Do the "Texas Tots" Still Live?

If you’re reading this blog, you probably already know that the March 1, 1845 Joint Resolution for Annexing Texas to the United States included a provision that permitted the later division of the state into a total of up to five states. Section 1 of the Joint Resolution contained Congress’s consent that the Republic of Texas could be “erected into a new State, to be called the State of Texas.

Section 2 contained three “conditions” and “guarantees” upon which Congress gave its consent. The third condition permitted the future division of the state with its consent:

Third. 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 the said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. . . .

Upon reading Let’s Mess With Texas, I immediately had one of those “Why didn’t I think of that?” moments. In their article, the authors, Vasan Kesavan and Michael Stokes Paulsen, argue that the Joint Resolution remains in effect: Texas may, at any time, reconstitute itself into five states:

We think that this “[n]ew States” language contained in the second section of the Joint Resolution of March 1, 1845, which we will refer to as the “Texas Tots provision,” 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 – a tricky mega-redistricting political problem to be sure, but probably not an impossible one. But 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But the constitutionally necessary consent [of Congress] was given long ago, remains in effect today, and has not been superseded or impliedly repealed by any other provision of federal law.

In response to a recent post, Ed Darrell was kind enough to leave a comment questioning the authors' conclusion. Ed observed:

I think most authorities hold that Texas's right, if it ever was valid, died with Texas's secession from the union. In any case, the readmission process following the Civil War did not allow for five states to be carved out of Texas.

He added further background in a post at his blog, Millard Fillmore's Bathtub.

I'm going to take another look at the article. If that doesn't address Ed's issue, I may reach out to the good professor and see whether I can get a response.