Texas’ little-known right to split itself into 5 states

Civics 201 is a regular column exploring some of the finer points of Texas government, politics, and law.

Under a little-known quirk of U.S. law, Texas is unique among the 50 states in having been admitted to the Union with a pre-approved ‘entitlement’ to further divide itself into up to five states should it choose to do so, though exactly how this might happen is up for some debate.

The 1845 congressional resolution annexing Texas and consenting to its statehood included this proviso: “New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof…”

Some Texas lawyers refer to this obscure entitlement as the ‘Texas Tots’ clause, because it allows the mother State to create child States – ‘tots’ – out of its own territory. It was adopted not only by the U.S. Congress but by the Texas legislature, in the same year, when it consented to annexation.

On the basis of this text, some Texas politicians seriously espoused divisionism from the 1840s until the 1930s. According to the Texas State Historical Association, the Texas gubernatorial campaign of 1847 “centered around the division of Texas into East and West Texas.” The idea resurfaced in the Texas legislature 1852 but was defeated by a vote of 33 to 15.

Throughout the 1920s and 1930s, John Nance Garner, known as ‘Cactus Jack,’ espoused the idea as Speaker of the U.S. House of Representatives and then as Franklin Roosevelt’s vice president. He told The New York Times in April 1921, “An area twice as large and rapidly becoming as populous as New England should have at least ten Senators.”

After the 1930s division proposals were not taken seriously.

Nonetheless, a Texas Law Review article published in 2004, “Let’s Mess with Texas,” by Vasan Kesavan and Michael Stokes Paulsen, argued that Texas still retains the right under law to divide itself into smaller states. “The provision was bargained for with the sovereign Republic of Texas, and given in exchange, in part, for the latter’s agreement to enter the Union…[it] gives Texas the legal entitlement to reconstitute itself as five states, now, by simple act of the Texas Legislature, and with the consent of each of the new states thereby created.”

Malcolm Gladwell, a New Yorker writer who interviewed law professor Michael Stokes Paulsen, the co-author of the Texas Law Review article, said that his “jaw dropped” when he first learned about Texas’ right to divide itself. “This is something with a potential to turn American politics upside down,” he said in a May 2018 episode of his Revisionist History podcast. “Texans in control of American politics for the next century,” Gladwell opined, referring to the prospect of having ten Texans in the U.S. Senate.

On the podcast Gladwell comments, “Congress gave Texas permission to form another four states within its borders, which makes sense: Texas was an independent country at the time it joined the union, and a very big country at that – there were complicated political considerations in 1845 about the balance between slave states and free states. That’s a whole other story. What matters is that according to Kesavan and Paulsen’s exhaustive constitutional analysis, the offer still stands: new states of convenient size may be formed… It means that all that has to happen is for the Texas Legislature to sign off on division and it’s a done deal.”

Crucially, however, the U.S. Constitution governs how states are admitted into the Union, and it mandates Congressional consent for the admission of new states. At issue therefore is whether the 1845 resolution already pre-clears the creation of new Texas states or else implies that further Congressional action may be necessary. The text itself says that the Texas Tots “shall be entitled to admission under the provisions of the Federal Constitution,” adding, “…such states as may be formed… shall be admitted into the Union” (emphases added).

Notably, parts of the 1845 resolution have been rendered unconstitutional by the 13th Amendment to the U.S. Constitution, because they authorized slave-holding within the Texas territories, as long as they lay south of the northern boundary of the Panhandle, a boundary then known as the Missouri Compromise Line (Texas at the time claimed territory north of its present boundary).

 ‘Texas loves its own bigness too much to do it’

Controversially, Kesevan and Paulsen argue that the rest of the Congressional statute remains in effect, including the provisions governing the potential division of Texas territory: “No further legislative action by Congress is necessary for Texas constitutionally to have permission to become five Texas Tots. There may be details to work out — t’s to cross and i’s to dot. But the constitutionally necessary consent was given long ago, remains in effect today, and has not been superseded or impliedly repealed by any other provision of federal law.”

Even according to Paulsen, the U.S. Congress could withdraw its consent to Texas divisionism, if Texans were ever to take up the matter. He told Gladwell, “Texas has to get its act together quicker than Congress can get it’s act together to say ‘no.’”

Paulsen acknowledged that the idea is pretty far-fetched: “I’ve never seen anything that suggested anybody is remotely interested in this.” Erick Trickey, a writer for Smithsonian Magazine, commented in an article last year, “It’s… a peculiar part of Texas’ identity as a state so big, it could split itself up—even though it loves its own bigness too much to do it.”