Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. 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.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

http://opiniojuris.org/2016/11/11/would-secession-by-california-and-oregon-be-legal/

5 Responses

  1. If the electoral college systematically favors small, rural, less populous states, would that defeat the “basis of equality and without discrimination” clause?

  2. Response…Would the same argument – territorial integrity – apply if Scotland or Cornwall sought to hold an independence referendum without the prior authorisation of the UK Parliament?

  3. What if the Federal Government/the Congress approves measures/a federal law affecting the rights of a minority? Could it trigger an action based on self-determination and patent violation of human rights? This could maybe represent a Kosovo-like scenario…

  4. Response… All great questions! I think a Scottish Referendum without the approval of the UK govt would be legally questionable, but that is mostly a question of UK constitutional law (which I obviously don’t know much about). I think under intl law, it is not the referendum, but the secession itself that is the problem, and yes I think Scotland is in the Quebec position (and California has even less of a case).

    I don’t think the electoral college or even federal pro-discrimination laws would be enough to justify self-determ under international law. This right is supposed to be largely about ethnic groups colonized by foreign governments. Not for states that have representation in the national government.

  5. Even more compelling, let’s take an average Californian citizen who, for example:

    – wishes to assert her rights to a free press (but is to be faced by “enhanced” libel laws);

    – to free and non-discriminatory exercise of religion (faced, perhaps, by a “Muslim ban” and faith-based programmes);

    – to a healthy environment (post-denunciation of the Paris agreement);

    – to reasonably accessible health care, including abortion and contraception (post-Obamacare repeal and “there should be a punishment”);

    – to workplaces without sexual harassment;

    – to free and fair elections (in the aftermath of Shelby); and

    – to an independent judiciary (post the list of “reliable” judges appointed to give predetermined views)?

    It’s not hard to compile a list of commitments from the incoming administration that conflict with these and with a range of other rights protections. Not to mention that not only is she not able to exercise these rights, but has to overpay taxes to subsidise a federal government and net recipient states that actively deny them?

    Are we (is she) there yet?

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