Trump Signs Order Targeting ‘Overcriminalization’ in Federal Regulation

President Donald Trump signed an executive order on May 9 targeting what he called the overcriminalization of regulation across the United States.

The president said that many of the regulatory crimes are “strict liability” offences, privileging large corporations that have the means to obtain a legal team that can work around the regulations.

“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,” the order stated.

Within one year of signing the order, the heads of each agency and the attorney general are ordered to provide a report to the Director of the Office of Management and Budget. The report must contain a list of all enforceable criminal regulatory offences, the range of potential criminal penalties for a violation, and the applicable mens rea standard, referring to criminal intent.

That report will be updated at least once a year and made available online. Criminal enforcement of any offense not included in that report is then strongly discouraged.

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“Strict liability criminal regulatory offenses are disfavored,” the order stated. ”Any proposed or final criminal regulatory offense that includes a strict liability mens rea for the offense shall be treated as a ’significant regulatory action’ and submitted to the Administrator of the Office of Information and Regulatory Affairs for the review applicable to significant regulatory actions under Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), or any successor process.”

The order also called for more transparency, demanding that all future notices for proposed rule-making and final rules be published in the Federal Register, including the criminal violation and the authorizing statute, in consultation with the Justice Department.

The heads of each agency are also ordered to publish guidance in the Federal Register on their plans to address criminal liability regulatory offenses within 45 days of the order.

The agency should clarify that when deciding to refer alleged violations of criminal regulatory offences to the Justice Department, they should consider factors such as the harm or risk of harm, whether the defendant had knowledge related to the rule as well as any evidence that they were aware of their lawful conduct, and the potential the defendant could gain from the offense.