Quiet Secession: Constitutional Chaos by Design

How progressive state courts are attempting to fragment American commerce and override the Supremacy Clause

In my post “Quiet Quitting the Law” of yesterday (this morning on Facebook), I wrote about the danger of ignoring laws. On my run with Murph and Ellie earlier this morning, I was listening to one of my favorite podcasts, the Ruthless Variety Progrum, and their guest interview today was Bill Barr, the two time Attorney General of the United States.

Barr brought up something I missed touching on in the essay that is probably more dangerous than what I wrote about - the active side of the equation.

That active side is how when the left loses at the federal level (and if we are paying attention, they are doing a fair amount of losing these days), they retreat to sympathetic state courts, attempting to impose their policy preferences on the entire nation through litigation that directly contradicts the Supremacy Clause.

The Colorado climate cases against energy companies exemplify this constitutional crisis. State courts are being asked to hold oil and gas companies liable for global warming under state tort law—effectively using local statutes to regulate a phenomenon that is inherently national and international in scope. This seeks to establish national energy and climate policy through state courts, bypassing federal authority over interstate commerce and foreign affairs.

These cases seek to punish companies for producing legal products sold and consumed nationwide and globally, using one state’s police powers to dictate terms affecting the entire national economy. If successful, this would fragment American commerce into fifty different regulatory regimes, each imposing its own vision of national policy through tort liability rather than proper federal channels.

This represents a fundamental rejection of our constitutional structure. The Framers established federal supremacy in areas of national concern precisely to prevent this chaos. They understood that matters involving interstate commerce, foreign relations, and nationwide impacts could not be left to individual states without destroying the Union.

The Supreme Court has consistently held that states cannot regulate extraterritorially or establish policy for conduct beyond their borders. Yet these climate cases attempt exactly that, seeking to hold companies liable for cumulative global effects of fossil fuel production, demanding remedies that would affect energy policy nationwide and worldwide. A Colorado verdict would impose Colorado’s climate preferences on Texas, Wyoming, Pennsylvania, and every other energy-producing state.

What makes this particularly dangerous is the Supreme Court’s glacial pace. The Court may take years to resolve these constitutional questions while real damage accumulates. Companies face massive legal costs and potential liability. Investment in domestic energy becomes clouded with uncertainty. Other states file their own suits. The constitutional violation metastasizes while the Court slowly deliberates.

This creates perverse incentives. Political movements that lose in Congress can forum-shop for friendly state courts. Even if they ultimately lose at the Supreme Court, they’ve achieved years of harassment, imposed enormous costs, and created enough uncertainty to influence behavior. The process becomes the punishment, and the constitutional violation serves its purpose even when eventually reversed.

The broader implications are staggering. If states can use tort law to impose national policy on climate, what prevents them from doing the same on firearms, abortion, immigration, or any other contentious issue? We could see red states attempting to hold social media companies liable for “censorship” affecting their citizens, or blue states suing manufacturers of products they disfavor but which are legal under federal law. The result would be legal chaos, with companies facing contradictory demands from different jurisdictions and no clear federal policy to guide their conduct.

I firmly believe in federalism - but this isn’t federalism; this is constitutional vandalism. True federalism respects the boundaries between state and federal authority, recognizing that states have broad powers within their borders but cannot project those powers beyond their boundaries or into areas reserved to federal authority. What we’re witnessing instead is an attempt to use federalism as a weapon, exploiting state sovereignty to undermine national cohesion.

The Supreme Court must act, and it must act decisively and quickly. The Court needs to clearly reaffirm that states cannot use their courts to regulate national and international phenomena, cannot impose liability based on extraterritorial conduct, and cannot use tort law as a substitute for the policy-making authority properly belonging to the federal government. The Supremacy Clause isn’t a suggestion; it’s a foundational principle that holds our constitutional order together.

The alternative is a descent into legal balkanization where the United States exists only nominally, while fifty semi-sovereign states wage legal warfare against each other through proxy battles in their respective courts. That way lies not justice, but chaos.