President-elect Donald Trump’s “Contract with the American Voter” pledges that “for every new federal regulation, two existing regulations must be eliminated.”
This should be celebrated by the majority of Americans who think the federal government does too much.
At the outset of this regulatory unwinding, one potential priority stands out above the others. The Trump administration should review the 300,000 or more federal regulations that carry criminal penalties with the goal of amending them to carry only noncriminal sanctions—or otherwise, repeal them altogether.
Over a century ago, the Supreme Court decided that Congress may set a criminal penalty “for violations of regulations to be made by an executive officer.” (United States v. Grimaud (1911)). Since then, writes former U.S. Attorney General Edwin Meese III, the “Congress has delegated to a host of federal agencies the power to define by regulation the elements of a broad range of different criminal laws.”
Today, these regulations number over 300,000. They are published in the bowels of the federal register—the place where few people outside of law firms and major corporations look to find laws—and are often drafted in ambiguous and often hyper-technical language that can’t be understood.
One might assume that if a regulation is serious enough for violators to be subject to criminal prosecution, it would be designed to prohibit conduct that is seriously harmful and morally condemnable. But this is often not the case.
For example, no one worries when they leave their house at night that a dog might bark at a squirrel. Most people don’t even pretend that they could prevent all dogs from barking. Yet it is a federal crime to allow a pet to make a noise that scares wildlife within a national park.
Nobody fears a local ice cream store might put a few too many drops of wine into a wine sorbet for sale. But that is also a federal crime punishable by up to one year in jail and fines of up to $1,000.
Consider John Sturgeon’s story as told by Heritage Foundation scholar Paul Larkin:
For more than 15 years, John Sturgeon used a hovercraft to reach moose-hunting grounds in Alaska without any incident or objection. Then, one day in 2007, two National Park Service rangers told Sturgeon that he was on federal property and hovercraft were illegal.
What followed this was almost a decade of costly litigation that concerned “federal criminal regulations no one knows (riding a hovercraft is prohibited) in places where no one lives (Alaskan backcountry).”
With little to no input from or accountability to voters, bureaucrats have run amok with the power to create new crimes.
One account on the Twitter social media platform titled “A Crime a Day” features plenty more federal criminal regulations that deserve scrutiny from any administration that is intent on reducing the size, scope, and power of the administrative state. These include:
- Making it a crime to sell mixed nuts if the nuts pictured on the label aren’t in decreasing weight order (21 USC §333 & 21 CFR §164.110(f)).
- Making it a federal crime to let small cigars leave the cigar factory unless they’re labeled “small” or “little” (26 USC §5762 & 27 CFR §41.73).
- Making it a crime for amateur radio operators to sell amateur radio equipment, and using amateur radio too often (47 USC §502 & 47 CFR §97.113).
- Making it a federal crime for the operator of a wharf to let his longshoremen use common drinking cups (33 USC §941(f) & 29 CFR §1918.95(b)(3)).
As these provisions convey, there are key differences between regulations and criminal statutes that must not be overlooked.
John Malcolm, director of The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, has previously written:
Criminal laws are meant to enforce a commonly accepted moral code backed by the full force and authority of the government. Regulations, on the other hand, are meant to establish rules of the road in a variety of areas designed to curb excesses and to address consequences in a complex, rapidly evolving, highly industrialized society, with penalties attached for violations of those rules.
Allowing bureaucrats to enforce policy agendas with criminal penalties, and thus to create crimes that neither Congress nor the public likely ever imagined or intended, can have serious consequences. Malcolm continues:
While people often debate whether our society is overregulated, regardless of one’s views on that subject, it is important to recognize that there is a significant difference between regulations that carry civil or administrative penalties for violations and regulations that carry criminal penalties for violations. Individuals caught up in the latter may find themselves deprived of their liberty and stripped of their right to vote, to sit on a jury, and to possess a firearm, among other penalties that simply do not apply when someone violates a regulation that carries only civil or administrative penalties.
Experience shows that swift and certain civil sanctions are enough for agencies to deter and punish misconduct. In fact, even these are sometimes too severe.
Consider the example of Andy Johnson, a Wyoming welder. The Environmental Protection Agency fined him $16 million—$37,500 a day—for constructing a stock pond on his private 8-acre farm. Johnson described these penalties as “very threatening.”
Heritage scholars James Gattuso and Diane Katz report that the Obama administration “is responsible for an unparalleled expansion of the regulatory state, with the imposition of 229 major regulations since 2009 at a cost of $108 billion annually.”
Many regulations from previous administrations can and should be reviewed by a new administration seeking meaningful deregulation.
Yet “many of the worst effects” of overregulation, write Gattuso and Katz, such as “the loss of freedom and opportunity,” are greatest where violating an arcane regulation can be met with jail time, criminal fines, and all of the consequences that come with criminal prosecution and conviction.
So long as the Trump administration is looking for regulations to axe, officials in the Justice Department, federal agencies, and Congress should work together to strike as many regulatory crimes as possible.
