President Targets Hidden Criminal Traps in Federal Regulations for Reform
Published Date: 5/14/2025
Presidential Document
Summary
The government is cutting back on confusing and unfair criminal rules hidden in federal regulations that can trap everyday people. From now on, only those who knowingly break important rules and cause real harm will face criminal charges, while others will get civil penalties instead. This change helps regular folks avoid surprise criminal trouble and aims to make the law clearer and fairer starting right away.
Analyzed Economic Effects
8 provisions identified: 7 benefits, 1 costs, 0 mixed.
Criminal Charges Only for Knowing Harm
The order directs that criminal prosecution for regulatory violations should focus on people who knew (or reasonably should have known) their conduct was unlawful and who caused or risked substantial public harm. Agencies are told that criminal enforcement of regulatory offenses is generally disfavored.
Enforcement Discouraged for Unlisted Offenses
The order strongly discourages criminal enforcement of any criminal regulatory offense that is not included in an agency's public report. Agencies and the Attorney General should consider whether an offense is listed before making referrals or initiating criminal proceedings.
Strict Liability Criminal Rules Discouraged
The order states that strict liability regulatory crimes are "generally disfavored." Agencies should consider civil or administrative enforcement instead of criminal penalties for strict liability offenses, and treat proposed strict-liability criminal rules as "significant regulatory actions."
Agencies Must List Criminal Regulatory Offenses
Each agency must provide OMB, within 365 days of the order, a list of all criminal regulatory offenses it enforces and, for each, the range of potential criminal penalties and the applicable mens rea standard. Agencies must post that report on their webpages and update it at least once a year.
Rulemaking Must State Criminal Status and Mens Rea
After this order, notices of proposed rulemaking and final rules that could be criminally enforced should include a statement identifying the rule as a criminal regulatory offense and the authorizing statute. The regulatory text of such rules must explicitly state the mens rea required for each element, with citations.
Agencies Must Propose Default Mens Rea Standards
Agency heads must examine whether they can adopt a background mens rea standard that applies unless a regulation states otherwise. Within 30 days after submitting the Sec. 4(a) report, each agency must submit to OMB a report assessing mens rea standards and, if possible, a plan to adopt a generally applicable background mens rea standard and justifications for any deviations.
Guidance on When to Refer Cases to DOJ
Within 45 days of the order, agencies should publish Federal Register guidance describing plans for addressing criminally liable regulatory offenses. Guidance must say agencies should consider factors such as harm or risk of harm, potential gain to the putative defendant, whether the defendant had specialized knowledge or licensing, and evidence of the defendant's awareness of unlawfulness before referring cases to DOJ.
Immigration and National Security Are Excluded
The order does not apply to enforcement of immigration laws or to enforcement of laws or regulations related to national security or defense.
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Key Dates
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