Could a president unilaterally recognize secession?

In a thread I posted talking about Breckenridge being US President between November 1864 and March 1865, I raised the idea of the president unilaterally recognizing the Confederacy.

Would that have been constitutionally allowed?
 
In a thread I posted talking about Breckenridge being US President between November 1864 and March 1865, I raised the idea of the president unilaterally recognizing the Confederacy.

Would that have been constitutionally allowed?

I think only Congress can authorize the admission, division or expulsion of states to the Union. If Congress asserted that secession was illegal and the president refused to enforce it then I imagine Congress would impeach and remove him.

But all of that goes out the window if its a lame-duck president and lame-duck Congress since no one wants to do anything before the new Congress and administration takes over.
 

Tyche

Donor
At the time of the secession, it was still an open question in regard to its legality, as it’s not directly addressed in the constitution. Of course now, after the war, we’ve had White v. Texas, in which the Supreme Court ruled that the Union is legally indestructible. Meaning specifically that there’s no legal action the states or the Federal government could do to dissolve the bonds of Union (the federal government can’t expulse a state either). But this ruling clearly only happened because the Union won, perhaps if there was enough support from higher-up levels of government for peace with the south, the Supreme Court could’ve justified it with a different interpretation of the constitution.
 

Philip

Donor
I largely agree with @Tyche .

Here's what the president could do to force the point. The order of these would depend on the state of the war.

  • Order the military to cease operations and withdraw to Union territory. State militias are returned to their governors.
  • Request that the CSA send ambassadors and receive/certify them as such. He can't appoint an ambassador to the CSA without the Senate or shenanigans.
  • Direct the Secretary of State to treat with the CSA ambassadors as representatives of a foreign, sovereign state.
  • Sign a treaty recognizing the CSA as a sovereign state and ending hostilities, and present that treaty to the Senate for consent and ratification.
  • Pray he is not impeached.
The treaty would bypass the the constitutionality of secession itself but would raise questions concerning the composition of the Senate. While that is sorted out, the executive branch can continue to treat the CSA as a sovereign nation. We could end up with something like the Korean situation where there is no formal recognition.
 
@Tyche and @Philip have the right of it, I think. Post-White, the only way for a state to legally secede would be for Congress to consent to the secession, states can neither secede nor be expelled unilaterally. Pre-White the answer was debated, but was of course resolved by the Civil War.

So, the president could not recognize secession, certainly not in a way with any legal weight. No matter how you slice it, sovereignty, internal law, foreign relations, only Congress can make that decision. @Philip makes excellent points on what the President could do to give the CSA de facto recognition.
I largely agree with @Tyche .

Here's what the president could do to force the point. The order of these would depend on the state of the war.

  • Order the military to cease operations and withdraw to Union territory. State militias are returned to their governors.
  • Request that the CSA send ambassadors and receive/certify them as such. He can't appoint an ambassador to the CSA without the Senate or shenanigans.
  • Direct the Secretary of State to treat with the CSA ambassadors as representatives of a foreign, sovereign state.
  • Sign a treaty recognizing the CSA as a sovereign state and ending hostilities, and present that treaty to the Senate for consent and ratification.
  • Pray he is not impeached.
This raises the question of what happens when Congress starts sending contrary instructions to the ones the President is giving. It's one thing for the military to withdraw from the southern states, federal officials to cease functioning, and the State Department to treat the CSA as independent and another to do it when they're getting letters from Congress telling them not to. In theory of course the military and any one else under the executive branch should follow the president's instructions, but I think significant numbers might disregard them in such a scenario. And any president who pushes things that far is going to be impeached before the ink is even dry.

The treaty would bypass the the constitutionality of secession itself but would raise questions concerning the composition of the Senate. While that is sorted out, the executive branch can continue to treat the CSA as a sovereign nation. We could end up with something like the Korean situation where there is no formal recognition.
Much would depend on if the senators from seceding states attempted to remain and vote on the treaty. If they did, I would expect the loyalist senators to very quckly reconvene without the secessionists and declare themselves the legitimate Senate/that any session conducted with the participation of senators from seceding states was illegitimate. It's actually an interesting question as to the legality of those senators attempting to remain in the Senate. On the one hand, if you hold that secession is illegal and that states can't leave the Union then there's an argument that their senators remain legitimate members of the Senate. IOTL, that was countered by adopting the position that while the states themselves never left the Union, their governments became illegitiate by attempting to leave and thus the states' seats in the House and Senate became vacant. In a technical sense it would probably depend on when exactly the state in question passed it's secession ordinance and when said ordinance came into effect. If it comes into effect immediately upon passing, then the senators and representatives are out. If, however, the ordinance specified a future date when the legal separation would come into effect, then theoretically the representatives and senators should retain their seats until the date of effective secession. Unless you take the position that announcing the intent to secede has the same effect of delegitimizing the state government as actual secession does? Completely pointless to think about, but fun all the same.
 
IMO, Breckinridge "recognizing" secession would not be legally binding, but it would be practically equivalent. It would disrupt Unionist resolution to resist secession by force of arms. Bear in mind that at that time, there was a "peace party" in the North which recoiled from the costs of a war to enforce Union. Also, there was a faction among abolitionists who liked getting slavery out of the US, even by this method. Though they were reviled for this at the time, they did represent a body of opinion.

By the time Lincoln takes office, Breckinridge could have done substantial practical damage to the US's ability to put down secession, enough to discourage a lot of Unionists. And he would create legal and moral confusion, further impeding Unionism. It might be a de facto fait accompli.
 
Regarding impeachment, my question is if it could get through the judiciary committee. It is the House Judiciary Committee that decides whether there are grounds for impeachment. The chair from 1859-1863 was John Hickman, an anti-Lecompton Democrat turned Republican.

The 1858 House Elections resulted in...

Republicans: 116
Democrats: 98
Opposition: 19 >Southern Whigs, later Constitutional Union
Know Nothing: 5

The Committee was chaired by a Republican, but were there enough folks on the committee to get impeachment through it?

And of course, if the secession of the southern states isn't recognized, will deep southern states still be represented in Congress? The Upper South might be testy on the subject.

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If Breckenridge has withdrawn federal forces from the seceded south (SC, GA, MS, AL, FL, LA, TX, and AZ), handed over federal assets, returned state militias to their governors, had the state department accept CSA ambassadors, and presented a treaty to the Senate... what can the north do? Even if impeached, there's the question of whether or not he could be convicted in the Senate. Would deep southern Senators be represented if those states are in rebellion?

And if Breckinridge is impeached, there is no Vice-President at the time. The President Pro Tempore of the Senate (who per the Presidential Succession act of 1792 was to be acting president should the offices of President and Vice President be vacated) was Alabama Senator Benjamin Fitzpatrick, meaning there's a whole other legal/constitutional issue considering Alabama has already declared secession. He didn't withdraw from the Senate until January of 1861. Otherwise it'd be Jesse D Bright (an Indiana Senator and Copperhead who was expelled from the Senate in 1862 for being pro-Confederate), which isn't of much help either. It wasn't until February 1862 that Republican Solomon Foot became President Pro Tempore. Sure, they could impeach and convict Fitzpatrick or Bright as well, but that'd take even more time.

If Breckinridge is impeached and convicted before Foot becomes President Pro Tempore, Speaker William Pennington would be President.

Much would depend on if the senators from seceding states attempted to remain and vote on the treaty. If they did, I would expect the loyalist senators to very quckly reconvene without the secessionists and declare themselves the legitimate Senate/that any session conducted with the participation of senators from seceding states was illegitimate. It's actually an interesting question as to the legality of those senators attempting to remain in the Senate. On the one hand, if you hold that secession is illegal and that states can't leave the Union then there's an argument that their senators remain legitimate members of the Senate. IOTL, that was countered by adopting the position that while the states themselves never left the Union, their governments became illegitiate by attempting to leave and thus the states' seats in the House and Senate became vacant. In a technical sense it would probably depend on when exactly the state in question passed it's secession ordinance and when said ordinance came into effect. If it comes into effect immediately upon passing, then the senators and representatives are out. If, however, the ordinance specified a future date when the legal separation would come into effect, then theoretically the representatives and senators should retain their seats until the date of effective secession. Unless you take the position that announcing the intent to secede has the same effect of delegitimizing the state government as actual secession does? Completely pointless to think about, but fun all the same.

Definitely a fun concept. I'm leaning towards the notion that the House and Senate will utilize the legal rationale that lets them keep the secessionist states out of the legislature the soonest.


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I think the prospect of Breckenridge creating so much political, legal, constitutional, and practical trouble in the union that by the time Lincoln (or Foot or Pennington) enters the White House there might not be much Lincoln could do without extracting a very heavy toll (granted OTL was pretty heavy, but you get my point). Maybe the Union accepts the fait accompli without outright recognizing the Confederacy and Lincoln/Congress pushes for an anti-secession amendment ... resulting in the upper south trying to organize secession. The Upper South also realizes that without the Deep South there's a solid free state/Republican majority, which brings its own issues. Lincoln thus focuses on holding on to the rebelling Upper South (where there are still federal assets and whatnot) while cautiously avoiding the issue of the Deep South. After a couple of years, which is the most I can see this "Planters' Rebellion" lasting, the Confederacy has likely secured some sort of international recognition - making US reaquisiton much more difficult at this point in time.




I think this would be a fun timeline. Legal shenanigans, an independent Confederacy of a sort that isn't the usual cliche, likely a more successful reconstruction in the Upper South, etc.
 
Hypothetical CSA here.

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If the CSA was only the Deep South (ie the original seceding states) why would they have Arizona Territory?

Arizona had a secessionist convention on March 16th 1861 in Mesilla that adopted an ordinance of secession and on March 28th a second convention in Tucson ratified it. It seems to have been more associated with the Deep South than the Upper South, I think, considering it was Pre-Sumter.

With Breckinridge pulling troops and assets out of the Deep South, I figure this would also apply to the Butterfield Overland Mail Route. The withdrawal of Federal Troops from the route due to the Civil War OTL was a big part of what pushed the territory towards the CSA (along with general pro-Confederate sympathies in the area).
 

RousseauX

Donor
In a thread I posted talking about Breckenridge being US President between November 1864 and March 1865, I raised the idea of the president unilaterally recognizing the Confederacy.

Would that have been constitutionally allowed?
No, at best, this would have to be recognized as a treaty which has to be passed through the senate

the president -could- unilaterally stop military action against the CSA though, but then congress could choose to impeach
 
Would they though?
I've always heard people's loyalty back then was to their state first, and Lincoln was an exception with his desire to preserve the Union.
Though since he could get people on his side he couldn't have been that much of an exception.

I'm leaning towards the notion that the House and Senate will utilize the legal rationale that lets them keep the secessionist states out of the legislature the soonest.
You could argue that as part of a rebellion they don't get to vote, or as foreign nationals they don't get to vote.
 
And if Breckinridge is impeached, there is no Vice-President at the time.

I don't know much about US history, and have very little understanding of the US Civil War, but I find myself wondering why there was no VP? Wouldn't this be sorted by the POD of Breckinridge being elected? Because if the VP dies in office, wasn't there legislation about the line of succession in such an event? (Sorry, I'm clueless when it comes to US politics) :confounded::confounded::confounded:
 
I don't know much about US history, and have very little understanding of the US Civil War, but I find myself wondering why there was no VP? Wouldn't this be sorted by the POD of Breckinridge being elected? Because if the VP dies in office, wasn't there legislation about the line of succession in such an event? (Sorry, I'm clueless when it comes to US politics) :confounded::confounded::confounded:

Breckinridge isn't elected - he's President of the US because President Buchanan died and he was Buchanan's Vice President.

Replacement Vice-Presidents weren't a thing until the passage of the 25th amendment in the mid-20th Century. Instead the Presidential Succession act governed secession until then. Specifically, the Presidential Succession Act of 1792, which makes the President Pro Tempore next in line for the Presidency followed by the Speaker of the House.
 
I don't know much about US history, and have very little understanding of the US Civil War, but I find myself wondering why there was no VP? Wouldn't this be sorted by the POD of Breckinridge being elected? Because if the VP dies in office, wasn't there legislation about the line of succession in such an event? (Sorry, I'm clueless when it comes to US politics) :confounded::confounded::confounded:

There was legistlation on this which would make the President Pro Tempore of the Senate then the Speaker of the House.
 
What I meant is why is there no VP? I thought that's a sort of must when the president gets elected?

The first VP "replaced" was Spirow Agnew with Gerald Ford. Before then if a VP became President the office remained empty until the next term. For example Truman had no VP from 1945 to 1949 after he succedded FDR until Truman's term in his own right when they swore in Alben Barkley.

In this scenario, James Buchanan dies in Nov. 1860, after Lincoln is elected but before he is sworn in in March, 1861. During those months of Buchanan's term, Breckenridge, the VP, becomes President. It's a bit more complicated because VP succession was not firmly established.
 
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The first VP "replaced" was Spirow Agnew with Gerald Ford. Before then if a VP became President the office remained empty until the next term. For example Truman had no VP from 1945 to 1949 after he succedded FDR until Truman's term in his own right when they swore in Alben Barkley.

In this scenario, James Buchanan dies in Nov. 1860, after Lincoln is elected but before he is sworn in in March, 1861. During those months of Buchanan's term, Breckenridge, the VP, becomes President. It's a bit more complicated because VP succession was not firmly established.

ok. thanks for clearing that up.
 
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