Overshadowed by reports on President Donald Trump’s Middle East visit, the election of a new pope, and a trade agreement with the United Kingdom, his latest Executive Order — “Fighting Overcriminalization in Federal Regulations” — went largely unnoticed. Yet its significance cannot be overstated. It might be the only thing standing between you and criminal charges for something you had no idea was a crime.
The May 9 Executive Order begins by declaring that the U.S. is “drastically overregulated,” noting that the current Code of Federal Regulations contains “over 48,000 sections” and spans “over 175,000 pages.” The EO seeks to address the growing concern over this vast and complex web of regulations, many of which carry criminal penalties that most ordinary Americans are unaware of.
It criticizes the current system for enabling criminal prosecution without clear intent, or “mens rea.”
The order describes the current regulatory environment as “absurd and unjust” and claims 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 with 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.”
Its purpose is to protect Americans from being criminalized for unknowingly violating obscure or overly technical regulations, while still allowing for accountability in cases of willful or harmful misconduct.
The order calls for significant reform of regulatory enforcement and outlines a detailed plan to achieve it. In short, the head of each agency must submit — and publicly disclose — an annual report to the Office of Management and Budget detailing “all criminal regulatory offenses enforceable by the agency or the Department of Justice.”
For everyday Americans — and especially for entrepreneurs — having access to such a list could be a game-changer.
As widely followed anonymous internet lawyer “Cynical Publius” emphasized in a recent post on X, this executive order “is a big deal.” He explains its significance in layman’s terms:
Trump is forcing the federal government to spell out everything that is a crime under federal law. The other thing the EO does is to force the government to add a “mens rea” element to most of these “crimes”; i.e., you have to be aware of the fact that you are committing a crime in order for it to be a crime.Thus, if you decide to build a pond on your property and the EPA has some obscure regulation saying that is a crime, you would need to be aware of the criminal nature of the act before you did it in order to be guilty of anything.
He underscored the structural advantage enjoyed by large corporations, which are better equipped to navigate complex regulatory frameworks and exclude new competitors, often at the expense of ordinary Americans. According to Cynical Publius:
This is really important and is a theme I keep coming back to. Regulatory schemes like Dodd-Frank and the CFPB are created ostensibly to help the “little guy,” when in reality they create byzantine layers upon layers of compliance requirements that only mega-corporations can afford to navigate. Those sorts of laws are anti-competitive and hurt most of all the “little guy” they purport to help.
Critics of the order argue that it could allow criminals to evade prosecution by simply claiming ignorance of the law. In practice, however, cases would likely be adjudicated using a “reasonable person” standard. For instance, a large corporation with an in-house legal team would be held to a higher level of accountability than a sole proprietor, who cannot reasonably be expected to know the thousands of regulations that might apply to his business.
The following quote from Dr. Floyd Ferris — one of the antagonists in Ayn Rand’s 1957 classic Atlas Shrugged — underscores the need for this executive order.
There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be enforced nor objectively interpreted—and you create a nation of law-breakers—and then you cash in on guilt.
In other words, it’s unsurprising that, even in a busy news cycle, the legacy media largely ignored this story. They grasp that the implications are unfavorable to their interests.
Trump campaigned on ending the federal government’s regulatory assault on Americans and this executive order is a key step toward fulfilling that promise.
Elizabeth writes commentary for Legal Insurrection and The Washington Examiner. She is an academy fellow at The Heritage Foundation. Please follow Elizabeth on LinkedIn or X.
CLICK HERE FOR FULL VERSION OF THIS STORY