A legal and political primer: Why counties can’t secede
Unlike states, municipalities have no independent rights
Ever since Americans declared their independence from the British Empire, some people have judged that the best way to solve our political differences is to leave. Secession, as an idea and even as a reality, has been part of American politics from the beginning. Now, a New Mexico state senator has proposed a constitutional amendment that would allow counties to secede from the state. While there may be cases where the only political solution is dissolution, this is not one of them. County secession is not only impractical, it doesn’t make sense legally.
Anyone who teaches U.S. government can tell you that one of the most difficult topics in the class is the sharing of power among municipalities, states and the national government. We call the system “federalism,” and at times it seems to defy reason. The states are in some ways subordinate to the national government and yet in other ways independent of it. To understand the powers of the different levels of government, we can look at the origin of the United States as a nation.
The 13 original states were virtually independent countries before they became part of a larger country called the United States. When the time came to form a union, the nation’s founders did not erase the original states and start over with a blank map — although they considered it. Instead, they invited the existing states to join a federation in which each state would be bound to the others and yet remain an independent source of governing authority within its borders. As the national government admitted new states, it gave them the same status as the original 13.
The legitimate topic of states’ rights under the Constitution can, however, lead to confusion when it comes to government within the states. We are seeing this confusion right now in New Mexico. While the United States is a federation of states, the states are not federations of counties or cities. Unlike the states themselves and Native governments, municipalities in the U.S. have no independent legal rights, least of all a right to secede.
In a unanimous decision in the 1907 U.S. Supreme Court case “Hunter v. City of Pittsburgh,” Justice William Moody wrote, “Municipal corporations are political subdivisions of the State, created by it and at all times wholly under its legislative control.” Moody drew on an earlier case from Iowa in which the judge had ruled, “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the (state) Legislature. It breathes into them the breath of life, without which they cannot exist.”
City and county governments are, in this sense, the local branches of the state government. For this reason, a county cannot have the right to secede from a state, because whatever rights it has emanate from the state in the first place. Put another way, counties are not at all independent of their states in the way that states are independent of the national government. New Mexico’s long tradition of “home rule” usually keeps the state government out of the day-to-day business of counties and cities. But it doesn’t alter the branch-to-headquarters relationship of local governments to the state government.
If two adjoining states want to adjust their border, they are free to do so. But today it’s hard to imagine the government of New Mexico or any other state would give away a county. And the county in question has no right to decide what state it belongs to or whether it belongs to a state at all. At the end of the day, New Mexico’s voters can pass any constitutional amendment they want. They can say counties can secede, just as they can say all triangles in New Mexico have four sides. But such proposals are sure to confuse and mislead voters, encourage dishonest grandstanding by political leaders, and incite argument where there is, in fact, nothing to argue about. Given our state’s significant challenges, and our Legislature’s limited schedule, we can hope they will spend their time on proposals that might improve the lives of New Mexicans.