What Did James Madison Say About Putting All Power in the Same Hands?

The topic of discussion for the Constitution Monday comes from James Madison, as Michael Freund explained in his article published in The Daily Signal. 

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 countered 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 Securities and Exchange Commission 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.

Is Congress Checking Trump?

The topic of discussion for this Constitution Monday concerns the separation of powers outlined by the U.S. Constitution between the executive and legislative branches of the federal government. Pundits say that President Donald Trump rolled over Congress. James Curry, professor of political science at the University of Notre Dame who specializes in Congress and U.S. policymaking, thinks the story is wrong. 

Curry shared the following thoughts on the topic in an article published in the Deseret News. He suggests that Americans should look past the headlines to see a different picture and gives three examples to show how the legislative branch is checking the executive branch.

1. Pushing back on nominees

Consider the president’s efforts to reshape the executive branch. In 2025, while Elon Musk’s DOGE efforts dominated the news, the Republican-led Senate was quietly blocking a record number of the president’s nominees. There were no dramatic floor votes. The nominations simply sat until the White House gave up and pulled them.

Trump withdrew 57 executive branch nominations in 2025… Every withdrawn nomination is a fight the president lost without anyone seeing a punch thrown.

2. Pushing back on mass layoffs

Congress also put a halt to the aggressive workforce reductions that characterized the first several months of the second Trump administration. Through layoffs, buyouts and early retirements, the administration pushed out more than 200,000 federal employees in the first 10 months of 2025.

Then Congress stepped in. The November 2025 bill ending the longest government shutdown in American history barred agencies from any further mass layoffs while it was in effect, and lawmakers have kept up that pressure in legislation since.

By March 2026, the government was hiring again, bringing back workers who had left and restaffing agencies that had been gutted. The exceptions tell the story. USAID and the Corporation for Public Broadcasting stayed dead because Congress itself voted to kill them.

3. Pushing back on aggressive spending cuts

Congress has also done more to push back on the Trump administration’s efforts to unilaterally slash federal spending than it may seem. In 2025, the administration cut funding for science and health research, foreign aid, clean energy, and more.

Through the appropriations process, however, Congress has put much of it back. Despite DOGE, federal spending actually rose from 2024 to 2025, and most programs are funded at roughly Biden-era levels.

The cuts that stuck are mostly the ones Congress approved. That is exactly how the Constitution says spending decisions should be made.

Congress has moved to check President Donald Trump in other ways as well. It put an end to the president’s $1.8 billion “weaponization” fund, which would have funneled money to his political allies. Democratic and Republican senators refused to back Trump’s SAVE Act, which would have allowed the Trump administration unprecedented influence over who can and cannot vote in federal elections. And this summer, Congress passed the largest housing affordability bill in decades with broad bipartisan support, despite opposition from President Donald Trump.

Curry explained that the pushback goes unnoticed because “presidents and Congress move at different speeds. A president can act with the stroke of a pen. Congress has 535 members, two chambers and no single voice. It acts by holding coalitions and passing laws, which takes months, sometimes years.”

Curry continued by explaining that the president has weeks, months, or years to push his plan before Congress responds, and the topic is already old news. “But those slow, quiet moves are the system working as designed. The separation of powers was never meant to be an alarm with tripwires. Congress responds through legislation, and it responds in proportion to what voters demand.” He stated that the “system is alive and well. We just have to know where to look.” 

What Does Separation of Powers Mean for Immigration?

The topic of discussion for this Constitution Monday concerns separation of powers in the federal government. The Executive Branch, the Legislative Branch, and the Judicial Branch are co-equal branches of the federal government. This means that none of the three has the power or authority to tell either of the other two branches how to do their job.

The Executive Branch cannot tell the Legislative Branch how to write bills or the Judicial Branch how to decide court cases. The Legislative Branch cannot tell the Executive (POTUS) what the foreign policy should be. For the same reason, the Judicial Branch cannot force their agenda onto the Executive Branch or the Legislative Branch. The only power or authority of the Judicial Branch is to determine what is constitutional and what is not.

Over the past four months, rogue lower judges in the Judicial Branch have tried to make foreign policy or immigration decisions and other presidential decisions. They are acting as a judicial coup attempting to stop or at least slow down the agenda of the Trump administration. One of the areas where the rogue judges have overstepped their judicial authority has to do with undoing a Biden executive order that admitted illegal aliens from Cuba, Haiti, Nicaragua, and Venezuela into the United States temporarily under a parole program. Virginia Allen wrote about this court case and published it at The Daily Signal. 

The Supreme Court has allowed the Trump administration to revoke temporary protected status for 500,000 illegal aliens living in the U.S.

In a 7-2 ruling on Friday, the justices lifted a lower court’s order that barred the Trump administration from deporting illegal aliens from Cuba, Haiti, Nicaragua, and Venezuela who entered the U.S. under the Biden administration parole program.

The court’s decision comes in response to Homeland Security Secretary Kristi Noem’s efforts to end the Biden-era parole policy that allowed migrants from the four countries to fly directly into the U.S. and be transported into the interior of the [country].

On his first day back in office, President Donald Trump signed an executive order directing the Department of Homeland Security to “terminate all categorical parole programs,” including the “processes for Cubans, Haitians, Nicaraguans, and Venezuelans.”

In March, the Department of Homeland Security issued a notice announcing the official termination of the program, effective on April 24, but a federal judge blocked DHS from revoking legal status for the illegal aliens in the U.S. under the parole program.

The Trump administration’s action was challenged in a federal court in Massachusetts, which stayed DHS’s action. The U.S. Court of Appeals for the 1^st Circuit upheld the federal court’s decision. The Trump administration asked the Supreme Court to undo the lower court’s stay.

The Supreme Court’s order allows the Trump administration to move forward with plans to terminate the legal status of Cuba, Haiti, Nicaragua, and Venezuela migrants while an appeal is pending before the 1^st Circuit Court of Appeals….

The Supreme Court’s ruling Friday comes just two weeks after the justices issued an order allowing the Trump administration to proceed with plans to strip temporary protected status from thousands of illegal aliens from Venezuela living in the U.S.

What Does Separation of Powers Mean?

The topic of discussion for this Constitution Monday concerns the powers of the three branches of the federal government. The Founding Fathers created a three-headed government: the executive branch with a strong President, the legislative branch with a two-chamber Congress, and the judicial branch with nine separate judges.

Separation of Powers

The President is the leader of the United States of America, but the Constitution does not give the POTUS power over the legislative or judicial branches. Likewise, Congress does not have power over the executive branch or the judicial branch, and the judicial branch does not have power over the executive branch or the legislative branch. However, this separation of power did not stop the Democrat-led January 6 Select Committee from seeking power. This site describes and explains the separation of powers in the federal government. 

A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. The Framers’ experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. Thus, in order to preserve individual liberty, the Framers sought to ensure that a separate and independent branch of the Federal Government would exercise each of government’s three basic functions: legislative, executive, and judicial. While the text of the Constitution does not expressly refer to the doctrine of separation of powers, the Nation’s Founding document divides governmental power among three branches by vesting the Legislative Power of the Federal Government in Congress; the Executive Power in the President; and the Judicial Power in the Supreme Court and any lower courts created by Congress.

 

Although the Framers of the Constitution allocated each of these core functions to a distinct branch of government, the design of the Constitution contemplates some overlap in the branches’ performance of government functions. In particular, the Framers favored an approach that seeks to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches. Moreover, to address concerns that one branch would aggrandize its power by attempting to exercise powers assigned to another branch, the Framers incorporated various checks that each branch could exercise against the actions of the other two branches to resist such encroachments. For example, the President has the power to veto legislation passed by Congress, but Congress may overrule such vetoes by a supermajority vote of both houses. And Congress has the power to impeach and remove the President, Vice President, and civil officers of the United States. 

 

Over the course of our history, the Supreme Court has elaborated on the separation-of-powers doctrine in several cases addressing the three branches of government. At times, the Court has determined that one branch’s actions have infringed upon the core functions of another. For instance, the Court has held that Congress may not encroach upon the President’s power by exercising an effective veto power over the President’s removal of an Executive officer. Furthermore, the President may not, by issuing an executive order, usurp the lawmaking powers of Congress. The Supreme Court has also raised concerns about the judiciary encroaching on the legislative or executive spheres where a litigant asks the courts to recognize an implied cause of action, or to vindicate the rights of the public at large rather than those of a specific individual in a case properly before the court. When ruling on whether one branch has usurped the authority of another in separation-of-powers cases, the Court has sometimes adopted formalist approach to constitutional interpretation, which closely adheres to the structural divisions in the Constitution and, at other times, has embraced a functionalist approach, which examines the core functions of each of the branches and asks whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain. 

 

Subpoena of Former President Donald Trump

Separation of powers was denied in October when the Select Committee subpoenaed former President Donald Trump and ordered him to testify and to hand over documents. Trump recognized that the committee was overreaching its authority and blocked the subpoena with a lawsuit. The lawsuit called the probe an “illegal, unfounded, and overbroad records request.”

Last Wednesday the January 6 committee dropped its subpoena of former President Donald Trump. According to Diana Glebova at the Daily Signal, Representative Bennie Thompson (D-Mississippi) sent a letter to Trump’s attorney containing the following: 

In light of the imminent end of our investigation, the Select Committee can no longer pursue the specific information covered by the subpoena.

Therefore, through this letter, I hereby formally withdraw the subpoena issued to former President Trump, and notify you that he is no longer obligated to comply or produce records in response to said subpoena. 

Trump’s Response

Trump responded as only Trump does and said via Truth Social: “They knew I did nothing wrong.” He wrote:

Was just advised that the Unselect Committee of political Thugs has withdrawn the Subpoena of me concerning the January 6^th Protest of the CROOKED 2020 Presidential Election. They probably did so because they knew I did nothing wrong, or they were about to lose in Court. Perhaps the FBI’s involvement in RIGGING the Election played into their decision. In any event, the Subpoena is DEAD!

Glebova wrote that Trump claimed that the “committee omitted evidence, made false statements, and ‘did not produce a single shred of evidence’ that he ‘intended’ for violence to occur at the Capitol.”