Albuquerque Journal

A legal and political primer: Why counties can’t secede

Unlike states, municipali­ties have no independen­t rights

- BY MATTHEW C. SIMPSON ADJUNCT PROFESSOR, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NEW MEXICO Matthew C. Simpson teaches political theory and American politics at the University of New Mexico.

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.

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