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Abstract: An astonishing amount of government power operates in the shadows, evading scrutiny. From youth detention centers and federal immigration enforcement to local courts and public assistance offices, low-visibility institutions exert authority daily over individuals—often the most marginalized—without oversight from other governments, the media, or civil society. Despite federalism’s professed goal of protecting individuals through intergovernmental checking, prevailing federalism theory and doctrine have largely ignored these shadowed spaces.
In this Article, I argue that we must develop a federalism for the shadows: a theory and doctrine of federalism that takes as its central object the low-visibility governance that is also central to the work of government. Federalism for the shadows is guided by three ideas. First, that low-visibility government action is an important, pervasive, and unrecognized form of government power. Second, that low-visibility governance carries few of the federalism benefits we typically ascribe to state and federal power. Finally, that we should recognize the tight connection between low-visibility governance and government abuse of individuals and direct federalism’s structural safeguards to check those low-visibility spaces.
These ideas carry insights for federalism doctrines. Currently, most federalism doctrines shelter low-visibility governance from intergovernmental checking, limiting the kinds of state wrongs that may be policed. They permit the federal government to check state wrongs that are visibly widespread and caused by official state policy—characteristics rarely present in low-visibility governance. I argue that federalism doctrines should instead be responsive to institutional opacity and empower governments to intervene more robustly in opaque institutional spaces where abuse is most likely to persist.
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