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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.
For more: Texas v White.
