November 20, 2012

Private: Calls for Secession are Bad Law, and Bad Policy

by Joseph Jerome

Within days of President Obama’s re-election, dozens of states petitioned the White House for permission to secede from the union, and ever feisty Texans have led the way. One local politician made headlines for calling for an “amicable divorce” between the United States and the Lone Star State, and a petition for Texas’ secession has received over 100,000 signatures. The White House has said it will offer a response to the chorus of calls to secede, but the administration’s answer should be brief: secession is neither constitutional nor would it be good policy if it were.

In a thoughtful post for the National Constitution Center, Lyle Denniston explains that talk of secession “is a pipe dream, constitutionally speaking.” “If the Civil War did not settle it on the battlefield,” he writes, “the U.S. Supreme Court put it completely to rest constitutionally” in a case involving Texas, appropriately enough. Decided by the Supreme Court in 1869, White v. Texas addressed the sale of U.S. treasury bonds by the state of Texas in order to fund its rebellion during the Civil War. Finding the state’s ordinances supporting secession to be “absolutely null,” the Court held that secession could be accomplished only through “revolution or through consent of the States”:

The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final.

Texas politicians, including Governor Rick Perry, regularly invoke the specter of secession when talking about Texas’ unique history as a one-time independent nation. However, as Slate’s Jeff Turrentine explains, Texas’ “so-called ‘right’ to secede is no more than a politically emboldening myth, the boastful residue of the decade it spent as a sovereign nation.” While the former republic may have other legal ways of causing havoc with the federal government, even Texas concedes it has no legal authority to “unilaterally withdraw” from the United States.  

History and law suggests that secession would only be possible with the consent of the country as a whole. The dissolution of the United States would require, at minimum, congressional approval, and the first difficulty that presents is "a matter of arithmetic," according to constitutional law scholar Michael Dorf. The Constitution is predictably silent on the matter of the legislative process of secession, and there is no mechanism in place for determining how Congress could proceed on the matter. Would only the non-seceding members of Congress control the vote?  Would Congress need to approve any secession plan by a majority or super-majority? More likely, a pathway to secession would require the painstaking process of amending the Constitution, but even then, secession would present a number of practical challenges.

Secession can be portrayed as a simple, logical solution to frustration with the federal government, but untangling the complex relationship between a state and the federal government would not be easy. For a conservative state like Texas, the end result would be more government, not less. In a thought experiment, NPR considered what an independent Texas would look like. Even with the world's fifteenth largest economy, sovereign Texas would be bled dry as it established new government departments to handle foreign affairs, aviation, and nuclear regulation. It is true that Texas residents pay more in federal taxes than they receive in benefits, but the state still received almost $44 billion in federal aid in 2010. Further, national defense spending helped to buoy the Texas economy during the Great Recession and the economic impact of military payroll in the state is more than $77 billion. Large percentages of state aid to the poor across the country is currently subsidized by the federal government, and independent, individual states would be forced to addresshow they would handle Medicare and Social Security benefits and "all the expenses Washington used to take care of -- things like maintaining interstate highways, inspecting meat and checking passports."

It is likely no one rushing to petition the White House to secede has seriously considered these sorts of questions. Indeed, talk of secession likely has everything to do with “slumping stock market[s] and accompanying pessimism” than any real desire to form a new nation.  Even as America has become increasingly polarized and partisan, the political environment remains far removed from the one that precipitated the Civil War. Few Americans today feel enough affinity for their states to have any strong commitment to establishing them as independent nations, argues conservative legal scholar Ilya Somin. Expressing support for secession on a petition and rising up in arms to demand it are two very different things, and even in Texas, support for secession is no more popular than in Rhode Island: a 2009 Rasmussen Reports survey concluded that 75 percent of Texans would oppose seceding. 

Despite the attention these secession petitions have received, only a fifth of Americans consistently support leaving the union. This number has remained constant no matter the president or party in power, and it should come as no surprise that the majority of Americans continue to see the innumerable legal and practical benefits of a strong united country.