Steelman Analysis
Our Thesis (Restated)
American federalism has never been a constitutional principle held consistently by any political faction -- it is a "parking spot" occupied by whoever lacks federal power and abandoned the moment they gain it, and the current immigration enforcement crisis is the most vivid demonstration of this 230-year structural pattern.
Primary Counterargument: Immigration Really Is Constitutionally Different
The single strongest argument against the "parking spot" thesis is that immigration is not like other policy areas -- it is one of the few domains where the Constitution genuinely does assign near-exclusive authority to the federal government, making the current Republican position on federal supremacy constitutionally defensible in ways the thesis systematically underweights.
The plenary power doctrine is not a recent invention or a convenient talking point. It is 135 years of continuous Supreme Court precedent, originating in the Chinese Exclusion Case (1889) and reaffirmed across every subsequent era. Congress has "plenary and unqualified power" over immigration -- the Court's own language, not a partisan gloss. Immigration touches on national sovereignty, foreign relations, and border security simultaneously, creating a constitutional cluster of federal authority that has no parallel in education, health care, environmental regulation, or most other policy domains where the federalism debate plays out. When Republicans assert federal supremacy on immigration, they are not simply "occupying the parking spot" -- they are standing on some of the most settled constitutional ground in American law.
This matters because the thesis depends on treating all federalism arguments as structurally identical -- interchangeable positions adopted for partisan convenience. But the plenary power doctrine creates a genuine asymmetry. A Republican who championed states' rights under Obama on health care and now champions federal supremacy on immigration is not necessarily being inconsistent. They may be drawing a constitutionally defensible distinction: health care regulation is not enumerated as an exclusive federal power; immigration control is. The Tenth Amendment reserves unenumerated powers to the states; immigration is arguably not among those reserved powers. A thoughtful federalist could hold both positions simultaneously without contradiction.
Furthermore, the legal distinction between non-cooperation and obstruction is real and consequential. The anti-commandeering doctrine (Printz, Murphy) means states cannot be forced to enforce federal law -- but it does not give states a right to actively interfere with federal operations. When state or local officials refuse to honor ICE detainers, that is non-cooperation and likely protected. When state officials attempt to physically block federal agents or pass laws designed to impede lawful federal enforcement actions, the constitutional calculus changes. The thesis collapses this distinction into a single "parking spot" narrative, but the law does not. Arizona v. United States (2012) -- decided under a Democratic administration -- struck down state immigration laws that conflicted with federal authority. The principle of federal supremacy in immigration has been enforced against both red and blue states.
Who Makes This Argument
This is the position of mainstream conservative legal thought -- the Federalist Society's traditional wing, scholars like John Yoo at Berkeley and the Heritage Foundation's legal team, and many federal judges appointed across both parties who have upheld plenary power. It is also the implicit position of the five Supreme Court justices who formed the majority in Arizona v. United States, including Justice Kennedy, hardly a partisan figure. Critically, it is the position that even some liberal immigration scholars acknowledge has genuine constitutional weight -- Adam Cox at NYU has written about immigration exceptionalism and its deep roots in constitutional structure, even while critiquing it. This is not a fringe argument. It is closer to the legal establishment's default position on immigration.
Why It Has Merit
Immigration genuinely is different. The Constitution's Naturalization Clause, the Commerce Clause's foreign commerce power, the war powers, the treaty power, and the inherent sovereignty doctrine all converge on immigration in a way they do not converge on most domestic policy. The Supreme Court has treated immigration as an area of reduced judicial review for over a century. This is not because the Court is captured by one party -- it is because the structural logic of a federal system gives the national government primacy over who enters and exits the nation. A federal system in which fifty states could each set their own immigration policy would be functionally incoherent. Even scholars sympathetic to state power, like Ilya Somin at George Mason, who has been a consistent and principled critic of Trump's immigration enforcement, acknowledge that the federal government's immigration authority is constitutionally grounded -- his objection is to the scope of executive power claims, not to federal primacy itself.
Where It Falls Short
The plenary power doctrine supports federal authority over immigration policy -- who can enter, who can stay, the terms of legal status. It does not support everything the current administration is claiming. It does not create "absolute immunity" for federal agents who kill American citizens, a claim rejected across the entire ideological spectrum from Lawfare to the Volokh Conspiracy. It does not override the anti-commandeering doctrine's prohibition on conscripting state resources. It does not authorize punishing states by withholding unrelated federal funding as retaliation for political resistance. And it does not explain why the same Republicans asserting federal supremacy on immigration are simultaneously pushing the SAVE Act (federal mandates on state election administration), threatening Indiana over redistricting, and conditioning Title I education funding on DEI compliance -- none of which implicate plenary immigration power.
The counterargument is strongest when confined to immigration. The moment you widen the lens to include the SAVE Act, Indiana redistricting, education funding threats, and post-Roe enforcement battles, the "immigration is constitutionally different" defense collapses -- because the same politicians making the immigration distinction are not confining themselves to immigration. They are asserting federal supremacy across the board, which is exactly what the "parking spot" thesis predicts.
Secondary Counterarguments
The "Principled Federalists Exist" Objection
The thesis claims that "nobody holds federalism as a principle." But principled federalists do exist -- and the article's own evidence proves it. Indiana's Spencer Deery, who voted against Trump's redistricting push and vowed to resist federal "bullying" of his state "with his last breath," is making a federalism argument against his own party's president. Ilya Somin has spent decades criticizing federal overreach under both Democratic and Republican administrations -- opposing the Affordable Care Act's individual mandate under Obama and opposing Trump's immigration enforcement overreach with equal vigor. Randy Barnett criticized his fellow Republicans for "fair-weather federalism" on tort reform. The Cato Institute has been broadly consistent in opposing federal power regardless of which party wields it.
These are not trivial examples. They represent a genuine intellectual tradition -- rooted in textualism, originalism, and libertarian constitutionalism -- that takes the Tenth Amendment seriously regardless of partisan advantage. By declaring that federalism is only a weapon and never a principle, the thesis erases these voices and overstates its case. A more precise claim would be that federalism is predominantly used as a partisan weapon by most political actors most of the time -- but that statement, while more accurate, is less rhetorically satisfying than "it's a parking spot."
This matters for the article's credibility with its stated secondary audience -- center-right readers uncomfortable with Trumpism. If they see the article dismissing the existence of principled federalism entirely, they may reject the entire framework, even though the structural pattern the article identifies is real. The Deery example is particularly important: it shows that federalism-as-principle and federalism-as-weapon can coexist. Some people really do believe in federalism. The fact that their party routinely abandons those beliefs when convenient does not mean the beliefs are insincere -- it may mean the party is cynical while the individuals are principled.
The "Parking Spot Metaphor Flattens Constitutional Complexity" Objection
The parking spot metaphor is vivid and memorable -- which is also its weakness. It suggests that all federalism arguments are equally empty, equally strategic, and equally interchangeable. But constitutional federalism is genuinely complex, with different clauses creating different allocations of power across different domains. The Commerce Clause creates one set of federal-state boundaries. The Spending Clause creates another. The Fourteenth Amendment's enforcement power creates yet another. Immigration, as discussed above, occupies a unique constitutional space.
By reducing this to "nobody believes in a parking spot," the article risks committing the very sin it accuses politicians of: treating federalism as a simple tool rather than engaging with its genuine constitutional architecture. The metaphor works brilliantly as polemic -- as a way to cut through sanctimonious constitutional rhetoric and expose the power dynamics underneath. But it works less well as analysis, because it cannot account for the real constitutional distinctions that make some federalism arguments stronger than others. The Fugitive Slave Act comparison is powerful, but it is not a perfect analogy: antebellum slaveholders were demanding that Northern states actively enforce federal law, which is commandeering; the current administration's core legal position (that states cannot obstruct federal operations) is a different and more defensible claim.
A constitutional law scholar reading this article might grant the political science observation -- yes, parties are inconsistent on federalism -- while objecting that the "parking spot" framework treats this inconsistency as the whole story, when in fact the constitutional text itself creates asymmetries that make some federalism positions more defensible than others, regardless of who holds them.
The "Democrats Did This Under Obama Too" Problem
The thesis explicitly acknowledges that the pattern is bipartisan -- but this creates a rhetorical trap. If the article opens with Republican reversals on federalism (Vance's absolute immunity claim, the SAVE Act, Indiana) and then says "but Democrats do it too," the audience receives this in one of two ways: (1) as a genuine both-sides argument that deflates the urgency of the current moment, or (2) as a rhetorical fig leaf that lets the author claim structural analysis while the real energy of the piece targets Republicans. Either way, the bipartisan framing is difficult to execute cleanly.
The deeper problem: the Obama-era examples of Democratic federal overreach and Republican states'-rights resistance (ACA, environmental regulation, gun control) are qualitatively different from the current situation. No one died during an ACA enrollment operation. The Obama administration did not claim its agents had "absolute immunity" from state prosecution. The scale and intensity are not equivalent, and the article's own "Potential Pitfalls" section acknowledges this. But if the scales are not equivalent, then the "parking spot" metaphor -- which implies a perfectly symmetrical, power-neutral dynamic -- is doing misleading work. The metaphor suggests pure equivalence; the facts suggest asymmetric application.
Our Weak Points
1. The thesis claims universality but relies heavily on the most extreme examples. JD Vance's "absolute immunity" claim, the Minneapolis shootings, and the SAVE Act are dramatic -- but they may represent the outer edge of the Republican position rather than its center. Many Republican voters and even some Republican officials might support federal immigration enforcement without supporting absolute immunity or punitive funding cuts. The article risks building its case on the most extreme manifestations and treating them as representative.
2. The 85%/83% polling mirror proves less than it appears. That 85% of Republicans favor mandatory local-federal cooperation and 83% of Democrats oppose it proves partisan polarization on immigration -- but it does not prove that these same people would reverse their positions if the partisan valences flipped. The "parking spot" thesis requires not just that positions are polarized, but that they would switch with a change in power. The polling data shows polarization; it does not demonstrate the switching mechanism that is the thesis's core claim. For that, you need the historical sweep -- which is strong but operates at the level of factions and parties, not individual voters.
3. The Bulman-Pozen framework is descriptively strong but normatively incomplete. Bulman-Pozen demonstrates that federalism functions as partisan opposition channeled through constitutional structure. But James Gardner's critique is worth noting: if this is true, it raises the question of whether partisan federalism is desirable -- whether states acting as branch offices of national parties, rather than autonomous political communities, undermines the genuine benefits of federalism (policy experimentation, diversity accommodation, minority protection, competitive governance). The article treats the "parking spot" dynamic as a structural revelation; an honest engagement would also ask whether this dynamic, even if accurately described, is something we should want to fix rather than simply name.
4. The article risks cynicism that undermines its own closing question. If federalism really is "just a parking spot" -- if no one has ever held it as a principle, if the Tenth Amendment is nothing but a weapon -- then the article's closing question ("can federalism be made into something more?") has an obvious answer: no. The metaphor is so effective at demolishing principled federalism that it may leave the reader with nowhere to go. The editorial guidelines require hope -- but the analytical framework may have already foreclosed it.
5. The Fugitive Slave Act analogy cuts both ways. The article uses the comparison between modern sanctuary laws and antebellum Northern "personal liberty laws" to show historical continuity. But opponents of sanctuary cities will note the obvious moral asymmetry: Northern states were protecting human beings from enslavement; modern sanctuary policies, in the conservative view, are protecting people who violated immigration law from lawful enforcement. The structural parallel is sound -- both involve states refusing to cooperate with federal enforcement -- but the moral framing is contested, and the analogy may alienate the center-right readers the article most needs to reach.
Recommended Handling
The plenary power argument must be addressed head-on and at length. This is the counterargument the article cannot wave away. The thesis itself flags this: "The plenary power counterargument is genuinely strong." The article should devote a full section -- not a passing acknowledgment -- to granting that immigration is constitutionally federal, that plenary power is real, and that the federal government does have primacy in this domain. Then it should show precisely where the administration's application exceeds what plenary power supports: absolute immunity, commandeering, punitive funding cuts, and -- most importantly -- the non-immigration examples (SAVE Act, Indiana, education funding) that reveal the pattern extends far beyond the one domain where federal supremacy is constitutionally defensible. The move is: "You're right about immigration. Now explain the SAVE Act."
The "principled federalists exist" objection should be acknowledged proactively -- ideally by citing Deery, Somin, or Barnett by name as examples of people who genuinely hold federalism as a principle. This inoculates the article against the accusation that it is creating a strawman. The concession costs nothing: "Yes, principled federalists exist. But they are consistently outvoted, overruled, and abandoned by their own parties the moment federal power is at stake. The existence of principled individuals does not change the structural pattern."
The metaphor's limitations should be briefly acknowledged. A single sentence -- something like "The metaphor is deliberately reductive, because the constitutional reality it describes has been obscured by exactly the kind of complexity that lets politicians hide their inconsistencies" -- turns the weakness into a feature. The article is not a law review article. It is a framework for citizens. The parking spot metaphor sacrifices nuance for clarity, and that trade-off should be conscious and stated.
The Fugitive Slave Act analogy should be deployed carefully. Use it for structural parallel, not moral equivalence. The point is not that sanctuary cities are morally equivalent to the Underground Railroad. The point is that the constitutional mechanism -- state non-cooperation with federal enforcement -- is identical, regardless of the moral context. Make that distinction explicit.
The closing question needs to earn its hope. The Deery example and the libertarian tradition provide a thin but genuine thread: some people really do hold federalism as a principle, and naming the structural dynamic honestly is the first step toward building a constituency that holds it consistently. The hope is not that the parking spot dynamic will disappear -- it is that naming it makes it harder to exploit uncritically.