The “rule of law” is a phrase that Americans utter almost like a prayer. We claim to live by “the rule of law,” but what exactly does that mean?
The “Code of Federal Regulations” contains 48,000 sections spanning 175,000 pages. Each and every one of those regulations is backed by the full force of law. An estimated (because no one wants to spend their life calculating it) 300,000 federal regulations carry criminal penalties for violating them.
Ignorance of the law is not a defense. That’s why we constantly read about silly enforcement actions like the biker who rode up and down Grand Teton only to be charged with a misdemeanor for riding on a closed trail, even though the National Park Service neglected to tell anyone it was off limits.
Donald Trump is the first president to try to address this silliness. He issued an executive order last week that will attempt to mitigate this overregulation.
Trump decried the ability of federal agencies to invent crimes.
“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,” Trump notes. “This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it.”
The “strict liability” offense is the bane of modern life. When the government charges you with a crime, even though you didn’t know it was illegal, it violates the ancient mens rea standard, or “state of mind.” Almost all crimes used to require proving that you intended to commit the crime or were aware of the circumstances that made it criminal. Tens of thousands of regulatory transgressions have subsumed that standard, each carrying criminal penalties.
Trump said prosecutors generally should eschew criminal charges for regulatory violations based on strict liability and focus on cases where the evidence suggests the defendant knowingly broke the rules. Trump also instructed federal agencies to “explicitly describe” conduct subject to criminal punishment under new regulations and prepare lists of regulatory violations that already can be treated as crimes.
Given the enormous volume and range of federal regulations, that last requirement is a tall order. But if the agencies that issue those regulations cannot specify all of the violations that can trigger criminal penalties, what hope does the average American have?
Michael Chase, whose “Crime-a-Day” X account has 144,000 followers, regularly posts on government nonsense.
21 USC §§331, 333, 343(g) & 21 CFR §133.195(a)(1) make it a federal crime to sell “swiss cheese” without holes in it. https://t.co/NDhGjygsch
— A Crime a Day (@CrimeADay) December 21, 2024
Two federal agencies – the Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) have jurisdiction over the components in a ham and cheese sandwich. Bread falls under FDA and ham under USDA regulations. However, an open-faced sandwich is covered by USDA guidelines but another slice of bread moves it to FDA regulations.
In a section of Trump’s Executive Order entitled “Criminal enforcement of criminal regulatory offenses is disfavored,” Trump tries to destroy the “strict liability” standard of many federal regulations.
Prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm. Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.
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.
In a book by Supreme Court Justice Neil Gorsuch and co-author Janie Nitze entitled “Over Ruled: The Human Toll of Too Much Law,” the authors make a compelling case that too much law is not only a block on freedom, but it also affects us in ways we don’t realize.
Few would argue that we don’t have enough law.
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