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

Draft Complete — Pending Author Review

Thesis

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thesis.md

Article Thesis

Working Title

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

Subtitle

The party of "states' rights" now demands federal supremacy. The party of federal power is invoking the Tenth Amendment. Neither side is being hypocritical -- they're both playing the game exactly as it's always been played.

Thesis

American federalism has never been a constitutional principle held consistently by any political faction. It is a parking spot -- the constitutional argument of whoever doesn't control Washington. The Trump administration's immigration enforcement has produced the most vivid demonstration of this in sixty years: Republicans asserting absolute federal supremacy while Democrats cite the Tenth Amendment, each side deploying the other's sacred constitutional language without a trace of irony. Once you see federalism as a structural weapon rather than a philosophical commitment, the entire 230-year pattern snaps into focus -- and so does the only honest path forward.

The Framework

Federalism as parking spot. The conceptual engine of this article is the reframing of federalism from a constitutional philosophy to a constitutional position -- one that is determined not by principle but by power. Whoever holds federal power discovers the necessity of federal supremacy. Whoever lacks it discovers the beauty of state sovereignty. This isn't a bug in the American system; it's a feature that has operated continuously since Jefferson's Kentucky Resolutions in 1798.

The "parking spot" metaphor does specific mechanical work: a parking spot is something you occupy when you need it and vacate when you don't. Nobody believes in a parking spot. You don't defend it on principle -- you defend it because your car is there. When you drive away, you couldn't care less who takes it next. That's American federalism. The Tenth Amendment is not a creed. It's a space you occupy when the federal government is controlled by the other team, and you abandon the moment you take the wheel in Washington. The framework explains not just the current reversal but the entire historical pattern -- from the Fugitive Slave Act (the South demanding Northern states enforce federal slavery law) to Little Rock (the federal government overriding Southern state resistance) to Obama-era Republican AGs suing the federal government on Tenth Amendment grounds to today's mirror image.

Why This Matters Now

Two American citizens are dead in Minneapolis, shot by federal agents conducting immigration operations. The Vice President -- a Yale Law graduate from the "states' rights" party -- has claimed those agents have "absolute immunity" from state prosecution, a legal position so expansive that even libertarian lawyers at Reason magazine call it "absolutely ridiculous." Meanwhile, blue-state attorneys general are filing lawsuits citing the Tenth Amendment, blue states are passing "safe zone" legislation that structurally mirrors the antebellum North's "personal liberty laws," and red states are mandating local cooperation with federal immigration enforcement in ways that eliminate the local discretion Republicans have championed for decades.

The reversal is happening at scale. Twelve-plus states are legislating limits on ICE cooperation. Red states are converting voluntary federal partnership programs into mandatory state directives. And polling shows a near-perfect partisan mirror: 85% of Republicans favor mandatory local-federal cooperation on immigration; 83% of Democrats oppose it. The positions are identical in intensity, perfectly inverted in direction, and almost entirely devoid of overlap.

This isn't just immigration. 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." The pattern is reaching a critical mass that makes the structural truth impossible to ignore: nobody holds federalism as a principle. And the sooner we name that honestly, the sooner we can stop pretending the argument is about the Constitution and start having the real argument -- which is about power, and who gets to wield it.

The Hook

Open with JD Vance's "absolute immunity" claim. A Yale Law-trained Vice President, from the political party that built its modern identity on "states' rights," asserting that federal agents have absolute immunity from state criminal prosecution -- a claim rejected across the entire ideological spectrum, from progressive constitutional scholars to the libertarian Volokh Conspiracy. The hook is the dissonance: the words coming out of his mouth are the opposite of what that party has said for fifty years. And the punchline is that he's not being hypocritical. He's doing exactly what every faction in American history has done the moment it captured federal power. He vacated the parking spot.

Key Evidence & Sources

  • VP Vance's "absolute immunity" claim and the universal expert rejection of it, including Reason/Volokh Conspiracy calling it "absolutely ridiculous" -- the single most vivid example of the reversal (source-02)
  • The 85%/83% polling mirror on mandatory local ICE cooperation -- near-perfect partisan symmetry proving the positions are tribal, not principled (source-10, Fox News Poll)
  • Indiana Senate 31-19 vote rejecting Trump's redistricting push, with 21 Republicans defying their own President on federalism grounds and Sen. Deery vowing to fight federal "bullying" of his state "with his last breath" -- cross-partisan proof the thesis is structural (source-05)
  • Minnesota AG Ellison's Tenth Amendment lawsuit -- a blue-state official invoking the amendment that has been the cornerstone of conservative constitutional argument for decades (source-08)
  • Carnegie Endowment's Cuellar: "The script has flipped 180 degrees" with explicit Civil Rights era comparison -- independent validation from one of the most credible governance voices in America (source-04)
  • Bulman-Pozen's "partisan federalism" framework (Harvard Law Review, 2014) -- academic proof that federalism has always functioned as partisan opposition channeled through constitutional structure (source-09)
  • The Fugitive Slave Act of 1850 and Northern "personal liberty laws" -- the direct historical ancestor of today's sanctuary policies, where Northern states forbade state officials from cooperating with federal slave catchers, using the same non-cooperation mechanism blue states deploy today
  • Prison Policy Initiative data: 52% of ICE arrests occur through jail transfers, and in non-cooperating states like Massachusetts, 94% of arrests require resource-intensive community operations -- proof that state non-cooperation is not symbolic but materially constrains federal power (source-13)

Argument Arc (Brief)

Open with the dissonance -- Vance's claim, the absurdity of the "states' rights" party asserting absolute federal supremacy. Make the reader feel the cognitive whiplash.

Zoom out to the pattern -- It's not just Vance. Blue states are passing safe zone laws and citing the Tenth Amendment. Red states are mandating federal cooperation and eliminating local discretion. The entire political landscape has rotated 180 degrees on federalism.

Introduce the framework -- "Federalism isn't a philosophy. It's a parking spot." Name the structural dynamic explicitly. Cite Bulman-Pozen's academic framework but translate it into plain language.

The historical sweep -- This has been happening for 230 years. Jefferson and Madison invented states' rights as the weapon of the opposition party. The antebellum South demanded both states' rights for themselves and federal enforcement of the Fugitive Slave Act on Northern states. Eisenhower sent the 101st Airborne to override state resistance at Little Rock. Republican AGs under Obama sued the federal government on Tenth Amendment grounds. Each era: whoever lacks federal power finds constitutional virtue in state sovereignty.

The steelman -- Immigration really is constitutionally federal in a way most policy isn't. The plenary power doctrine is real. There's a genuine legal distinction between non-cooperation and obstruction. Acknowledge this honestly. Then show that the administration's application -- absolute immunity claims, commandeering state resources, retaliating against resistant states -- goes far beyond what even plenary power supports.

Land on the structural insight and agency -- The value isn't "Republicans are hypocrites." Democrats did the same thing under Obama. The value is naming the game: federalism is, and has always been, the constitutional weapon of whoever is out of power. Once you see it, you can't unsee it. And naming it honestly is the first step toward deciding whether we want federalism to actually mean something -- or whether we're content to keep playing musical chairs with the Constitution.

The "So What?"

The reader should walk away understanding that the federalism debate is not a debate about the Constitution -- it's a debate about power disguised as constitutional argument. Both parties deploy federalism when it serves them and abandon it when it doesn't, and they have done so for the entirety of American history. The current moment doesn't reveal hypocrisy; it reveals a structural feature of the American system that has been operating in plain sight since 1798.

This matters because it changes how you evaluate every future federalism argument. The next time a politician invokes "states' rights" or "federal supremacy," the reader should ask not "is this constitutionally correct?" but "does this person's position change depending on who controls Washington?" The framework is a permanent lens.

It also matters because it raises a genuinely uncomfortable question: if federalism is just a weapon, can it be made into something more? Or is the honest answer that the Constitution's most celebrated structural feature has always been, and will always be, a convenient fiction?

Potential Pitfalls

  • "Both sides" trap. The structural argument (everyone does it) could read as false equivalence. The article must acknowledge that while the pattern is bipartisan, the current application -- federal agents killing American citizens, the VP claiming absolute immunity, punitive enforcement targeting politically hostile states -- represents a qualitative escalation. The mechanism is the same; the stakes are not.
  • Smugness. "Look at these hypocrites" is the easiest and worst version of this article. The tone must be structural analysis, not partisan dunking. The insight is about the system, not the party.
  • Over-abstraction. The historical sweep and academic framework could lose the human stakes. The Minneapolis shootings -- two American citizens dead -- are the emotional anchor that prevents the article from becoming a political science lecture. Keep returning to the concrete.
  • The plenary power counterargument is genuinely strong. Immigration is constitutionally federal. If the article waves this away, it loses credibility with the exact audience (center-right, legally literate) it most needs to reach. The steelman must be real.
  • Scope creep. The SAVE Act, Indiana redistricting, post-Roe parallels -- all support the thesis, but trying to cover all of them in 1,500 words will make the article feel like a survey course. Pick the strongest examples and let them do the work.

Research Assessment

The source material is exceptionally strong -- 15 substantive sources covering legal analysis (Lawfare, Vladeck), scholarly frameworks (Bulman-Pozen, Harvard Law Review), authoritative institutional analysis (Carnegie Endowment/Cuellar), quantitative polling data (Fox News, CNN, Marist), specific incidents (Minneapolis shootings, Indiana vote), both sides of the legislative response (blue-state sanctuary laws, red-state cooperation mandates), and historical precedent spanning 230 years. The research summary itself is analytically sharp and provides a clear evidence map.

Minor supplemental research was conducted on the Fugitive Slave Act of 1850 and Northern "personal liberty laws," which strengthened the historical parallel significantly. The direct ancestor of modern sanctuary policies -- Northern states forbidding state officials from cooperating with federal slave catchers -- provides a devastating historical compression that the article should deploy.

One area that could use deeper sourcing during the draft stage: direct quotes from conservative legal scholars making the principled case for federal supremacy on immigration (not just political talking points), to strengthen the steelman section. The Cuellar source is reconstructed from summaries rather than direct quotation, so the writer should review the original Carnegie article for fuller quotation.