Imagine going out to take your dog for a walk on the National Mall and ending up in handcuffs, all because your dog was not on a leash. This scenario sounds absurd in America. But it happened to Fox News commentator Dana Perino’s husband under the National Park Service’s regulations for the National Mall, which have criminal consequences.
The National Park Service is not an outlier. Across the federal government, federal agencies have seized a broad grant of power from Congress to write whatever regulations they deem “necessary” and back them with the power of criminal enforcement. These regulations are quietly passed through rule-making, where only the very most attentive of people would notice. The result is many people are regularly violating criminal laws that they do not even know exist.
To make matters worse, many of these regulatory crimes do not require that an individual know what they are doing is wrong. Our criminal law traditionally requires someone to have a “guilty mind.” But with many of these criminal laws, no such “mens rea,” or mental state, is required.
The problem is out of control. No one knows how many separate crimes there are, including the Department of Justice. Researchers have tried counting, with one 2019 effort identifying at least 5,199 statutory crimes. Regulatory crimes are orders of magnitude greater, with estimates of the number of regulatory crimes ranging from 100,000 to 300,000 separate offenses.
This is inconsistent with basic ideas of self-government and the intentions of those who framed the Constitution. Laws with criminal consequences should be carefully considered by the legislative branch, not pushed through by unelected bureaucrats who are not accountable to the people.
The combination of low standards for culpability and more criminal laws than anyone can count is perilous for anyone. But the biggest effects are on the little guy. As Justice Neil Gorsuch observed in the Loper Bright Enterprises case, “Sophisticated entities and their lawyers may be able to keep pace with rule changes affecting their rights and responsibilities” or “even capture the agencies that issue them,” while “ordinary people can do none of those things.”
Under a doctrine known as “Chevron deference,” by “deferring” to agency interpretations, courts have let administrative agencies effectively determine the law for themselves. By overturning Chevron, the Supreme Court has set off a time of transition and change for administrative law. The new trend, hopefully, will be to restore power to Congress and, by extension, the American people.
Even assuming good intentions on the part of our public servants, they are still people, subject to the same blind spots and bouts of poor judgment as anyone else. In one notable example, a young girl tried to save a fallen baby bird, only to have her mom charged with a crime by the U.S. Fish and Wildlife Service. While the charges were dropped, the damage was done. Even if a legal defense proves successful, the process itself can be the punishment, as it is expensive and takes an emotional toll.
It does not have to be this way. Congress can seize the opportunity and pass some simple and commonsense reforms that would further reduce the power of the administrative state and its appetite for passing criminal laws.
Congress should begin by requiring the executive agencies to simply catalog their regulations that have criminal consequences. After all, if a federal agency does not know if something is a criminal offense, how can the people be expected to? If a “mens rea” requirement is not already in the law, Congress should make all criminal regulations have a “willful” requirement to prevent citizens from being prosecuted for actions they did not even know they took. For new laws, agencies should be required to state the applicable mental state.
These solutions are merely a start. Given the scope of the problem, the effort to tackle overcriminalization must be a sustained one. But these simple solutions provide common sense actions to get the ball rolling. During this transitional period in administrative law, Congress should act on the chance to tackle a major problem.
Gary Lawkowski is a lawyer with the Dhillon Law Group, where he advises and represents clients on legal issues including matters concerning the Freedom of Information Act. He is also a Senior Fellow for the Council to Modernize Governance. Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
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