The buzz word for Week #16 of the made-in-America horror flick Trump Hell has to be over-criminalization. Over-criminalization was the subject of yet another Executive Order issued by the Trump Administration on May 9 and publicized on the White House web site. Here are links to both the official Executive Order and the "fact sheet":
On a weekend where Steven Miller appears on the White House lawn confirming consideration is being given to suspending habeas corpus protections as part of the battle against illegal immigration and an Administration publicly confirms it is considering accepting a $500 million dollar luxury jet as a gift from Qatar to serve as an interim Air Force One, any policy decisions about criminal prosecution philosophies accompanied by "fact sheets" merit detailed review.
The Executive Order in a Nutshell
The EO starts with the thesis that the United States is over-regulated and the quantity of criminal statutes on the books is so vast and opaque that no reasonable lawyer much less citizen can be expected to know of all the possible behaviors to avoid to comply with the law. It goes on to opine that strict liability standards applied with "regulatory criminal law" are too onerous and must be relaxed to require knowledge of the law and intent to break it to prosecute and that the Department of Justice will hence DE-PRIORITIZE all enforcement of "regulatory criminal law."
Here are excerpts from exact language of the EO stating these views:
Section 1. Purpose. 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.
From those assumptions, the following policies are established by the EO:
Sec. 2. Policy. It is the policy of the United States that:
(a) Criminal enforcement of criminal regulatory offenses is disfavored.
(b) 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.
(c) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.
(d) 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.
Legitimate Concerns?
Ignoring for a moment the Administration that issued this EO, are there merits to the concerns the EO claims to address? Maybe.
Are concerns about "dumb laws" valid?
Media outlets find it easy to produce "filler news" stories periodically summarizing old, obscure laws (and sometimes even new, obscure laws) on the books at the federal and state levels. To people outside the legal system, these articles implicitly make a simplistic but misleading point about how such arcane laws at best illustrate how inefficient the justice system can be and, at worst, how such laws can be used as "gotchas" to arbitrarily snare an average citizen for pointless infractions.
Left out of these recurring stories is any explanation as to WHY these types of laws exist. These existing "dumb laws" exist for three key reasons:
- At some point in the past, some collection of "dumb" people saw the need to ENACT those laws.
- Our legal system operates in a manner that prioritizes WRITTEN LAWS over relying upon arbitrary decisions made by a single prosecutor or judge or jury in deciding to prosecute, try and convict a citizen for violating a written law. It's why we say we have the rule of law rather than the rule of whoever has power. You don't want enforcement of laws varying purely because of who gets to make decisions about prosecution or conviction.
- Our political process has become paralyzed by corruption from special interest groups who often write the obtuse laws enacted by legislatures to obscure the benefits being extracted from those laws. These same corrupt forces also excel at protecting those laws once on the books and impairing the larger legislative flow such that spending time cleaning up thirty or eighty or one hundred fifty year old "leftover" laws isn't worth distracting the legislature and potentially burning up time required for new pressing needs.
The idea that the country is burdened by laws which are attempting to micromanage the citizenry and businesses is ironic given that the same conservatives making that argument which DRIVES very explicit terms to be incorporated into legislation also find fault (and legal escape) in laws which FAIL to spell out EXACTLY what is being made illegal and are "too vague" to enforce.
Are concerns about arbitrary prosecution valid?
Absolutely, but not in the sense possibly conveyed by this order. No government can literally enforce one hundred percent of laws against one hundred percent of all offenders. Doing so would require a police state mentality to catch every offense and would require enormous resources with diminishing returns to pursue every case. That has never been an argument for not enacting laws and establishing penalties. Prosecutors must ALWAYS evaluate charges brought by law enforcement against available facts, the nature of the crime and available resources with the prosecutor and the courts to ensure the most important cases are tackled and less important cases that might distract from the larger cases are deferred or declined. That's the nature of operating with limited budgets and personnel.
On the other hand, prosecutors should never be making decisions case by case as to what the law means or whether a particular suspect should be charged based on who the suspect is or their ties to people in power. When prosecutors are told to categorically AVOID prosecution of regulatory criminal law offenses except in outlying circumstances, they are being told to ignore the law to the point of nullifying the law which the Administrative branch lacks the Constitutional authority to do. If the complexity of existing law seems to be an obstacle given a growing society, increasing the budget for law enforcement and the courts would be a more logical policy goal than simply IGNORING decades of existing laws.
Are concerns about strict liability valid?
The strict liability standard applied to "regulatory criminal law" as termed by the EO essentially says a person who violates a "regulatory criminal law" can be prosecuted even if they didn't know the law existed or know they were breaking the law. This differs than the standard used for violent crime, for example, where a prosecutor must prove mens rea, meaning the prosecutor must prove the suspect KNEW of the law and UNDERSTOOD their action violated that law and INTENDED to violate that law.
The application of strict liability for "regulatory criminal law" versus mens rea in (regular) criminal law is based in large part upon the legal stakes involved with the two different categories of crime. For regulatory criminal violations, penalties might include jail time but are never going to impose the death penalty. More typically, regulatory crimes often just result in financial penalties or restrictions on future business actions. At the same time, violations of regulatory criminal statutes are FAR MORE COMMON than (regular) criminal statutes and the costs to society can be FAR GREATER if left unchecked.
It makes perfect sense to apply a lower standard of liability for crimes lacking risk of the ultimate penalty but can occur in volumes and magnitudes capable of triggering BILLIONS of dollars in real losses to other citizens and society in general. If you operate a million or billion dollar enterprise, you shouldn't be expected to know every page of the federal statutes but you should pay to have professional legal counsel steer you clear of the shoals. Attempting to operate a large business WITHOUT sound legal and accounting support is the business equivalent of designing and building your company's skyscraper without an engineering degree. Sure, if the building collapses, it's your fault and you may die but the rest of the public has a right to be protected from your building collapsing on nearby citizens.
What's Behind This Executive Order?
Trump lacks the intellectual horsepower to completely cloak the underlying intent of this order. This order does nothing to "level the playing field" for small business to compete with big megacorps with immense legal staffs to navigate confusing legal statutes at the federal and state level. This order has nothing to do with ELIMINATING the potential for arbitrary prosecution of citizens based on the whims of the sitting President. This order does the exact opposite on both counts.
It magnifies the abusive market power of large corporations by explicitly telling them it is de-prioritizing enforcement of "regulatory criminal law." This encourages corporations to simply NOT review potential business decisions with competent legal counsel then claim ignorance of the law after concocting schemes to interfere with competitors, defraud customers or lie to the government regarding actions taken in violation of labor, safety and environment regulations. A small business owner with 20-30 employees might not be aware of a workplace safety regulation that might pose a risk to employees. A firm like Amazon employing 740,000 warehouse workers and 390,000 drivers has ZERO excuse to be "unaware" of safety regulations involving repetitive injuries, shift lengths, chemical exposures, etc. Their ability to exploit violations of such rules for profit is exponentially greater than even hundreds of small businesses.
The EO includes this language
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.
That language might seem reasonable to the average citizen but fails to acknowledge the stakes involved in operating billion dollar corporations. Is it conceivable that a billion dollar chemical company might not know a new product it developed would cause cancer in consumers or factory workers? Absolutely. Does it make sense to let that corporation or its executives and engineers off the hook if they didn't absolutely, positively KNOW the new product would cause cancer? Absolutely not. In a complex, scientifically driven industrial economy, no one is going to know everything at any given time but the financial and legal burden of uncertainty is best carried by those who should be EXPECTED to know the most about those risks. Reducing that liability and potential criminal exposure creates what economists term an "externality", a cost that is shifted away from the creator of the cost that encourages overproduction of a good or service by inflating its profitability, privatizes the profits and socializes the risks.
This executive order doesn't REDUCE the opportunity for prosecutorial abuse at the direction of the President, it MAGNIFIES it. The preamble to this EO states the following:
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.
Regulatory law has become so prevalent in modern societies precisely because of the complexity of modern industrial economies. As an example, regulation of pollution involves continual learning about new health risks gleaned from medical advances and continual evolution as businesses devise new chemicals and new uses for existing chemicals and materials. Because of this technical complexity and the paralysis and inefficiency of legislative processes, it is impossible for elected officials to explicitly update statutes on a monthly basis in sync with advancements in industry. Laws must be written with enough generality to allow agencies charged with enforcing the law to clarify and evolve rules over time in response to scientific advancements without having to navigate a gauntlet of special interests with tens of millions of dollars to thwart any additional changes.
An argument that assumes a complex economy with heavily concentrated power can be successfully regulated with simple laws and rely upon the good intentions of the most powerful to look out for the public's interest is a fantasy with no basis in reality. Instead, it is a direct reflection of a goal of extreme conservatives to dismantle the entire regulatory framework of the United States that emerged in the latter 1880s as a response to anti-competitive monopolies and horrendous labor practices. That legal rationale was extended in the 1960s, 1970s and 1980s into environmental and safety regulations as consequences of pollution ranging from the Manhattan project, mining and pesticide production became apparent.
Rather than reducing the potential for selective enforcement, an explicit direction to minimize enforcement of such laws while still leaving them on the books magnifies the power a President has over industry to extract favors in return for continuing to look the other way. In Trump, America has a President who is literally auctioning off private dinners and White House tours for those buying up the largest blocks of his meme coin as a means of not only padding his wallet but having compliant future partners in corruption self-identify their willingness to partner up with Trump in any scheme, no matter how corrupt in nature. In Trump, America has a President who is "considering" accepting a $500 million dollar used luxury 747 from a foreign government to serve as an interim Air Force One as Boeing falls five years behind and counting in delivering replacements for the 30-year old airframes currently in use. One would have to be criminally naive to assume such a President would not actively leverage his influence over prosecutorial priorities to protect his friends and punish his enemies. He has often promised to do exactly those things.
The intent of this executive order has nothing to do with streamlining legitimate business operations by eliminating cumbersome, pointless, gotcha regulations. This EO is a statement of intent to implement a rollback of over one hundred and forty years of laws protecting workers and the public via fiat rather than by altering the law. Such a rollback has been at the top of the extreme conservative to-do list since the Chevron vs National Resources Defense Council decision in 1984 expanded the government's regulatory authority by explicitly deferring to agency expertise in many rules-setting decisions. Conservatives LIKED the ruling at the time when they thought a conservative Administration would be using the power but DESPISED it once control shifted to Democratic Presidents.
The intent of this order has everything to do with bypassing actual legislative work to correct whatever flaws are imagined in current law – even with majority control in the House and Senate – and further putting a corrupt President in a position of power over an ever-wider swath of activity in the entire economy to manipulate to enrich himself and persecute his enemies.
WTH
