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I was reading an article about attorney general Jeff Sessions addressing the state of California regarding the state's recent laws on immigration. In summary, these laws make it illegal for a private business to cooperate with ICE, further clarifying the state as a so called "sanctuary" for illegal immigrants. Sessions' words left me with the impression that the American Civil War created ongoing legal implications that could be applied in a case against California. His words were:

"I understand that we have a wide variety of political opinions out there on immigration. But the law is in the books and its purposes are clear and just," Sessions said during a speech to the California Peace Officers' Association in Sacramento on Wednesday.

"There is no nullification. There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg, to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled."
Source

I understand the great ways the civil war changed the country, but this is honestly the first time that I've heard it invoked as if it was a legal precedent. Am I understanding Sessions' words correctly, or is he speaking more rhetorically than legally? More broadly, in what ways can the Civil War be cited as a political or legal point?

  • Is there indication he was stating a legal opinion and not a political grandstanding? It sounded to me from above quote more like "you're part of the Union and can't act like you're independent". The supremacy of Federal Government on immigration is a settled matter as per multiple SCOTUS rulings and has little to do with Civil War – user4012 Mar 7 '18 at 19:59
  • @user Yes, but Sessions didn't cite those rulings. He cited the civil war. – frеdsbend Mar 7 '18 at 20:00
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    @notstorebought That depends on what Sessions meant. He seems to be speaking with both voices. – frеdsbend Mar 7 '18 at 20:57
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    This may be relevant: en.wikipedia.org/wiki/Nullification_(U.S._Constitution). Sessions seems to be referring to Nullification. It's an exercise for the reader (or courts?) to determine if that's happening here. – Ethan Mar 7 '18 at 21:29
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    @fredsbend He didn't cite the Civil War. He employed a rhetorical device wherein he invokes significant and "obvious" things which collectively allude to his point to (perhaps) subtly indicate that the people he's speaking against are dumb and uneducated. The intended follow-up thought for people on his side is "Yeah, what are they, stupid?" This is not a dispassionate statement of research and legalese. – zibadawa timmy Mar 8 '18 at 8:44
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This is the kind of thing that Antonin Scalia used to say. It's a bit facile. The actual precedent was set after the Civil War in Texas v. White:

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

The basic idea is that the Supreme Court had jurisdiction over certain matters related to states. But one side argued that at the time of the issue, Texas was not a state. The court ruled that it was and that the secession was unlawful.

Going forward though, note the exceptions:

  1. Revolution. Only counts if you win.
  2. "[T]hrough consent of the States."

They did not define a mechanism for the "[s]tates" to consent. So it's quite possible that California could secede by voting on it in a referendum and then convincing Congress to pass a law saying that they could.

There is some precedent for this. There are places in Canada which used to be claimed by the United States. The Treaty of 1818 ceded those claims to Great Britain in exchange for their waiver of claims in what is now the Dakotas and Minnesota.

So

  1. There was a legal precedent, established as the result of Civil War. But it wasn't established by the Civil War. It was established by the Supreme Court.

  2. One might argue that it set a political precedent. But that can be countered by, well, slavery. There was a definite reason to view slaves as involuntary participants in secession. Many of them would have preferred to have stayed in Lincoln's United States. That gave the Civil War a moral backing that modern anti-secession movements would lack.

  3. The legal precedent is unclear. While Texas v. White is clear that California can't leave unilaterally, it does not define "consent of the States." As a result, Attorney General Jeff Sessions is overly positive in his claim. It's possible that departure would require a constitutional amendment. It's also possible that a simple law would be sufficient.

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