Just before the weekend, President Donald Trump signed an executive order that aims to limit the criminal prosecution of individuals who unknowingly violate regulatory laws. This action is part of the administration’s larger push to reduce the federal government’s regulatory footprint, which the administration says is much too large and “overregulated.”
The United States is drastically overregulated. The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages” the order begins, nothing that that amount of regulation is “far more than any citizens can possibly read, let alone fully understand.”
“The situation has become so dire that no one – likely including those charged with enforcing our criminal laws at the Department of Justice – knows how many separate criminal offenses are contained in the Code of Federal Regulations, with at least one source estimating hundreds of thousands of such crimes” the order continues.
Therefore, “many of these regulatory crimes are ‘strict liability’ offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime” which has become the “Status quote” and “is absurd and unjust” because it allows the “executive branch to write the law, in addition to executing it.”
“That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals. It privileges large corporations, which can afford to hire expensive legal teams to navigate complex regulatory schemes and fence out new market entrants, over average Americans.”
Therefore, the purpose of the executive order is “to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.”
As described in the fact sheet, the order mandates that federal agencies, working in coordination with the Attorney General, must submit to the Office of Management and Budget (OMB) a comprehensive list of all enforceable criminal regulatory offenses. This list should also include the possible criminal penalties associated with each offense, as well as the mental state (or “state of mind”) required to establish liability.
Under the order, agencies will be required to issue public reports on their findings each year and consider implementing a “guilty intent standard” for all criminal regulatory violations, citing the specific legal authority backing each offense.
The order also makes it clear that “nothing in the order shall apply to the enforcement of the immigration laws or regulations promulgated to implement such laws, nor shall it apply to the enforcement of laws or regulations related to national security or defense.”
