JD Vance is a Yale Law graduate. He’s Vice President of the United States, serving under a party that built its entire modern identity on one constitutional idea: states’ rights. And on January 8th, 2026, one day after a federal agent shot and killed an American citizen named Renee Good during an immigration raid in Minneapolis, Vance went on national television and declared that those agents are “protected by absolute immunity” from state prosecution. (A second American citizen, Alex Pretti, would be killed by federal agents in Minneapolis just two weeks later.)

You read that correctly. 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. Sacred text of conservative constitutionalism for half a century. In 2026 everyone is speaking the other side’s lines, and nobody seems to notice (or care).

What you’re witnessing is technically hypocrisy, but it’s very old with deep roots in American history.

Nobody Believes in a Parking Spot

Federalism is not a deeply-held constitutional philosophy for either political party. Instead, think of it like 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’s 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 suddenly discovers the beauty of state sovereignty. Every time. Without fail. For 230 years.

It’s not a new phenomenon. Legal scholar Jessica Bulman-Pozen documented the pattern in the Harvard Law Review back in 2014, calling it “partisan federalism.” That’s the idea that states primarily check federal power through partisan opposition that’s couched in constitutional principles. Americans are “particularly likely to identify with states when they are controlled by the party out of power in Washington.” So for most people, federalism is a pretty philosophy, maybe. But mostly it’s a faction.

The polling is brutal. On requiring local governments to cooperate with ICE: 85% of Republicans favor it. 83% of Democrats oppose it. Near-perfect partisan symmetry, perfectly inverted. Almost zero overlap. That’s a Fox News poll, by the way. With positions that mirror each other that cleanly, what you’re seeing is more akin to tribalism than deeply held constitutional convictions.

Carnegie Endowment’s Mariano-Florentino Cuellar, a former California Supreme Court justice, put it plainly: “The script has flipped 180 degrees.”

But this isn’t some new 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. That’s it. That’s the origin story. Not high constitutional theory. Just political warfare.

Then the antebellum South demanded states’ rights for themselves while simultaneously demanding that Northern states enforce the Fugitive Slave Act of 1850. Yes, 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. These laws were the direct structural ancestor of modern sanctuary policies. I want to be clear here: protecting people 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 only cares about power.

Fast forward. 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 shoved state sovereignty down every American’s throat. Texas AG Greg Abbott’s office filed over 30 lawsuits against the federal government on everything from the ACA to environmental regulations to gun rules. The Tenth Amendment had never been so popular.

Now? Same party, absolute federal supremacy on immigration. Did the amendment change? Nope…just the power dynamics.

But Immigration Really Is Different…Until It Isn’t

I’ve been able to find one genuinely strong objection to the parking spot thesis.

Immigration is constitutionally different from most policy areas. The plenary power doctrine recognizes that Congress has “plenary and unqualified power” over immigration. This doctrine has nearly 140 years of continuous Supreme Court precedent, going back to the Chinese Exclusion Case of 1889. It touches national sovereignty, foreign relations, and border security all at once. A Republican who championed states’ rights on health care and now champions federal supremacy on immigration might be drawing a constitutionally defensible line: health care regulation isn’t an exclusive federal power; immigration arguably is.

But this argument quickly breaks down in practice.

Plenary power supports federal authority over immigration policy: who can enter, who can stay, the terms of legal status. It absolutely does not create “absolute immunity” for federal agents who kill American citizens on American soil. Legal scholar Michael Mannheimer, writing on the Volokh Conspiracy (a libertarian legal blog, 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.

But what really kills the “immigration is special defense” is that if the argument actually 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. Again, 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 resist federal pressure on his state for as long as he had breath.

The immigration defense is strongest when confined to immigration. If 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. Scholars spend their careers exploring federalism. There are different clauses, different allocations, different domains. But that complexity is precisely the camouflage. Politicians love to hide their inconsistencies in the weeds. The parking spot metaphor is just meant to strip the weeds away and make it a little easier to understand.

The Only Question That Matters

The value of naming this pattern isn’t “look at these hypocrites.” Democrats did the same exact thing when they held federal power and fought state resistance to the ACA tooth and nail. The parking spot isn’t a partisan indictment.

But I want to flag something the structural analysis alone can miss.

While the mechanism itself is bipartisan, the current application involves federal agents killing American citizens and a Vice President claiming absolute immunity from state prosecution.

So while the pattern itself may be symmetrical and bipartisan, the stakes — especially 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 hold the same position if the other party controlled Washington? For most political actors, across 230 years of American history, the answer to this question has been no. So if the answer is no, you’re watching someone park.

If federalism has always been used a weapon, can it be made into something more? Or is the honest answer that the Constitution’s most celebrated structural feature has just been a convenient fiction from the very 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 popularized the term “fair-weather federalism” to shame his own side. These people are real. They exist. And the problem is that they’re consistently outvoted, overruled, and abandoned by their own parties the moment federal power is at stake.

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.

The next time someone tells you they believe in states’ rights or federal supremacy, you’ll know exactly which questions to ask.

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