A shadow government Is rising — how far will it go?
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The Trump administration’s extra-legal creation of a Department of Government Efficiency effectively establishes a shadow government — a concept Trump has long criticized.
The unilateral dismantling of agencies like the Department of Education (DOE), led by unvetted civilians with unrestricted access to sensitive government systems, not only poses a serious national security threat but also raises significant constitutional issues.
While this presents as a clear case of executive overreach, the situation is more complex, owing to shifting dynamics in the separation of powers that have arisen from the Federalist Society-engineered Supreme Court under Chief Justice John Roberts — which has consistently deferred to executive authority throughout Donald Trump’s tenure.
The Trump administration has a history of manipulating congressionally allocated spending, such as funding the border wall and withholding Ukraine aid. But the current situation is unprecedented. It poses a direct threat to the very foundation of American democracy.
Unchecked executive power carries far-reaching consequences that cannot be overlooked.
The analysis below identifies eight ongoing court cases, four critical constitutional violations, and eight statutory violations. It also uncovers the erosion of the separation of powers and checks and balances in today’s hyperbolic political climate. The stakes are higher than ever — our constitutional order is at risk, and urgent action is needed.
The Separation of Powers and Checks & Balances
The three branches of government and the system of checks and balances are the foundational principles in the US Constitution, essential for preventing any single branch from becoming too powerful:
- Legislative Branch: Article I, Sections 1 and 8 grant Congress exclusive authority to create, dissolve, and allocate agency funds, and pass laws.
- Executive Branch: Article II, Section 3 mandates that the president enforce existing laws. Executive orders do not have the constitutional authority to independently create, dissolve, or alter funding of agencies. All proposed agency changes require congressional approval.
- Judicial Branch: The federal courts have been accepted as the principal interpreters of the Constitution as well as statutes for over two centuries. However, some courts now interpret laws through the lens of Leonard Leo’s far-right ideology, raising concerns over the erosion of constitutional principles, as executive power continues to be elevated.
- Appropriations Clause: Article I, Section 9, Clause 7 gives Congress the sole power of appropriation of funds.
- Antideficiency Act: Prevents agencies from exceeding or misdirecting appropriated funds.
- Impoundment Control Act: Restricts the president from withholding or impounding funds allocated by Congress.
Executive Order Constitutional Violations
The Trump administration’s attempts to shut down the Department of Education, or any agency, without Congress’s approval violate the Constitution and several critical laws:
- Violation of Separation of Powers — Eliminating an agency without congressional involvement infringes on Congress’s constitutional role in creating and dismantling agencies, violating the separation of powers.
- Violation of the Antideficiency Act (31 U.S.C. § 1341 et seq.) — Preventing the Department of Education from using appropriated funds is prohibited by this act. Funds can only be spent as allocated by Congress, and reallocation or elimination without congressional approval is illegal.
- Unlawful Interference with Congressional Powers — The executive branch cannot unilaterally shut down an agency, as this would interfere with Congress’s exclusive authority over federal funding and agency existence.
- Failure to Follow Congressional Appropriations — Efforts to eliminate a federal agency disregards congressional appropriations, as the executive branch cannot cancel or redirect funds without approval.
Legal Challenges to Executive Overreach
This series of initial court cases centers on the Trump administration’s efforts to dismantle federal agencies and gain unauthorized access to confidential databases.
- Judge George O’Toole (US District Court for Massachusetts — appointed by Bush).
The judge just declined to block the Trump administration’s offer for federal employees to resign. This decision has profound implications for government operations and the future of the federal workforce. - Labor Union and the American Foreign Service Association v. Trump (DC District Court)
This case challenges Trump’s attempt to shutter USAID by slashing staff and halting aid, arguing that it is unconstitutional for the president to eliminate a federal agency approved by Congress. - Judge Colleen Kollar-Kotelly (DC District Court — Clinton).
In response to union lawsuits, the judge limited Musk’s Department of Government Efficiency access to the Treasury’s payment system, allowing only two DOGE staffers “read-only” access. While some GOP figures have criticized the ruling and called for Kollar-Kotelly’s impeachment, no formal actions have been taken. This case has become a key test of executive power and government reform efforts. - Judge Deborah L. Boardman (US District Court for Maryland — Biden).
The judge blocked Trump’s policy rescinding birthright citizenship, in response to a lawsuit brought by nonprofits representing undocumented pregnant women. - Judge Royce C. Lamberth (DC District Court — Reagan).
The judge paused enforcing Trump’s anti-trans prison policies. - Judge Loren L. Alikhan (DC District Court — Biden).
The judge blocked the Trump administration’s federal funding freeze for all federal assistance while litigation moves forward. - Judge John J. McConnell Jr. (US District Court for Rhode Island — Obama)
The judge ruled that the Trump administration cannot withhold funding from the 22 Democratic-led states that sued to block the funding freeze. - National Security Counselors v. Trump (D.C. District Court)
The first lawsuit filed against Trump’s administration, arguing that DOGE should be classified as a federal advisory board that follows public transparency rules.
Unconstitutional Agency Creation
Pre-Federalist Society (1982), Musk’s ersatz DOGE “department” would have been seen as blatant executive overreach. Without congressional approval, it violates constitutional provisions that reserve to Congress the exclusive authority to create, dissolve, and control funding for agencies.
Executive orders cannot unilaterally grant individuals, like Musk, access to government systems.
Never before has an executive order granted such sweeping powers to an unvetted civilian or created an agency like DOGE.
Legal Violations and Consequences
In defiance of repeated warnings about their lack of legal authorization, Musk and his school of inexperienced interns unlawfully accessed multiple agency databases.
If these actions were undertaken at the direction of the Trump administration or at Trump’s personal request, it places Musk, his interns, and even the president in significant legal jeopardy, both civil and criminal. Legislators are acutely aware of these violations, which include breaches of:
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- Prohibits unauthorized access to government computers and systems.
- Penalties: Civil penalties, criminal fines, up to 20 years imprisonment.
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- Protects personal information held by federal agencies.
- Penalties: Civil penalties, criminal fines, imprisonment.
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- Criminalizes altering or removing government records.
- Penalties: Fines, imprisonment (up to 3 years).
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- Prohibits unauthorized entry into government buildings.
- Penalties: Imprisonment (up to 5 years for serious cases).
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- Governs the handling and protection of federal records.
- Penalties: Criminal penalties, fines, possible jail time.
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- Interception of electronic communications.
- Penalties: Significant criminal penalties, imprisonment, civil actions.
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- Penalizes making false statements to authorities about data access.
- Penalties: Fines, up to 5 years imprisonment.
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- Unauthorized access to classified or sensitive national security data.
- Penalties: Up to life imprisonment.
Summary
The Trump administration’s unlawful actions — granting unauthorized access to sensitive data and unilaterally altering or cutting funding for agencies like the DOE, USAID, the Consumer Protection Agency, the IRS, the Pentagon, and the semi-independent Federal Reserve — violate the US Constitution and undermine the separation of powers.
The Supreme Court’s rulings in Train v. City of New York (1975) and Clinton v. City of New York (1998) struck down the Line Item Veto Act, reinforcing the principle that the president cannot unilaterally alter or withhold appropriated funds, a principle further supported by the Antideficiency Act, which ensures that federal agencies adhere to congressional appropriations.
Since the early 1900s, America’s political system has been defined by the conflict between corporate interests per se — which value power, wealth, and stability over democracy — and the will to power of a lurking oligarchy, which places power and wealth above both stability and democracy. In 2024, the oligarchs triumphed.
If history is any guide, without accountability, Trump and his little army of Elon Muskivites will continue their destructive march with impunity, wielding their propaganda machine to relentlessly undermine American democracy at every turn.
