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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.

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    Does this answer your question? Does Texas have a legal right to leave the Union or secede?
    – Nij
    Jun 27 '21 at 6:13
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    The linked question is related, but not identical. Jun 27 '21 at 17:50
  • Any and all answers to that question are also answers to this question, therefore it is a duplicate by the definition used on Stack Exchange.
    – Nij
    Jun 27 '21 at 20:20
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    I agree with @DavidSiegel. It is not a duplicate. kisspuska might have a point about an alternative close reason, but with 4 answers already, I'm voting to keep open. Jun 27 '21 at 23:49
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    @Nij the linked question deals only with what a state has a right to do on its own. Legal paths involving the consent of Congress or of other states would not be responsive to that question, but are probably the best answers here. So this is not a duplicate. If closed on those grounds, i will vote to reopen. Jun 28 '21 at 0:07
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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

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  • Since Scalia was speaking about a book, rather than a case in front of him, it's entirely possible that he was simply being tongue-in-cheek. If anything, the opposite is the case. Because of how the Civil War had turned out, the legal framework for a separation had not been established. The Constitution was written by the same people who wrote "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another..." So it's not like they didn't think it would ever come up.
    – grovkin
    Jun 27 '21 at 7:05
  • Those same people also wrote into the Articles of Confederation (before the Constitution) that the Union was "indissoluble", as is mentioend in the test of Texas vs White, which is worth reading. Jun 28 '21 at 0:14
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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.

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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.

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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.

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  • Why would Hawaiians be authorized by the UN Secretary to begin a war the end of which would result in such seceding? The question was whether Hawaii can secede, this hypothetical presumes either a foreign power or some unlawful acts on the parts of Hawaiians neither questioned here
    – kisspuska
    Jun 27 '21 at 6:29
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    @kisspuska the hypothetical does not presume a war. It uses peace treaty, ending a war, as a demonstration of why it's not the case that there is no possibility of a legal separation. A treaty is the legal instrument for such a process.
    – grovkin
    Jun 27 '21 at 6:48

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