The real shadow government: How unelected bureaucrats have been calling the shots
Here’s a scary prospect: an unelected shadow government operating beyond the limits of the Constitution and the separation of powers, and doing so with no accountability.
Many are portraying President Trump’s Department of Government Efficiency, or DOGE, this way. Tasked with modernizing technology, increasing efficiency, and rooting out waste, fraud, and abuse throughout the executive branch, the Elon Musk-led team has even been accused of “conducting a hostile takeover of the federal government.”
The truth is that all these characterizations just as accurately, if not more accurately, describe the unelected bureaucrats running the administrative state.
For decades, the Constitution’s limited government of enumerated and separated powers has been undermined by a bloated bureaucracy that rules over practically every aspect of Americans’ lives with impunity.
But the same people maligning DOGE for operating outside the three branches of government with little accountability have rarely, if ever, applied the same standards to this federal Leviathan. Not a peep about what has become an unconstitutional fourth branch of government filled with career bureaucrats that write rules with the force of law, enforce those same rules against individuals, interpret the provisions of those rules however they see fit, and often try defendants in house for violating those rules.
Don’t believe me? Research from Pacific Legal Foundation (PLF) pulls back the curtain.
Of the nearly 3,000 rules issued by the Department of Health and Human Services (HHS) from 2001 through 2017, 71% were finalized and issued by low-level officials or career employees who had no constitutional authority to do so, according to one PLF study. About 90% of these unconstitutional rules came from the Food and Drug Administration (FDA) alone, as almost all FDA rules (98%) during that time were issued by unaccountable bureaucrats in the agency.
And before you think that these unconstitutional rules must have been minor or without much noticeable impact, 93% of all substantive and significant HHS rules—deemed so by the Office of Management and Budget—were unconstitutional FDA regulations. Twenty-five of them had an impact on the economy of over $100 million each.
But this is far from just an HHS problem. The entire U.S. fishery industry is regulated by a group of regional fishery management councils that operate with little to no accountability or oversight. Another PLF study found that these councils have issued over 5,000 rules in their history, including many significant regulatory actions, despite their members being nominated by state governors, not the president, and hardly ever receiving pushback from a presidentially appointed official.
The Secretary of Commerce can disapprove council rules only if they are unlawful, not for policy disagreements. The Freedom of Information Act responses identified only six rules that have ever been disapproved in whole or in part by the secretary. And the secretary can reject governors’ nominees to these councils only if they’re not qualified, rather than for political reasons. Between 2015 and 2024, governors submitted 287 individual slates of nominees; only eight were rejected. And 82% of the time the secretary rubberstamped whoever the governor indicated was their top choice among their three nominees.
The remaining voting members on these councils are state and federal bureaucrats with designated seats. And because none of these members can be removed for any reason other than for cause, those responsible for writing federal fishery regulations are largely immune from accountability.
Health and fishery regulation represents only a snapshot of the administrative state. Imagine what you’d find in the Departments of Agriculture, Education, Interior, and Labor, or the Environmental Protection Agency, Federal Communications Commission, and Securities and Exchange Commission.
You’d likely find that our government is run mostly by low-level career bureaucrats and less so by our elected officials and those they appoint.
At least Donald Trump campaigned on creating DOGE. Do you remember anyone campaigning on letting nameless and faceless bureaucrats in HHS and the FDA make policy decisions with no accountability to the people? Not to mention that Elon Musk and DOGE don’t seem to be hiding what they’re doing. So far, they’ve been transparent about their activities. Just look at their respective X accounts! Can we truly say the same for the federal bureaucracy? Chances are you won’t know about a federal regulation until after you’ve broken it.
This is what many have accepted as business as usual—unelected, low-level, career bureaucrats crafting rules and regulations by themselves that all of us are expected to obey.
None of this is to say that DOGE’s approach is perfectly constitutional or that DOGE’s critics are entirely wrong. Ideally, spending cuts and shutting down agencies would be in the form of bills passed by both houses of Congress and signed by the president.
But the hypocrisy of those who fail to, or choose not to, recognize that their critiques of DOGE are more appropriate critiques of federal agencies is revealing itself. They might as well be screaming, “Leave our sacred administrative state alone!”
