Is New California Unconstitutional? SPLITSYLVANIA: STATE SECESSION AND WHAT TO DO ABOUT IT Glenn Harlan Reynolds*

SPLITSYLVANIA: STATE SECESSION AND WHAT TO DO ABOUT IT Glenn Harlan Reynolds* INTRODUCTION From Is New California Unconstitutional?

A Centennial Reflection, 210 CALIF. L. REV. 1 (2122): Brace yourselves for this one, Desert Riders.

SPECIAL NOTE: This article first appeared in February 2018 following New California State's Declaration of Independence announcement on January 15, 2018

New California might not legitimately be a State of the Union, but a mere illegal breakaway province of the State of California. In the summer of 2021, following the California financial crisis and CalPers pension collapse, public employee-supporting Democrats from the California General Assembly absented themselves from the state, preventing a quorum so that legislation slashing pension payouts could not be passed.

That absence stretched from days into weeks, as the state government largely shut down for lack of funding. Seizing on this moment, thirty-four counties from the eastern and rural parts of what was then California organized themselves and sent representatives to Fresno, where those representatives declared themselves the new, official California General Assembly and designated individuals of their choice as the new, official Governor and Attorney General.

The new legislature and officials were quickly recognized by President Trump, who, citing his authority under the Insurrection Act and Article IV, Section 4 of the U.S. Constitution, deemed them the official government of the state, and sent federal troops from the 101st Airborne Division to Fresno to ensure that what he called “leftovers” of the “old, failed state government” were unable to “cause trouble.” President Trump’s recognition was echoed in a joint resolution of the Republican-controlled Congress, which perhaps anticipated the addition of two new Republican Senators. Immediately thereafter, the now duly recognized California legislature in Fresno petitioned Congress to be allowed to split California into two states.

A narrow coastal strip extending from Los Angeles County in the South to Sonoma County in the North would remain the state of California; the rest would become the new state of New California.

Congress, at the President’s recommendation, immediately approved this change, and the state of New California was born. (Acquiescence to this scheme, the prior government of California was told, was a prerequisite to any federal bailout, but judicial review seemed unlikely anyway, as the Supreme Court had already held federal recognition of state governments to be a political question as far back as Luther v. Borden1).

But could they do this? Was this change—though literally within the wording of the Constitution—legitimate? Well, there is the precedent of West Virginia to consider.

Read the entire article HERE.