By Chris Reed.
Two 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.