Trump is attempting to reform federal regulatory criminal law
Wow. Just wow.
This was never on my radar screen for action by Trump. But it was on his:
On Friday, President Trump issued a new executive order with a remarkably broad scope and deep implications, under the title “Fighting Overcriminalization in Federal Regulations.” …
“The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages — far more than any citizen can possibly read, let alone fully understand. Worse, many carry potential criminal penalties for violations. 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. Many of these regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state [otherwise known as mens rea] to be convicted of a crime.
“This status quo is absurd and unjust. 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. …
“It is the policy of the United States that … criminal enforcement of criminal regulatory offenses is disfavored … Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.”
If I understand it correctly, this isn’t about – for example – laws passed by Congress. This is about laws executed by agencies which are under the executive branch rather than the legislative branch, and that’s why it might be constitutional for Trump to issue such an order concerning them.
And that indeed seems to be the case:
The first subtext of this executive order is federalism: moving ordinary criminal prosecution back to the states, after decades in which the list of federal crimes has grown so sharply that no one can possibly know them all. The second subtext is about constitutional order: passing what has amounted to lawmaking from the administrative state back to Congress.
The third piece of subtext is demystification …
This is potentially very big and very good, IMHO.
No ore “Three Felonies a Day”. Silverglate
Gonna be tougher for prosecutors to fill up their calendars.
“It is the policy of the United States that … criminal enforcement of criminal regulatory offenses is disfavored”
I can’t wait to read the district court injunction on this one…
This is extraordinary. I’ll believe it when I see it. I’m not a lawyer, so I could easily be over-interpreting this executive order, but it sounds like a strategy to cut the administrative state off at the knees.
I’m not sure, maybe the switch to digital formats has changed things; but, once in a while, I used to walk into libraries and wander into the section where codes and regulations were shelved. I’d stand amazed before shelf after shelf, row after row, of the Code of Federal Regulations. You wouldn’t believe the extent to which everything we do, everything that’s done around us, is regulated, monitored, and enforced. In some ways, we’ve all been living in an invisible totalitarian state.
Hundreds of millions of frogs in a slowly boiling pot. Can Trump really really turn off the heat? I doubt it. Dems will go absolutely wild. NPR will be full of sob stories that break the weepy meter. Activist judges will burn the midnight oil. etc., etc., etc.
Coincidentally, I posted the following at today’s Open Thread. Neo’s present post was apparently delayed due to site problems. Anyway, I’ll take the liberty of copy-pasting my comment below. I, too, was surprised the EO, but for an additional reason.
******
I navigated to the following post via one of the realclear sites today:
https://thefederalist.com/2025/05/13/donald-trump-just-made-it-harder-to-go-to-federal-prison/
I was astounded to read that federal regulations may be written to include criminal penalties. For some reason, I was under the impression that that criminal laws had to be statutory in the first instance. The post does not address or explain this issue; I would like to have seen more background on it. But the direction Trump is taking will hopefully be salutary.
I can just hear it now: “He’s giving all those white collar criminals who are his buddies free rein to do what they want!!!. Damn oligarch!!”
Trump gets better and better daily.
I had to laugh when Dems complained about unelected Elon Musk and DOGE. Farmers and ranchers have been suffering for decades under abusive regulatory overreach, from agencies like the EPA and whichever one that regulates inland waterways. Some of those waterways were merely temporary ponds formed by a heavy rainfall and a depression in the land.
I imagine that many of those regulatory actions were, in fact, written into legislation, but I’m sure many were not. Those regulators were unelected too.
<b"This is about laws executed by agencies which are under the executive branch rather than the legislative branch,…" [Neo]
If not passed by a legislature I offer that they are NOT laws; they are regulations. They may be treated by unelected regulators as if they were laws, and one might argue that my distinction is merely an academic difference, but ignoring this difference is what has given power to the unelected regulatory state.
I think this is relevant to Neo’s post and the comments that follow. I apologize for the length, and I don’t like to post text generated by an LLM, but I’m not a lawyer, and I think that this bit can help us understand the context for Trump’s recent EO.
_______________________________________________________________
Question posed to perplexity.ai:
What Supreme Court opinion granted Federal agencies the power to write regulations that interpret legislation passed by Congress?
Response from perplexity.ai:
The Supreme Court opinion that granted federal agencies the power to write regulations interpreting legislation passed by Congress is **Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)**. This landmark 1984 decision established the “Chevron doctrine,” which directs courts to defer to an agency’s reasonable interpretation of an ambiguous statute that the agency administers. Under Chevron, if Congress has not directly addressed an issue, courts must uphold the agency’s interpretation as long as it is reasonable, recognizing agencies’ expertise in implementing federal laws.
However, this doctrine was overturned by the Supreme Court in June 2024 in the case **Loper Bright Enterprises v. Raimondo**. The Court ruled 6-3 that Chevron deference was inconsistent with the Administrative Procedure Act (APA) and that courts must now use their own independent judgment to interpret ambiguous statutes rather than deferring to federal agencies. Chief Justice Roberts, writing for the majority, emphasized that it is the judiciary’s role to “say what the law is,” and agency interpretations are not entitled to deference under the APA. This decision significantly curtails the power of federal agencies to interpret statutes and write regulations based on those interpretations[1][2][4][5][7].
In summary:
– **Chevron v. NRDC (1984)** granted federal agencies the power to interpret ambiguous statutes through regulations, with courts deferring to reasonable agency interpretations.
– **Loper Bright Enterprises v. Raimondo (2024)** overruled Chevron, ending judicial deference to agency interpretations and restoring courts’ independent statutory interpretation authority[1][2][4][5][7].
Citations:
[1] https://www.ncsl.org/resources/details/supreme-court-throws-out-chevron-decision-weakening-federal-regulators
[2] https://www.scotusblog.com/2024/06/supreme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/
[3] https://www.ppic.org/blog/unpacking-the-supreme-courts-recent-ruling-on-the-chevron-doctrine/
[4] https://www.whitecase.com/insight-alert/us-supreme-court-strikes-down-chevron-doctrine-what-you-need-know
[5] https://www.dentons.com/en/insights/articles/2024/july/3/us-supreme-court-overrules-chevron-doctrine-implications-for-employers
[6] https://earthjustice.org/press/2024/supreme-court-eliminates-longstanding-legal-principle-concerning-federal-regulation
[7] https://www.hklaw.com/en/insights/publications/2024/06/supreme-court-overrules-chevron-deference
[8] https://www.shipmangoodwin.com/insights/the-us-supreme-court-halted-judicial-deference-to-federal-agencies-statutory-interpretations-what-comes-next.html
[9] https://www.kff.org/private-insurance/issue-brief/supreme-court-decision-limiting-the-authority-of-federal-agencies-could-have-far-reaching-impacts-for-health-policy/
[10] https://news.harvard.edu/gazette/story/2024/01/chevron-deference-faces-existential-test/