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This relates to an item legislated by the Texas republican party recently. Overlooking the more regressive and dangerous items, and the frivolous and inconsequential items, they are also throwing the idea around of leaving the United States. This is not legally possible.

Texas has a history of threatening to do this every fifteen years or so, for better or for worse. Aside from legality, it would be a massive inconvenience for parties on both sides of the border, and leave them with substantial debt which I do not believe that they deserve to face alone; but then, I am not specifically a Texan.

If they did secede from the union, they would lose a lot of Federal resources which Texas has come to depend on, along with social security, armament, medicare, and any number of additional federal programs. This would also result in the retrieval of a massive amount of infrastructure and federal hardware from Texas, which would not be instantaneous or easy. That said, a lot of us would be happy to wish them well and let them go, given proper congressional management of the issue, but it just can't reasonably be done.

As precedent, in 1864 (Texas v. White), the Supreme Court determined that the constitution did not permit states to unilaterally secede from the union, and the agreements made with the defunct Confederated States of America (including by Texas) were null.

So, I'm wondering, if the Republic of Texas is tired of being a state, can we just allow them to become a territory instead? They would still benefit from a lot of the federal aid they need, but they would no longer be represented in congress as a state. They would additionally receive advantages akin to Puerto Rico, like not having to pay federal income taxes. Is there precedent against this, since they would not be leaving the nation?

Would this interfere with the legislation of Texas v. White, or any other unmentioned case?

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    They would also have to pay their fair share of the national debt which I don't think they have any possibility of doing.
    – Joe W
    Jun 29, 2022 at 18:49
  • Is anyone in that conference seriously proposing they do just this, i.e. become a territory? There's no real advantage as it involves giving up their Senate seats etc. Looking at en.wikipedia.org/wiki/Taxation_in_Puerto_Rico there are more caveats to not paying federal taxes than one might sumize. Jun 29, 2022 at 18:55
  • @Fizz No, but given the nature of that conference, perhaps they should be. It's certainly more reasonable. Jun 29, 2022 at 21:49
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    Is there precedent for a US state opting to become a territory without leaving the nation as a whole?
    – Mazura
    Jun 30, 2022 at 11:40
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    "They would additionally receive advantages akin to Puerto Rico, like not having to pay federal income taxes." That's the current system for all the territories with meaningful populations, but the territories are handled individually; whether or not a Texas territory paid income taxes would be handled legislatively. After all, D.C. is not a state and elects no federal legislators with voting power (it just gets three presidential electoral votes that no one campaigns for, and a single representative in the House with no power in floor votes), yet it's still subject to income tax. Jun 30, 2022 at 16:04

3 Answers 3

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The "advantages" of being a territory are meager at best, and countermanded by a serious overriding problem: You have to follow federal law, but you have no say in what that law says. You don't get to vote for President or for anyone in Congress, and your territorial (local) system of government is defined by the terms of your organic act (a federal law that you don't get to vote on). It is inconceivable to me that any state, let alone such a proud state as Texas, would be willing to accept such a serious derogation of their sovereignty for some minor financial benefits. It would be seen as a serious humiliation, not something you would ask for.

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    That wasn't my question sir—I agree with you on this except that they're already voting to secede. That is arguably much, much worse, particularly for a resource-starved region like Texas. I'm, at least academically, looking for a potential mitigation of that problem and a milder step if they think they want Texan independence. The question was not "should they secede", but what else could they potentially do instead? Jun 29, 2022 at 23:28
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    @MichaelMacha: Territorial status is a "worst of both worlds" solution. They want to secede in order to increase their sovereign power, and you are proposing that they give up more of it.
    – Kevin
    Jun 29, 2022 at 23:28
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    @MichaelMacha: Money is not sovereignty, and in fact money has nothing to do with sovereignty. Sovereignty is about the power to pass (and enforce) whatever laws you want, as well as various other government functions such as entering into foreign relations. Texas's status as a state restricts its ability to do those things, because its sovereign powers are shared with the federal government. Territorial status would impose equal or greater restrictions in just about every way possible.
    – Kevin
    Jun 30, 2022 at 0:13
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    @MichaelMacha You're showing some Texans want secession, not to lose their status as a state and become a territory. The point of this answer is to say that becoming a territory is not something that would appeal to Texan secessionists; they would not see it as a "milder form of independence". It isn't relevant hat you see secession as a bad idea for Texas and you see territoriality as "less bad"; Texan secessionists themselves would not see territoriality as giving them any of the things they want from independence, so they wouldn't go for it as a compromise solution.
    – Ben
    Jun 30, 2022 at 0:50
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    @MichaelMacha Frame challenge answers (i.e. "the premises of your question are wrong, so a straight answer wouldn't be as useful as you think") are on-topic here in my understanding, and this answer seems to be an attempt at one. This answer existing doesn't preclude other answers existing, such as ohwilleke's. I only commented because it looked form the discussion that you weren't understanding what it was really trying to say; if that's mistaken I apologise! If you understand it and don't find it useful, the recommended action would be to downvote it and move on.
    – Ben
    Jun 30, 2022 at 4:04
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Here's what the Constitution says about territorial changes and states:

(Article IV, Section 3, emphasis mine)

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

In other words, changes in the makeup/territory of existing US States cannot be made unilaterally by states (or by Congress). Congress must concur, as must the state(s) in question.

Here's the clarification (decision) made by SCOTUS 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.

Again, seems pretty dang definitive here. Congress has to agree.

Now if Texas can convince Congress to go along, sure. As a neighboring Oklahoman, I'll confess I've had a few moments where I wouldn't be sad to see them go. But as a matter of policy that seems highly unlikely.

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  • The open question is whether Congress is allowed to agree.
    – ohwilleke
    Jul 1, 2022 at 19:14
  • @ohwilleke - Both the constitution and White flatly stated that Congress agreeing is how such changes are made. In the absence of something at the same level saying its not an option period, I'm not sure why there would still be a question.
    – T.E.D.
    Jul 1, 2022 at 19:23
  • The Constitution says absolutely nothing directly about a state ceasing to be a state. Any statement in White on point would be dicta as Congress didn't approve, and in context, the language in White is quite unclear as applied in this manner.
    – ohwilleke
    Jul 1, 2022 at 19:28
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There is no constitutional mechanism for doing so, and it has never been attempted. The conventional wisdom in the legal community is that the U.S. Civil War resolved this issue and that it is not allowed.

But, no speculative legal issue of first impression can ever be definitively resolved with great certainty.

State lines can be redrawn with the consent of the affected states and the U.S. Congress, and some future decision makers could decide that this process would also be constitutionally sufficient to allow a state to be demoted to a territory or to secede.

Alternatively, one could argue that it takes an Article V Constitutional Amendment to which the state in question consents.

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    The conventional wisdom in the legal community is that the U.S. Civil War resolved this issue and that it is not allowed. any references for this?
    – Stuart F
    Jun 30, 2022 at 7:01
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    @StuartF - Texas vs. White Seems particularly relevant here. Not sure why the post needs to go into that though, since that info is already in the question.
    – T.E.D.
    Jun 30, 2022 at 14:01
  • @StuartF I've seen it so stated by both courts and scholars but lack the time to get a lnk.
    – ohwilleke
    Jun 30, 2022 at 19:51
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    @T.E.D., Texas v. White is about unilateral secession. I'm not aware of any rulings regarding secession where all parties agreed to it.
    – Mark
    Jun 30, 2022 at 23:02
  • @Mark Agreed. It would be a question of first impression because it has never happened.
    – ohwilleke
    Jun 30, 2022 at 23:37

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