Guest Essayist: Tony Williams

The average government textbook explains that the American constitutional order has three branches of government: legislative, executive, and judicial which make up the reason for the three branches of government in the foundational principle of separation of powers. Drawing on Enlightenment thinker, Montesquieu, James Madison wrote in Federalist #51 that it was “admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”

The Founders feared that tyranny would result when the separation of powers was violated and one branch of government became too powerful.  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Scholars have used the terms imperial presidency, imperial judiciary, and imperial Congress to describe a dangerous accumulation of power in one of the branches.

All of this constitutional analysis should remind us that an unofficial fourth branch of government—the administrative state, or simply, the bureaucracy—amassed an incredible amount of regulatory power throughout the course of the twentieth century and into this century. Indeed, if one were to examine a chart of all the regulatory agencies, it would be hard to find an area of American daily life that is not regulated in dozens of ways throughout the day.

The reason for the regulatory agencies makes a certain amount of sense in an advanced industrial society and economy. All Americans want to fly in safe airplanes, drink clean water, and know what they are eating.

The administrative state began in the late nineteenth and early twentieth century with similarly good intentions. Corruption was rife as trusts had undue influence in Congress and the state legislatures. Reformers wanted to create more non-partisan governance with the creation of a civil service freer from the spoils system of the two parties.

Most importantly, the progressives at the turn of the century sought to change the nature of American government from the Founders. Legislative politics and the separation of powers principle, they believed, was too messy and often an impediment to regulating an advanced industrial economy. They wanted rule by objective administrative experts who would apply their academic and scientific expertise for rational, efficient government resulting in progress and an ordered society.

The result was a great expansion of the administrative state. The Interstate Commerce Commission, Food and Drug Administration, and the Federal Trade Commission were only some of the executive agencies that Congress created to regulate and rationalize the economy and society during the Progressive Era. President Woodrow Wilson and Congress continued this trend during World War I with several wartime agencies to manage mobilization efficiently.

The New Deal in the 1930s saw a dramatic increase in regulatory power of the federal government. Among these were numerous executive agencies Congress established during the Great Depression to achieve FDR’s goals of relief, recovery, and reform. These were consistent with the progressive vision of rational and orderly rule by experts. The Federal Communications Commission, National Labor Relations Board, and the Securities & Exchange Commission were only some of the agencies comprising the New Deal administrative state.

The Supreme Court initially thought the administrative state was running amok. In Schechter v. U.S. (1935), the Court ruled that the National Industrial Recovery Act was unconstitutional in part because Congress had delegated too much authority to the executive branch and violated the separation of powers. However, FDR appointed several justices to the Supreme Court, and it soon endorsed the administrative state for decades. In the 1984 Chevron decision, the Court went so far as to assert that courts should defer to administrative agencies interpreting their powers in congressional laws.

During the 1960s and 1970s, the Great Society and administration of President Richard Nixon created more executive agencies to regulate additional parts of the economy and society. The bureaucracy was greatly expanded with a wide variety of anti-poverty agencies and environmental agencies such as the Environmental Protection Agency. The administrative state became so large and powerful that one of the factors in the rise of the modern conservative movement culminating in the ascension of Ronald Reagan to the presidency was the promise of cutting the size of the federal government and thus the bureaucracy.

The rise of the bureaucratic administrative state was problematic for a number of reasons. First, it dramatically increased the scale and scope of federal government well beyond that envisioned by the Founders. Second, it substituted rule by the people and their representatives in Congress for rule by unelected experts in the executive branches. Third, at times, administrative agencies were allowed to set their own rules, enforce them, and decide and rule on disputes thereby amassing the power of all three branches of government.

James Madison and the Framers of the United States Constitution were right to separate the powers of America’s government into three branches. They understood that an accumulation of too much power in a single body would endanger liberty and republican government by violating the principle of a separation of powers as an important check on human nature.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.



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