Top Points:
Excessive Bureaucratic Power: Unelected federal agencies have overstepped their bounds by creating regulations with criminal penalties without proper legislative oversight, leading to absurd and unjust situations for ordinary citizens.
Lack of Accountability: Many regulatory crimes do not require a "guilty mind" (mens rea), resulting in individuals being prosecuted for actions they were unaware were illegal. This is inconsistent with the principles of self-government and the Constitution.
Need for Legislative Reform: Congress should implement reforms to catalog criminal regulations, require a "willful" mental state for criminal offenses, and ensure new laws clearly state the applicable mental state. This would reduce overcriminalization and restore power to the American people.
Full Report:
In America, the legislative branch, composed of elected representatives, is supposed to create laws, especially those with criminal consequences. However, unelected and unaccountable bureaucrats have been overstepping their boundaries, pushing through regulations with criminal penalties without the necessary oversight.
Consider the case of Dana Perino’s husband, who found himself in handcuffs for walking their dog without a leash on the National Mall. This absurd scenario, stemming from the National Park Service’s regulations, underscores a larger problem: federal agencies wielding too much power.
Federal agencies across the government have taken a broad grant of authority from Congress, writing regulations they deem “necessary” and backing them with criminal enforcement. These regulations often fly under the radar, quietly passed through rule-making processes that escape public notice. Consequently, many Americans inadvertently violate these laws, unaware of their existence.
A more significant issue is that many of these regulatory crimes do not require an individual to know they are committing a crime. Traditionally, criminal law requires a “guilty mind” or “mens rea.” Yet, for many regulatory offenses, this standard is not met.
The extent of this problem is staggering. The Department of Justice doesn't even know the total number of separate crimes, with researchers identifying at least 5,199 statutory crimes in a 2019 effort. The number of regulatory crimes is exponentially higher, estimated to range between 100,000 to 300,000 offenses.
This situation contradicts the fundamental principles of self-government and the framers' intentions in the Constitution. Laws with criminal consequences should be thoroughly considered by the legislative branch, not pushed through by unaccountable bureaucrats.
The combination of vague culpability standards and an overwhelming number of criminal laws is dangerous for everyone, especially the average citizen. Justice Neil Gorsuch highlighted this disparity in the Loper Bright Enterprises case, noting that while sophisticated entities can navigate these regulations, ordinary people cannot.
Under the doctrine of “Chevron deference,” courts have allowed administrative agencies to interpret laws as they see fit. The Supreme Court's recent decision to overturn Chevron marks a pivotal shift, potentially restoring legislative power to Congress and, by extension, the American people.
Even with good intentions, public servants are still human and prone to errors. One notable example involved a young girl saving a baby bird, only for her mother to be charged with a crime by the U.S. Fish and Wildlife Service. Though the charges were dropped, the ordeal highlighted the unnecessary suffering caused by such regulations.
This doesn’t have to continue. Congress can and should enact simple, commonsense reforms to curb the administrative state’s power. Here are a few steps:
Cataloging Regulations: Executive agencies should catalog all regulations with criminal consequences. If they don't know which actions are criminal offenses, how can citizens be expected to?
Mens Rea Requirement: Congress should ensure that all criminal regulations include a “willful” requirement, preventing prosecutions for unknowingly committing offenses.
Clarifying Mental State: For new laws, agencies must clearly state the applicable mental state.
These are just initial steps. Given the problem’s scale, tackling overcriminalization will require sustained efforts. During this transitional period in administrative law, Congress has a golden opportunity to address this significant issue and restore power to the people. Let's seize it.
Original Story by Gary Lawkowski and Curtis Schube, The Federalist
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