even an amendment can’t do. But denying a state equal representation in the Senate can be done with the state’s consent, which is where the amendment to the state constitution would come in.
Wouldn’t the act of ejecting the state cause it to cease being a state the instant the act took effect, meaning that at no point would a state have been denied representation? (Presuming they were allowed to participate in the votes about the expulsion right up until the moment they failed to block its passage.)
