New Executive Order Offers Promising Solutions on Regulatory Overcriminalization
Earlier this month, the Trump administration took action to address a widespread problem within the federal criminal justice system: regulatory overcriminalization. The executive order (EO), “Fighting Overcriminalization in Federal Regulations,” outlines problems with the federal regulatory code and offers solutions to address and reduce them, including retroactively.
As we wrote in March, the full scope of federal overcriminalization is not entirely known, since the Congressional Review Service gave up trying to inventory how many federal crimes—both statutory and regulatory—exist on the books. However, other attempted studies have estimated between 300,000 to 400,000 regulatory crimes spread throughout the Code of Federal Regulations (CFR). Currently at more than 175,000 pages, the CFR continues to expand as new agency rules and regulations are promulgated and adopted.
Furthermore, many of these penalties lack a mens rea, or “guilty mind,” standard, meaning Americans can and do get caught up in complex situations. The current lack of a default mens rea standard for those crimes where a mens rea standard is not explicitly stated is a threat. Without adequate consideration of criminal intent, people may become federal criminals for doing things they did not know or would have no way of knowing were illegal.
To give a sense of how rapidly rules and regulations pile up, the Competitive Enterprise Institute calculated 3,248 new final regulations issued in 2024. The lowest annual number of new final regulations on record is not much lower (2,964 in 2019). Not only do these rules and regulations contain an immeasurable number of criminal penalties, they also cost our country at least $2.155 trillion annually in compliance costs and economic effects, averaging $16,016 in hidden regulatory tax per U.S. household each year. The average annual household income in the United States is just over $80,000.
Given the immense burden the federal regulatory code imposes on Americans, this recent EO is a welcome step toward mitigating the negatives of overcriminalization. It calls for three main actionable items. First is the creation of a publicly available and regularly updated report listing “all enforceable criminal regulatory offenses, the range of potential criminal penalties, and applicable state of mind required for liability.” Second is a mandate to include an upfront statement disclosing the proposal of a new criminal regulatory offense during the notice of proposed rulemaking process, along with the authorizing federal statute and proposed mens rea requirement. Third is the examination of existing mens rea standards across the regulatory code and (if authority exists for it) the establishment of a default mens rea standard.
As the Heritage Foundation has noted in their longstanding work on this issue, “The criminal law should be used only to redress blameworthy conduct, actions that truly deserve the greatest punishment and moral sanction.” Taken together, the implications of this EO are great for paring back the criminal regulatory burden to bring it further in line with the above-stated goal. Having promised transparency and accountability in this matter, the Trump administration must ensure each step is carried out for the betterment of the criminal justice system and the legitimacy of the government in the eyes of its people.