Can Hawaii secede from the U.S. through legal means?

Question

Can Hawaii secede from the U.S. through legal means or is it forbidden by U.S. law? I am asking, because I doubt the U.S. would accept the result of a referendum that rules that the Hawaiians want to secede from the U.S. just like Russia or China wouldn't accept it.

Answer 1

Currently, there is no legal means for a state to secede form the U.S.

A quick Google search yields So you want to secede from the U.S.: A four-step guide - The Washington Post:

"When the Confederate states seceded in 1861 and were then defeated in the Civil War, the argument is that they demonstrated that you can't secede from the Union. The 1869 Supreme Court case TEXAS v. WHITE ET AL (Legal Information Institute) determined that the secession was never actually a real thing in the eyes of the federal government. The Confederate States of America wasn't an independent country any more than your house is its own country simply because you say it is. 'The Constitution, in all its provisions,' the justices wrote, 'looks to an indestructible Union composed of indestructible States.'"

Also from that Post piece:

In 2006, Justice Antonin Scalia was asked by screenwriter Dan Turkewitz if the idea of Maine seceding from the country made sense as a possible plot point. Scalia, perhaps unexpectedly, replied.

"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. ... 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."

A state could secede if the US Constitution was amended to allow secession, but the chances of that happening are low.

Also see Secession in the United States - Wikipedia

Answer 2

The US Civil War is generally taken to have settled the question as to whether any state can, on its own, leave the Union. It cannot. In Texas Vs White et al 74 U.S. 700, 19 L.Ed. 227, 7 Wall. 700 1868 the US Supreme Court confirmed this when wrote (in pars 101 & 102 of the opinion):

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.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

Notice, however, the statement that the adherence of a state to the US could not be changed: "except through revolution, or through consent of the States."

This leaves open the possibility of a bilateral departure of a state.

Congress has, under the Constitution, the power to admit new states to the Union, and to join stats or parts of states into new states, or to divide states, with the consent of the states involved. Another answer to this question suggested that a treaty might lawfully cede potions of the territory of the United States, and this seems plausible, although there is no explicit provision for such an action, nor is there any clear precedent in US history.

So if a State were to request, via an act of its legislature, perhaps supported by a vote of its people, that it leave the US, and if the US Congress passed a law consenting to this, and declaring that the state involves was no longer a part of the US, would that law be valid under the Constitution? It might well be held to be valid, given the other powers Congress has over the extent of the Union, but it might equally be held to be invalid and void. There is no case law on that point, for Congress has never yet consented to any such attempted departure of a state.

Surely an amendment to the Constitution could be passed, clearly giving Congress such a power. That is nothing but speculation, as no such amendment has even been formally proposed.

Thus the question must be considered undecided at this time.

Answer 3

No, not alone. There is no constitutional means to leave the union under the current US constitution (Art. 4 §3 is a one-way path). An amendment could be made to allow secession.

Answer 4

Speculatively, maybe, but only by a mutual agreement between Hawaii and the United States.

It's not a straight-forward process. Article II, Section 2, Clause 2 outlines that treaties are signed by Presidents and must be ratified by two thirds of the Senate. It also states that ratified treaties have the force of the Federal law.

While the SCOTUS has ruled that treaties as laws can be interpreted by courts, that does not extend the courts' power to shaping foreign policy.

Consider, as a hypothetical, the US being successfully invaded and parts of the territory becoming occupied. Assume that the occupying army agrees to a treaty to end the war under the condition that the remaining part of the US considers the formerly-US territory to be part of the invading power's territory. This is clearly within the intended job of the President to execute wars and shape foreign policy.

Again, this is highly speculative since there has never been a time (with the exception of the Civil War) when such a situation could have been even contemplated. But what if the Union lost the war and the Confederacy decided to agree to a mutual separation treaty? Clearly the Treaties Clause gives a US President the power to agree to end the war under such terms. And clearly it was never intended that the only way such a separation would take place would be for the Confederate states to have to ratify a new Constitutional amendment that would give a President the authority to sign such a treaty. If for no other reason than the fact that the representatives of enemy states could not be trusted. The Constitution was not meant as an exercise in absurdity. And any court would confirm that if asked.

In the case of such a treaty, citizens of Hawaii would probably have standing to sue (because it would be a federal law which would diminish their rights) and it would be up to SCOTUS to decide whether such a treaty could be legal.

Answer 5

The Constitution is silent on secession. One may form the opinion it does not have a provision allowing states the option of seceding, but it is also true that is does not prohibit it, and we have thousands of laws and actions that have been created and taken because there is no prohibition on something. In the Early Republic the Federalists wanted a National Bank, and Republicans said no, it is not stated anywhere in the Constitution that one can be created. The Federalists refuted this saying the Constitution does not prohibit it, so it is indeed legal to have one. They were the majority then and passed a law creating one. Decades later it was repealed legislatively. Some then, tack to judicial opinions, but again, these are opinions, not laws. Judges and Justices vary in opinion widely, and they are not elected representatives, thus they cannot legislate. So, until the Constitution is amended to prohibit or permit secession, the legality of it is a matter of opinion. No right or wrong answer.