A blatant violation of the separation of powers

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny.” James Madison wrote these words in The Federalist 47 in 1788 after the Constitutional Convention had deliberately divided the three main powers of government among three branches of government. Three separate powers in three distinct hands.

Plop him in 2026, and it wouldn’t take Madison long to start wondering how we missed his clear warning.

Sure, Congress is an entity distinct from the president, both are distinct from the Supreme Court, each has its own defined role and jobs, and they’re often at loggerheads with each other. All of that would be familiar to Madison. But then he’d notice a fourth branch of government composed of large agencies known only by their acronyms—each wielding all three powers of government.

This is the modern administrative state, where “The accumulation of all powers, legislative, executive, and judiciary, in the same hands” is the reality.

Executive agencies are supposed to enforce the laws adopted by Congress. But as is too often the case, the law enforcers are also the lawmakers.

Agencies effectively create laws when they issue rules based on broad delegations from Congress that give the agencies vast discretion to regulate as they see fit, creating new requirements and/or policies—even crimes—that Congress itself didn’t contemplate. Pacific Legal Foundation’s Nondelegation Project identified that 37 percent of congressional delegations cited in the Code of Federal Regulations were broad grants of authority to federal agencies.

Agencies as lawmakers

PLF client Tate Pulliam found himself on the wrong side of this kind of agency “law”-making. Pulliam was charged with two petty offenses for fishing in Yellowstone National Park’s rivers and one for driving his pickup truck down a road reserved only for over-snow vehicles. Those supposed violations aren’t found in a statute passed by Congress. What Congress said was that the Secretary of the Interior could issue any rules “necessary or proper” for park management. In Pulliam’s case, a park superintendent relied on that delegation to claim the authority to decide which activities were permitted in Yellowstone and which were criminal.

But the policy question of what conduct counts as criminal is reserved for Congress alone—through the lawmaking process—not for the Secretary of the Interior or his agents.

Another PLF client, Bill Slayden, along with his company Slayden Plumbing & Heating, Inc., has been hampered by executive fiat. Most of Slayden’s revenue comes from large-scale federal construction projects. Enter President Biden, who issued Executive Order 14063. This EO required all federal contractors to enter agreements with unions just for the opportunity to compete for the large-scale federal construction projects that Slayden’s business relies on. This policy was “codified” by a Federal Acquisition Regulatory Council rule.

But only Congress, by passing laws, can create new sweeping policies like these.

Agencies as courts

Worse still, these agencies are also often the adjudicators. The National Labor Relations Board (NLRB) has the power to investigate, prosecute, and adjudicate cases in-house, and that’s what it did to PLF client Rosewood Care, LLC, a nursing and rehabilitation facility in New York. Rosewood Care, which didn’t grant union organizers access throughout its property, allowed the organizers to hold meetings in the employee breakroom. The union filed a complaint with the NLRB, which brought Rosewood Care before an NLRB administrative law judge (ALJ). The ALJ ruled in the union’s favor, found that Rosewood Care had committed unfair labor practices by denying union organizers greater access to its property, and imposed penalties—all without a neutral court, judge, or jury.

But only the federal judiciary can impose binding penalties.

Municipal-securities advisor Matthias O’Meara, a PLF client, and his firm were sued by the Securities and Exchange Commission (SEC) for advising two clients without completing registration paperwork with the SEC. The SEC asked a federal court to impose several penalties, which the court did. The SEC could’ve asked the court to impose a lifetime industry ban—the so-called “career death penalty.” Instead, after the court issued its judgment, the SEC chose to adjudicate O’Meara’s lifetime ban in its own in-house tribunal. O’Meara’s liberty to earn a living in a lawful industry was to be decided by the very people prosecuting him.

But only the federal judiciary can adjudicate cases restricting an individual’s private rights to life, liberty, or property.

Federal agencies shouldn’t be a dumping ground for powers that Congress either doesn’t want for itself or takes from the judiciary. The Constitution is specifically designed to ensure that the people writing the laws are not the people prosecuting violations of those laws and are also not the people imposing penalties for those violations. That’s the genius of the separation of powers.

Otherwise, you have federal agencies that, instead of merely enforcing federal law, operate beyond the Constitution’s limits in a de facto fourth branch. In effect, they act as mini governments with all the powers of the state in their hands.

Every day it functions as such, the administrative state is a blatant violation of the separation of powers, and individual liberty ultimately pays the price. It is exactly what Madison warned against.