‘Calexit’ would face vast legal obstacles

fullsizerender-1Two weeks after Donald Trump’s surprise win in the presidential election, dismayed Californians continue to talk up the idea of secession in op-eds, letters to the editor, social media and online comments. Each day, more of California’s vote comes in, lifting Hillary Clinton’s lead in the national popular vote and reminding Clinton voters of the Golden State’s differences with Trump states.

This has led to the birth of a self-styled California independence movement — yescalfornia.org — that on its website urges Trump opponents to prepare for a spring 2019 vote on whether California should leave the union. The group is gathering signatures for a November 2018 ballot measure that would authorize the vote on independence.

But the organization and most “Calexit” advocates do not note how legally difficult the process of secession is.

In a 2006 letter to a Hollywood screenwriter who asked him about the feasibility of state secession, Justice Antonin Scalia was dismissive.

“I cannot imagine that such a question could ever reach the Supreme Court,” Scalia wrote. “To begin with, the answer is clear. 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.’)

“Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

Scalia’s sweeping stance was also the formal view of the Supreme Court in an 1869 case in which justices affirmed that the U.S. government had never recognized the right of Southern states to secede, which triggered the Civil War.

“The Constitution, in all its provisions,” the court wrote, “looks to an indestructible Union composed of indestructible States.”

In a June Washington Post story about some Texans’ interest in secession because of their unhappiness with President Obama, Columbia University Law School professor Gillian Metzger noted that there was not even a mechanism in the Constitution for such a separation.

Only way out: Constitutional amendment OK’d by 38 states

West Virginia was allowed by Congress to secede from Virginia — but not the Union — under unique circumstances born of the Civil War. Scholars say that the only way that California could be allowed to leave the United States is through a constitutional amendment.

This is an exceptionally difficult process. An amendment would have to be approved by three-quarters — 38 — of the states after it had been sent to their legislatures for consideration either by a two-thirds vote of both the House and Senate or by the support of two-thirds — 34 — of the states at a constitutional convention convened by Congress.

Only one constitutional amendment has been approved in 45 years. The 27th Amendment, passed in 1992, forbids members of Congress from raising or cutting their pay during their current term. It was originally introduced in 1789 by James Madison and swept to adoption 203 years later after being touted in 1990 as an anti-congressional corruption measure by a newly elected Ohio Republican House member — future Speaker John Boehner.

Even if a secession movement overcame all these obstacles, it is still an open question whether it would actually be popular with Californians. On the most practical level, while non-U.S. citizens can be part of Social Security and receive checks, they can’t be paid if they live outside of the U.S. for more than six months in a row. They must return to the states for at least a month to trigger renewed payments, according to the Social Security Administration.

5 comments

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  1. Dude
    Dude 21 November, 2016, 09:42

    Get a grip Dims. In Obama’s own words that were echoed by all of you after he won his first term, “Elections have consequences. We won. You lost. Get over it”. What? You don’t like the sound of that now? Your whining is music to our ears. Btw, “Secession”, really? That would require a constitutional amendment. Good luck with that. Bwa ha ha ha ha!

    Reply this comment
    • Bill Gore
      Bill Gore 21 November, 2016, 14:33

      Ponytails hair on fire, trying to channel that old ’60s righteousness even as they have one foot in the grave.
      Hail Trump!

      Reply this comment
  2. Jim
    Jim 21 November, 2016, 14:19

    I cannot imagine one state going alone with all the interconnections between it and other states as well as the US. If it was 1945 the Japaneses would have have bypassed Hawaii then headed for the west coast Much of their water for growing crops come from the Colorado river which is shared with other states under control of the U.S .They are last in line . their shipping industries would die because of Our control of Interstate shipping laws. Their crude oil needs would have to come from their precious oil fields just off the coast which the don’t want us to use. Oh I forgot 12 miles off coast belongs to us. If oil were available, where would would the build their refineries? I could go on and on but why should I? They have not thought this through.

    Reply this comment
  3. Richard Rider
    Richard Rider 21 November, 2016, 15:19

    I’m pulling for this left wing CalExit movement to catch fire (though it won’t). I can imagine all the socialists in the U.S migrating to California and then collectively riding that ship out to sea as a new nation. It would be a gala affair — paralleling the launching of the Titanic. I can live with that!!

    And I say that as a Californian who would reluctantly move out of this Workers Paradise prior to the launch. To stay would mean a willingness to offer up one’s assets, earnings and freedom of choice “for the greater good.”

    We limited government types would (grimly) relish the result. Though the Internet, we could daily watch the socialists stealing more and more from each other, as they possess an endless list of “needed” redistribution programs. Remember, until rather recently, basket case Venezuela was a relatively prosperous country.

    Eventually the remaining producers and the ambitious would seek to flee their Nirvana. I would expect the true believers remaining in this Left Coast country would build Trump’s Wall — well, actually, a new Berlin Wall — to keep the ingrates from departing.

    I would not wait for that feeding frenzy to start before deciding to depart. I’d depart before the secession — opting for less desirable (but more free) climates found in the other states. All the other 57 states would benefit from the with mass outmigration of their socialists to California.

    I’d hate to leave the Golden State. But freedom — even relative freedom — always has a price.

    Reply this comment
  4. Bill
    Bill 22 November, 2016, 18:06

    Please the rest of the states help them secede, they have screwed the country over long enough. Pass the constitutional amendment.

    Reply this comment

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Chris Reed

Chris Reed

Chris Reed is a regular contributor to Cal Watchdog. Reed is an editorial writer for U-T San Diego. Before joining the U-T in July 2005, he was the opinion-page columns editor and wrote the featured weekly Unspin column for The Orange County Register. Reed was on the national board of the Association of Opinion Page Editors from 2003-2005. From 2000 to 2005, Reed made more than 100 appearances as a featured news analyst on Los Angeles-area National Public Radio affiliate KPCC-FM. From 1990 to 1998, Reed was an editor, metro columnist and film critic at the Inland Valley Daily Bulletin in Ontario. Reed has a political science degree from the University of Hawaii (Hilo campus), where he edited the student newspaper, the Vulcan News, his senior year. He is on Twitter: @chrisreed99.

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