The Parking Spot: How Federalism Became America's Oldest Political Weapon

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• Target length: ~1,500 words
• Word count: ~1,580 words
• Date: 2026-02-13

JD Vance is a Yale Law graduate. He serves as Vice President of the United States under the banner of a party that built its modern identity on a single constitutional idea: states' rights. And on January 8th, 2026 -- days after federal agents shot and killed two American citizens in Minneapolis during immigration raids -- Vance went on national television and declared that those agents are "protected by absolute immunity" from state prosecution.

Read that again. The states' rights party's second-in-command just told the states to sit down and shut up.

Meanwhile, Minnesota Attorney General Keith Ellison -- a Democrat, from the party that spent most of the last century championing federal power -- filed a lawsuit invoking the Tenth Amendment. The Tenth Amendment. The amendment that has been the sacred text of conservative constitutionalism for fifty years. Everyone is speaking the other side's lines, and nobody seems to notice -- or care.

What you're watching is not hypocrisy. It's something older, more structural, and far more useful to understand.

Nobody Believes in a Parking Spot

Here's the framework: Federalism is not a constitutional philosophy. It's a parking spot.

You occupy it when you need it. You vacate it when you don't. Nobody defends a parking spot on principle. You defend it because your car is there. Drive away, and you couldn't care less who takes it next.

That's the Tenth Amendment. It is the constitutional argument of whoever doesn't control Washington, and the constitutional inconvenience of whoever does. Whoever holds federal power discovers the necessity of federal supremacy. Whoever lacks it discovers the beauty of state sovereignty.

This isn't a novel observation. Legal scholar Jessica Bulman-Pozen documented the pattern in the Harvard Law Review back in 2014, calling it "partisan federalism" -- the idea that states check federal power primarily through partisan opposition dressed in constitutional clothing. Americans are "particularly likely to identify with states when they are controlled by the party out of power in Washington." It's not federalism as philosophy. It's federalism as faction.

The polling bears it out with brutal clarity. On requiring local governments to cooperate with ICE: 85% of Republicans favor it. 83% of Democrats oppose it. Near-perfect partisan symmetry, perfectly inverted in direction, almost entirely devoid of overlap. That's a Fox News poll, by the way -- not some left-leaning outlet. When the positions are that cleanly mirrored, you're not looking at constitutional conviction. You're looking at tribal loyalty with constitutional trim.

As the Carnegie Endowment's Mariano-Florentino Cuellar -- a former California Supreme Court justice and now president of one of the most credible governance institutions in America -- put it: "The script has flipped 180 degrees."

But this isn't a 2025 invention. The parking spot has been there for 230 years.

The 230-Year Hustle

Jefferson and Madison invented states' rights as the weapon of the opposition party -- the Kentucky and Virginia Resolutions of 1798 were literally written to resist a federal government controlled by the other team. Then the antebellum South demanded states' rights for themselves while simultaneously demanding that Northern states enforce the Fugitive Slave Act of 1850. (Let that one settle: the same faction wanted state sovereignty when it served slavery and federal supremacy when state sovereignty threatened it. Sound familiar?)

Northern states responded by passing "personal liberty laws" forbidding state officials from cooperating with federal slave catchers -- the direct structural ancestor of modern sanctuary policies. I want to be clear: the moral contexts are not remotely equivalent. Protecting human beings from enslavement is not the same as any modern immigration policy. But the constitutional mechanism -- state non-cooperation with federal enforcement -- is identical. The parking spot doesn't care about morality. It cares about power.

Eisenhower, a Republican, sent the 101st Airborne to override Southern state resistance at Little Rock -- federal supremacy asserted by the "small government" party. Under Obama, Republican attorneys general sued the federal government on Tenth Amendment grounds over the ACA, environmental regulations, and gun rules. Texas AG Greg Abbott's office essentially existed to file federal lawsuits.

Now? The same party asserts absolute federal supremacy on immigration. The amendment didn't change. The power dynamics did. The parking spot changed hands.

But Immigration Really Is Different -- Until It Isn't

There is, however, one genuinely strong objection to the parking spot thesis, and I want to give it real air.

Immigration is constitutionally different from most policy areas. The plenary power doctrine -- 135 years of continuous Supreme Court precedent, originating in the Chinese Exclusion Case of 1889 -- recognizes that Congress has "plenary and unqualified power" over immigration. It touches national sovereignty, foreign relations, and border security simultaneously. A Republican who championed states' rights on health care and now champions federal supremacy on immigration may be drawing a constitutionally defensible distinction: health care regulation is not an exclusive federal power; immigration arguably is.

This is real. I'm not going to wave it away.

But here's where it breaks down: plenary power supports federal authority over immigration policy -- who can enter, who can stay, the terms of legal status. It does not create "absolute immunity" for federal agents who kill American citizens. Reason magazine's Volokh Conspiracy -- a libertarian legal outlet, not a progressive one -- called Vance's claim "absolutely ridiculous." The legal consensus against him crosses every ideological line there is. Plenary power also doesn't override the anti-commandeering doctrine that protects states from being conscripted into federal enforcement. And it doesn't authorize punishing resistant states by withholding unrelated federal funding.

Most importantly: if the "immigration is constitutionally different" argument explained the current posture, Republicans would be confining their federal supremacy claims to immigration. They are not. The SAVE Act, passed by the House on a party-line vote, would require states to submit their voter rolls to DHS for vetting -- federal mandates on state election administration, from the party of "states run their own elections." When Trump pushed Indiana to gerrymander its congressional maps, 21 Republicans in the state Senate defied him, voting 31-19 against the plan. State Senator Spencer Deery -- a Republican -- vowed to fight federal "bullying" of his state "with his last breath."

The immigration defense is strongest when confined to immigration. The moment you widen the lens, it collapses -- because the same politicians making the constitutional distinction aren't confining themselves to it. They're asserting federal supremacy across the board. Which is exactly what the parking spot thesis predicts.

I'm going to editorialize for a moment: I know the parking spot metaphor is deliberately reductive. Constitutional federalism is genuinely complex -- different clauses create different allocations of power across different domains. But that complexity is precisely what lets politicians hide their inconsistencies. Compression isn't a bug here. It's the point.

The Bigger Picture

The value of naming this pattern isn't "look at these hypocrites." Democrats did the same thing when they held federal power and fought state resistance to the ACA tooth and nail. The parking spot isn't a partisan indictment. It's a structural description.

But I do want to flag something the structural analysis alone can miss: while the mechanism is bipartisan, the current application involves federal agents killing American citizens and a Vice President claiming absolute immunity from state prosecution. The pattern is symmetrical. The stakes, right now, are not.

The next time any politician invokes "states' rights" or "federal supremacy," the question is no longer "is this constitutionally correct?" The question is: Would this person's position change if the other party controlled Washington? If the answer is yes -- and for most political actors, across 230 years of American history, the answer has been yes -- then you're not witnessing a constitutional argument. You're watching someone park.

Once You See It

If federalism has always been a weapon, can it be made into something more? Or is the honest answer that the Constitution's most celebrated structural feature has been a convenient fiction from the start?

I think the honest answer is uncomfortable but not hopeless. Principled federalists do exist. Spencer Deery fought his own president on it. Ilya Somin at George Mason has criticized federal overreach under both parties for decades. Randy Barnett coined the term "fair-weather federalism" to shame his own side. These people are real. The problem is that they are consistently outvoted, overruled, and abandoned by their own parties the moment federal power is at stake.

The principle isn't dead. It's outnumbered.

Naming the parking spot dynamic honestly won't make it disappear. But it is the precondition for changing it -- because you can't hold politicians accountable for inconsistency they've convinced you doesn't exist. Once you see the parking spot, you can't unsee it. And the next time someone tells you they believe in states' rights or federal supremacy, you'll know exactly which question to ask.

That's the beginning of holding them accountable. And maybe -- maybe -- of holding the principle itself to a higher standard than anyone in 230 years has managed.

Writer's Notes

• Word count came in at approximately 1,580 -- slightly over the 1,500 target but within reasonable range. Every paragraph is load-bearing; trimming further risks losing the steelman section's credibility or the historical sweep's compression.
• Steelman section is the longest by design -- the outline and steelman analysis both identified it as the article's credibility center, especially for center-right readers. The "Now explain the SAVE Act" pivot is the key move.
• Fugitive Slave Act analogy includes the explicit moral-non-equivalence disclaimer as recommended by both the steelman and outline's architecture notes. Deployed for structural parallel only.
• The editorializing beat ("I'm going to editorialize for a moment") is placed in the steelman section rather than the close, following the outline's suggestion to turn the metaphor's reductiveness into a feature.
• Personal voice is lighter than some corpus pieces -- this article is more analytical than personal, and the thesis doesn't naturally invite personal experience. The "I'm not going to wave it away" and "I'm going to editorialize" beats provide the transparency markers the voice guide calls for without forcing autobiography.
• Cuellar quotes are drawn from the source summary rather than direct article quotation -- the original Carnegie piece should be reviewed for fuller attribution during editing.
• The "Party of Reagan is Dead" corpus piece covers closely adjacent territory (the federalism reversal). This draft differentiates by focusing on the structural pattern across all eras rather than the specific Republican ideological collapse, and by introducing the parking spot framework as a new explanatory lens.
• Hope in the close is deliberately thin -- the outline warned against overselling it, and the voice guide says hope must be "earned by the analysis, not tacked on." The Deery/Somin/Barnett thread provides just enough to avoid ending on pure cynicism.