James Madison’s Warning for the Administrative State

James Madison never heard of the EPA, the SEC, or the FTC.

But as one of the Founding Fathers, he understood the danger of allowing the same institution to make rules, enforce them, and then sit in judgment over the people accused of breaking them.

In Federalist No. 47, Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands” could “justly be pronounced the very definition of tyranny.”

Madison meant it as a principle of constitutional design.

Indeed, the Constitution he helped craft divided federal authority among three branches: Congress, the president, and the courts. The branches would overlap at certain points, but none was supposed to swallow the essential functions of the others.

As Federalist No. 51 famously put it: “Ambition must be made to counteract ambition.” The Founding Fathers did not assume that public officials would always restrain themselves from seeking to expand their powers, so they built restraints into the structure of government.

But now, over 200 years later, the federal government has created institutions that blur those lines.

Modern regulatory agencies write binding regulations under laws passed by Congress. They investigate alleged violations and bring enforcement actions. Many also operate their own administrative courts to hear disputes arising from those actions. In other words, they can act as rulemaker, judge, and enforcer.

Chief Justice John Roberts described the problem in his 2013 dissent in City of Arlington v. FCC. “As a practical matter,” he wrote, modern agencies exercise “legislative power,” “executive power,” and “judicial power.” That accumulation, he added, “is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.”

What makes the concern more than theoretical is the sheer scale of the system that has grown up within the federal government.

A Government Accountability Office report found that federal agencies published more than 27,000 rules between Jan. 20, 2013, and Jan. 20, 2025.

In 2024 alone, federal agencies issued 3,248 final rules, according to the Competitive Enterprise Institute’s analysis of Federal Register data. The Federal Register—the daily repository for federal rules, proposed rules, notices and other government documents—reached a record 106,109 pages that year.

And regulation is only part of the burden. Federal paperwork requirements consumed an estimated 10.5 billion hours in fiscal year 2023.

Those figures do not tell us whether any particular regulation is wise. But they do show how much federal policy is now shaped and implemented through administrative agencies rather than through Congress acting on each individual rule.

Defenders of the system argue that modern government oversees securities markets, pharmaceuticals, communications, aviation, energy, and other highly technical fields. Congress cannot possibly write every detail into law, they say, and agencies possess expertise legislators often lack. Their actions are also constrained by statutes, administrative procedures, and judicial review.

But the issue is not whether agencies may exercise discretion. It is whether the concentration of so many functions in the same institutions has gone too far.

The Supreme Court has recently begun confronting that question more directly.

In Loper Bright Enterprises v. Raimondo in 2024, the Court overturned the Chevron doctrine, holding that judges must exercise their own independent judgment when interpreting statutes rather than defer to an agency merely because the law is ambiguous.

A day earlier, in SEC v. Jarkesy, the Court held that when the SEC seeks civil penalties for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.

Together, those decisions reinforced the role of the courts in independently interpreting the law and, in certain enforcement cases, preserving the right to have claims decided by a jury rather than an administrative tribunal.

In Federalist No. 48, Madison warned that mere “parchment barriers” would not be enough to keep the branches within their proper bounds. Written limits, by themselves, could not prevent power from accumulating.

That is what makes Madison’s warning so relevant today.

His concern was never bureaucratic organization for its own sake. It was what happens to liberty when too much government power accumulates in the same hands.

More than two centuries later, the question is whether the concentration of power Madison warned against has now become a defining feature of the government he helped create.

We publish a variety of perspectives. Nothing written here is to be construed as representing the views of The Daily Signal.

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