For years the Republicans have been champions of Federalism and the Democrats have been trying to have the Federal Government bring the States into national conformity. Now that Republicans control Congress and judicial nominees, we are likely to see those who favor and oppose Federalism switch sides.

The Republicans seem to be more aggressive at consolidating their new found power than Democrats are in holding onto theirs. For example, ramming through redistricting off cycle in Texas. Another example is the threat of the “Nuclear Option” underscores that collegiality and continuity are not more important to the current Republican leadership than partisan interests.

The Supreme Court is also moving in that direction and will do so decisively once there are a few more Republican appointees on the Court. Conditional federal spending like the No Child Left Behind Act largely invalidate any state independence of the sort granted in Lopez which lined out criminal, education and family law as provinces of the States. (I am surprised that no state has made it a felony to be a three-term Senator. That would test whether criminal law really is something a state can do and potentially allow term limits for federal officials to move forward.)

As red state policy becomes federal law, it will be more and more difficult for blue states to maintain their independent policies. There is a narrow window while Republican legislators and the Republican judiciary has not fully internalized the polarity switch. During this time, Democrats can try to cement Federalism before Republicans realize they no longer need this issue.

My guess is that the time for Federalism has passed and that Democrats will convert to Federalism more slowly than Republicans convert away from it. I look forward to reading how the Supreme Court Justices and some of the more self-important partisan publications will justify their newly-found interests in the opposite sides of the Federalism debate.