Patricia A. O'Malley
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​“Treason against the United States, shall consist only in levying War against them,

or in adhering to their Enemies, giving them Aid and Comfort.

No Person shall be convicted of Treason unless on the Testimony of two Witnesses

to the same overt Act, or on Confession in open Court.” (Article III, Section 3)​​​

Patricia A. O'Malley

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​​Yes, Texas Can Secede From The Union
Here we go again.
​​June 24, 2022






 

This is the third version of my secession article.  States can secede, but it’s not a good idea.  People who claim that secession is illegal haven’t read the Constitution.  Or much else.

In its May primary, Texas Republican voters approved a plan to add state secession to the GOP Party Platform.  A platform is not a law.  It’s a list of things that the party supports in public policy.  They’re asking the Texas legislature to place a secession referendum on the November general election ballot.  All it means is that a bunch of Texans want to secede.  It does not mean that it will happen.

THE CONSTITUTION
Our original Articles of Confederation declared that the 13 states were entering a permanent agreement, so it didn’t allow secession.  Most Americans believe that the U.S. Constitution also prohibits secession.  It doesn’t. 

The Constitution’s Article IV, Section 3, Clause 1 gives Congress the power to add new states to the Union.  It does not contain a single word about secession.  However, the Tenth Amendment says:






That means that the states can do whatever they want, unless the Constitution forbids it.
The Constitution does not forbid secession.  Therefore, secession is legal.

THE CIVIL WAR
Most believe that the Civil War settled the secession question permanently.  Wrong again.  The union and confederate states were deadlocked until South Carolina troops fired on the federal Fort Sumter in Charleston Harbor in 1861.  That’s when the war started.  Otherwise, the political and economic situation may have ended without a war. The only thing the war settled was that the Union army had more money, soldiers, and guns than the Confederacy.

TEXAS STATEHOOD
Some claim that Texas reserved the right to secede when it became a state in 1845.  No.  President John Tyler signed the Congressional resolution which accepted Texas as a state.  President James Polk presided over the implementation.  I looked at several historical documents, including the Congressional resolution and the Texas Constitution.  None of them mention secession at all.

THE SUPREME COURT
In 1869, the Supreme Court did declare secession unconstitutional in the case of Texas v White.  White was primarily a dispute about money.  However, the court based its reasoning on trivial arguments and the Articles of Confederation, which had been discarded in 1787 –  instead of on Constitutional principles.  A good lawyer could persuade a modern court to consider the issue again and to view it differently.  The Supreme Court has reversed itself on various issues several times in the past.

CONGRESS
Congress has never dealt with the secession issue.  Therefore, even though it’s legal, we have never established a procedure to manage it, even if we are willing to agree to it.

One scenario would require state governments to seek official secession, since the states agreed to join the Union and accept the Constitution in the first place.  That could occur through the legislature or by voters through a ballot referendum. Then Congress would have to decide whether to accept the secession.  If they don’t, I guess everyone would hang around and wait for someone to start shooting.  And eventually, someone would, since the gun goons believe that the Constitution says they can.

TREASON
A handful of minor websites, blogs, and commenters claim that seceding is treason.   It is not. 
Treason is the only crime defined in the Constitution:







So it’s only treason if it goes to war.

WHAT IF …?
While Texans may present some plausible arguments for secession, they ignore what will happen the next day.  Texans pride themselves on their legendary independent streak, but they still get plenty of money and services from the federal government.

If Congress did agree to a peaceful secession, it would open a whole new can of worms.  

What would happen to all of the federal property in Texas?

The national parks, monuments, historic sites, federal buildings, post offices, military

installations, prisons, veterans hospitals, and other property comprises millions of acres

of prime real estate, as well as buildings and furnishings.  Do you think the federal

government would just let that property go?                                                                        Photo Credit: National Geographic

Shouldn’t Texas have to pay the U.S. government for it?  

Where would they get that much money?

The US Border Patrol would vacate the border with Mexico.  That would be interesting.

The state would lose all of its federal funds for welfare, food assistance, housing, utilities, education, and other public benefits programs.  College loans and grants, small business aid, farm subsidies, disaster assistance, FHA and VA mortgages, food and drug inspection, FDIC insurance on consumers’ bank deposits, first responder grants, conservation services, interstate highways, environmental protections, civil and workers’ rights, and all of the other federal benefits would vanish immediately.

That would cause the state unemployment rate to rise drastically because all of the former federal employees in Texas would be unemployed overnight.  And that ripple effect would generate more unemployment throughout the state because those former employees wouldn’t have money to spend.  Would Texas fund those unemployment benefits?  How would they absorb that many more unemployed people?  What would happen to those families? 

They wouldn’t have access to federal social programs.

Texas would have to create its own post office, currency, passport, regulatory agencies, international relations and defense frameworks, public benefits, transportation, infrastructure, and other systems.  They might even consider applying for membership in the United Nations.  How long would Texans be willing to wait for the legislature to sort all of that out?

What would happen to any citizens who didn’t want to secede?  Would they have to move to some other state?  Would they still be American citizens?  What would happen to their property?

There’s also no mechanism for the United States to expel a troublesome state from the union.
But that’s a whole other adventure.

CURRENT STATUS
So, certain events must happen before any of this comes remotely close to reality.

  • The Texas legislature has to put a referendum on a general election ballot.
  • A majority of Texas voters have to approve the referendum.
  • IF the referendum passes, and that’s a really big “if”, the Texas and US governments would have to negotiate a separation agreement.


Or go to war.
If there’s a war, Texas would have to win.  We saw how well that worked out the last time.

Don’t worry, folks. We won’t have to solve any of these problems because this will never happen. 
Texas grownups will prevail.

FOR MORE INFORMATION
Read the Constitution
Articles of Confederation
How the US Statehood Process Works
Joint Resolution for Annexing Texas to the United States
Texas Constitution
US Supreme Court:  Texas v White, 1869

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​“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”​