That’s the title of an executive order recently issued by President Trump. Compared to tariffs and donated airplanes, it didn’t get much media coverage, but it should have. The order is a well-crafted response to an enormous problem.
The order begins by describing the extent of the problem:
The United States is drastically overregulated. 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 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.
The purpose of this 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.
Among other excellent provisions, the order goes on to state that the “criminal enforcement of criminal regulatory offenses is disfavored” and that “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.”
The order also imposes several new and salutary reporting and notice requirements on agency heads and requires them to adress the problem of “strict liability” crimes by adopting default mens rea standards.
All of this is excellent. It is important to note, however, that what one president can accomplish by executive order, another president can reverse. Congress created the problem of overcriminalization, and Congress needs to step up and provide a long-term solution
It is also important to note that the problem of overcriminalization isn’t confined to the federal government. It’s a huge problem here in North Carolina as well, and the John Locke Foundation has been sounding the alarm about it for years. See here for our analysis and recommendations.
