No, Texas can’t legally secede from the U.S. — despite popular myth

In 2009, then-Gov. Rick Perry made national headlines for jokingly suggesting that Texas might secede.

In June 2022, the Texas State Republican Convention adopted a platform urging the Legislature to put a referendum before the people of Texas in November 2023 “to determine whether or not the State of Texas should reassert its status as an independent nation.”

And on Monday, state Rep. Bryan Slaton, R-Royse City, filed a resolution seeking an election to allow Texas voters to decide whether to leave the United States.

Despite perennial talk of another secession, the law is clear that Texas may not leave the union.

The idea is most often raised by conservatives in the state who are angry over some kind of policy coming from the federal government — and the calls seem to become more frequent when a Democrat is occupying the White House. State Rep. Kyle Biedermann, R-Fredericksburg, filed a bill in 2021 to create a referendum election on whether Texans should create a joint legislative committee “to develop a plan for achieving Texas independence.”

“It is now time that the People of Texas are allowed the right to decide their own future,” he said in a statement announcing the legislation.

Even if the Legislature were to act on the new Republican Party proposal to put an independence referendum on the general election, it would not be legally valid.

“The legality of seceding is problematic,” Eric McDaniel, associate professor of government at the University of Texas at Austin, told The Texas Tribune in 2016. “The Civil War played a very big role in establishing the power of the federal government and cementing that the federal government has the final say in these issues.”

As the United States was torn apart by divisions over whether slavery could expand into the nation’s western territories, Texas in 1861 voted to secede from the Union. In the ensuing Civil War, up to 750,000 people — more than 2 percent of all Americans — died. Following the defeat of the Confederacy in 1865, Texas was formally readmitted to the Union in 1870, during the Reconstruction Era. Many historians believe that when the Confederacy surrendered at Appomattox in 1865, the idea of secession was forever defeated, McDaniel said. The Union’s victory set a precedent that states could not legally secede.

Even before Texas formally rejoined the nation, the U.S. Supreme Court declared that secession had never been legal, and that, even during the rebellion, Texas continued to be a state.

In the 1869 case Texas v. White, the court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas Legislature — even if ratified by a majority of Texans — were “absolutely null.”

When Texas entered the Union, “she entered into an indissoluble relation,” Chief Justice Salmon P. Chase wrote for the court. “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. 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.”

Chase added: “The ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”

Another source of confusion and misinformation over the years has been language in the 1845 annexation resolution that Texas could, in the future, choose to divide itself into “New States of convenient size not exceeding four in number, in addition to said State of Texas.” But the language of the resolution says merely Texas could be split into five new states. It says nothing of splitting apart from the United States. Only Congress has the power to admit new states to the Union, which last occurred in 1959 with the admission of Alaska and Hawaii.

If there were any doubt remaining after this matter, the late Supreme Court Justice Antonin Scalia set it to rest when he asked by a screenwriter in 2006 whether there was a legal basis for secession. In his response, he wrote: “The answer is clear,” Scalia wrote. “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)”

Sewell Chan, Aneri Pattani and Matthew Watkins contributed reporting. This story was originally published in 2016 and then updated in 2021 and 2022.

Correction, June 21, 2022 at 7:45 a.m.: Correction, June 21, 2022 at 7:45 a.m.: A previous version of this story misspelled the name of a former Texas Tribune reporting fellow. Her name is Aneri Pattani, not Aneer Pattani.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/01/29/texas-secession/.

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