Congressional lawmakers are seeking a bipartisan path to codify President Trump’s order easing regulations that sometimes make people into criminals for breaking laws they have no reason to know exist.
Mr. Trump’s order reined in criminal enforcement of regulatory offenses while prioritizing prosecutions for those who knowingly violate the rules and cause significant harm. It was praised by lawmakers and legal experts as a good first step toward retracting government overreach.
Indeed, former Harvard Law School professor Harvey Silverglate estimates that the average American commits three felonies a day without even realizing it.
However, Mr. Trump’s order could lapse unless Congress passes legislation to make it the law.
House Judiciary Crime Subcommittee Chairman Andy Biggs is among a bipartisan group of four lawmakers spearheading legislation to “simplify the federal criminal code.”
“I’ve held hearings examining federal overreach and have long battled to reduce overcriminalization,” the Arizona Republican said. “I was thankful to see President Trump’s leadership on this issue and look forward to working with him to codify his executive order.”
Mr. Trump’s order draws support across America’s sharp political divides, including from Mr. Silverglate, who co-author of the 2009 book “Three Felonies a Day.”
Mr. Silverglate told The Washington Times that he doesn’t support most of the Trump agenda but was pleased with the “well-drafted” executive order that effectively decriminalized some of the regulatory regime.
“The number of regulations is so vast that the average American has no idea if he’s breaking the law. And it’s time for retrenchment,” he said. “Congress should have stepped in decades ago, and it didn’t.”
“If Congress wants to repeal some statutes and regulations, it can do so, but in the meantime, instructing non-enforcement of some of these ridiculous regulations is a good first step.”
Mike Fox, a legal scholar at the libertarian Cato Institute, agreed.
He also blamed Congress for how the nearly 400,000 federal regulations pile up, with often unchecked enforcement behind them.
“Part of the problem is that a lot of times Congress will just pass blanket authorizing statutes that will say, ’The secretary of the interior shall regulate anything necessary and proper to carry out their agenda.’ And then there’ll be another statute that’ll say, ’And violations of any of those regulations can be a crime,’” he said.
“So now you have something where there’s no intelligible principle, no limiting principle at all. Congress basically gave agencies unfettered ability to promulgate regulations,” Mr. Fox said. “And if that’s not enough, they also said, oh yeah. And by the way, if you dare to break this, the Justice Department can take away your liberty for it.”
Mr. Trump ordered that strict liability offenses, which don’t require proof of bad intent, will generally not be enforced with criminal penalties.
Each agency now must, in consultation with the attorney general, provide to the Office of Management and Budget a list of all enforceable criminal regulatory offenses, the range of potential criminal penalties, and the applicable state of mind required for liability.
Agencies will be required to post these reports publicly and update them every year, and criminal enforcement of offenses not publicly posted will be strongly discouraged.
Under the order, agencies also must look into adopting a guilty intent standard for criminal regulatory offenses and cite the authorizing statute.
Mr. Trump’s order does not apply to immigration law enforcement or national security functions.
The bipartisan group of lawmakers on the Judiciary Committee in March proposed legislation, the Count the Crimes to Cut Act of 2025, in March to begin shrinking the federal criminal code.
The legislation would require the Department of Justice and federal agency heads to compile a comprehensive report detailing all federal criminal statutes and regulations entailing criminal penalties.
The bill was co-authored by Mr. Bigs and fellow Republican Rep. Chip Roy of Texas and Democratic Reps. Lucy McBath of Georgia and Steve Cohen of Tennessee.
“Freedom is just an illusion when the government buries its own citizens under ridiculous and never-ending criminal laws. This needs to change,” said Mr. Roy.
Ms. McBath, the top Democrat on the crime subcommittee, said she was proud to take up the bill “to expand safety and justice for the American people.”
“My first priority in Congress has always been maintaining the safety and well-being of my constituents. With the Count the Crimes to Cut Act, Americans will no longer have to fear being excessively punished, and criminal justice professionals can better protect the public,” she said.
Mr. Biggs also reintroduced his Mens Rea Reform Act in February, which establishes a default mental state of “knowingly” for federal criminal offenses that lack an explicit mental state standard.
This legislation will require the prosecution to prove the defendant was aware that the conduct they engaged in was criminal or that their conduct was essentially certain to cause the criminal result in question.
Republicans have long tried to pass the legislation, but Democrats argued that white collar criminals would too often escape prosecution if such a bill became law.
