Fighting Overcriminalization in Federal Regulations
The order requires every federal agency to publicly catalog all criminally enforceable regulations, discourages prosecution of strict-liability regulatory offenses, and mandates that future rules explicitly state the mental-intent standard required for a criminal conviction.
It addresses a situation where the sheer volume of federal regulatory crimes — estimated at hundreds of thousands — means ordinary Americans can face criminal penalties for unknowingly violating rules they had no realistic way to learn about.
What this order does
What it orders
The order directs every federal agency to compile, post publicly, and annually update a complete list of all criminal regulatory offenses it can enforce, including potential penalties and the applicable mental-intent (mens rea) standard for each. It establishes a national policy that strict-liability criminal regulatory offenses — where prosecutors need not prove the defendant knew they were breaking the law — are disfavored, and that agencies should prefer civil or administrative enforcement in those cases. It requires future proposed and final rules carrying criminal consequences to identify themselves as such and state explicit mens rea requirements. Within 45 days, agencies must publish Federal Register guidance setting out the factors they will weigh when deciding whether to refer alleged violations for criminal prosecution.
The order also directs each agency, within 30 days after filing its main inventory report, to assess its existing mens rea standards and submit a reform plan to OMB. Criminal enforcement of any regulatory offense not included in an agency's public list is strongly discouraged. The order explicitly exempts immigration enforcement and national security or defense regulations from all of its requirements.
Who it affects
All federal executive agencies and the Department of Justice, which must catalog and reform criminal regulatory enforcement practices. Individuals and businesses that currently face — or could face — criminal prosecution for violating federal regulations, including small businesses without large legal teams able to navigate complex regulatory schemes.
Why it matters
Individuals who unknowingly violate obscure regulations gain a layer of protection because criminal enforcement of offenses they had no reason to know about is now formally discouraged. Prosecutors at DOJ face new policy guidance requiring them to check public agency lists before pursuing charges, and future rules must give clearer notice of criminal exposure.
What must happen and when
How the order is supposed to work
Agencies have 365 days to file inventory reports with OMB and post them publicly, then must update them annually. Within 30 days after that deadline, they submit mens rea reform plans to OMB. Within 45 days of signing, they must post referral-factor guidance in the Federal Register. Strict-liability criminal rules proposed after the order takes effect automatically trigger the significant-regulatory-action review process under EO 12866. Enforcement teeth are limited — unlisted offenses are "strongly discouraged," not legally barred — and no private right of action is created, so defendants cannot sue based on the order's policies.
Actions and deadlines
- Publish Federal Register guidance describing the agency's plan for criminal referrals of regulatory offenses
- Submit to OMB Director and publicly post a complete list of criminal regulatory offenses, penalties, and mens rea standards
- Submit to OMB Director a report assessing existing mens rea standards and a plan for adopting a default mens rea standard
- Annually update the public report on criminal regulatory offenses
- Include criminal offense identification and mens rea statements in all future NPRMs and final rules with criminal consequences