Here's Why #Texit Can, but Won't, Happen

Indeed, we probably can.EXPAND
Indeed, we probably can.
Texas Nationalist Movement via Facebook

Daniel Miller is seizing his moment. Following Great Britain's vote Thursday to remove itself from the European Union, the leader of the Texas Nationalist Movement has jumped on the opportunity to push his message of Texas sovereignty as hard as he can.

“From the looks of it, the British people have chosen to take control of their political and economic destiny,” Miller, who did not respond to an interview request, said in a statement early Friday. “The forces of fear have lost. It is now important for Texas to look to #Brexit as an inspiration and an example that Texans can also take control of our destiny. It is time for Texans to rally with us and fight for the right to become a self-governing nation.”

Miller and his cronies at the TNM are pushing Texas' Republican leadership to put Texas secession on the state's 2018 general election ballot. They are stoking fear of immigration and the desire for self-determination in an effort to get a leader who doesn't actually have a desire to leave the United States to allow a stay/leave vote. When asked about seceding in October 2015, Governor Greg Abbott, as he has for years, stressed that the better solution was to propagate Texas values across the rest of the United States.

Assuming that Miller and his cohort manage to get a vote, which is extremely unlikely, they would face several challenges.

Miller alluded to one of them on Facebook on Sunday morning. The closest thing to a Supreme Court opinion on secession that's been issued in the last 100 years is a letter written by the late Justice Antonin Scalia to a filmmaker doing research on potential secession for a screenplay in 2006.

"I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. 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.

"I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay," Scalia wrote.

If Scalia's legal opinion is correct, Texas cannot force the United States to let it secede if the U.S. refuses. That doesn't mean it couldn't happen, says Eugene Volokh, a law professor at UCLA who's written extensively about potential secession.

"A state couldn’t legally force the U.S. to let it secede, if the U.S. refused. But if the state and the U.S. agreed, that would be doable; at worst, it would require a constitutional amendment (always possible, though it requires two-thirds of the vote of each house of Congress and a majority vote in three-quarter of the state legislatures), but most likely an act of Congress, coupled with a majority referendum that the state government views as binding, would suffice," Volokh writes in an email.

Whether Texas left or not, Volokh says, would be a political decision by the United States and the people and government of Texas, rather than a legal one. Still, he says that's unlikely to happen, at least as things stand.

"I very much doubt that the political will would be there today, or any time in the immediate future. Most Texans, I think, are proud to be Americans, whether or not they like what the federal government is doing, and they can see the benefits of remaining part of a powerful country that can defend their interests. But if things change, and Texans want to leave and can persuade the rest of the country to let them go, then that could certainly happen," he says.

At the 2016 Texas Republican convention in May, Texas state GOP delegates, perhaps one of the most conservative and federal-government loathing groups that could be put together, wouldn't even go so far as to endorse secession at the platform level, knocking down a plank that would've called on Abbott to do what the TNM wants.


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