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PaperclipPerfector  1d ago (text post)   6077 thread views

Culture War Roundup for the week of May 12, 2025

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New executive order just dropped.

The United States is drastically overregulated. The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages — far more than any citizen can possibly read, let alone fully understand. The situation has become so dire that no one -– likely including those charged with enforcing our criminal laws at the Department of Justice — knows how many separate criminal offenses are contained in the Code of Federal Regulations, with at least one source estimating hundreds of thousands of such crimes. Many of these regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime.
[...]
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. [...] Criminal enforcement of criminal regulatory offenses is disfavored. [...] Strict liability offenses are 'generally disfavored.' [...] Criminal enforcement of any criminal regulatory offense not identified in the report [...] is strongly discouraged.
[...]
Within 365 days of the date of this order, the head of each agency, in consultation with the Attorney General, shall provide to the Director of the Office of Management and Budget (OMB) a report containing [...] a list of all criminal regulatory offenses enforceable by the agency or the Department of Justice. [...] Following issuance of this order, all future notices of proposed rulemaking (NPRMs) and final rules published in the Federal Register, the violation of which may constitute criminal regulatory offenses, should include a statement identifying that the rule or proposed rule is a criminal regulatory offense and the authorizing statute.

This seems, on first glance, wildly better by my libertarian sensibilities than anything I ever expected out of the Trump administration. I am slightly in shock, which is not unusual following an EO, but this time it is a good shock, which is unusual.

So a couple of things

  1. Anyone want to blackpill me on why this is Bad Actually because strict liability regulatory crimes are actually a major load-bearing part of how our legal system works and without it the situation will devolve to anarchy in the streets?
  2. Did an LLM cowrite this EO? I notice a mixture of em-dashes and double-n-dashes, which is not a pattern I normally see in entirely-human-written text. Not that I can complain about the outcome, if so.

Am I wrong in reading there seems to be reasonable wiggle room built into the EO?

Sec. 6. Default Mens Rea for Criminal Regulatory Offenses. (a) The head of each agency, in consultation with the Attorney General, shall examine the agency’s statutory authorities and determine whether there is authority to adopt a background mens rea standard for criminal regulatory offenses that applies unless a specific regulation states an alternative mens rea.

There's built in discretion to maaaybe adopt a different mens rea standard for criminal regulatory offenses. One hopes that the AG only accepts reasonable defenses of different standards of criminal enforcement, but there are probably many reasonable, wiggly exceptions.

"Excuse me, AG Bondi, in 98% of cases the US Forest Service targets Big Criminal Forestry-- these jerks are always finding ways to wiggle out of their illegal logging. If we lose strict liability standards for this enforcement they will claim ignorance every time, in every forest, and likely get away with their illegal logging. By the way, Mrs. Bondi, I have it on record we protested this. We aren't going to eat this story when the time comes."

Apply that to less reasonable, but similarly wiggly enforcement. Requiring a defense of different standards is good, but there's got to be thousands(?*) of these, and a safe political decision would be to defer to the agency if they request a different standard. This EO wasn't blasted out with political vigor. It was dumped on a Friday with barely a peep, so there may not be a big Trump backing to hide behind any unpopular decisions.

I may just be negative. This seems good, generally. If done intelligently, better. There are likely real trade offs in losing flexibility with higher burdens for enforcement, but still seems amenable.

** Many, many thousands. Hundreds of thousands. I forgot we don't actually know-- which is why step one makes agencies plainly list them. Yuge!

** Many, many thousands. Hundreds of thousands. I forgot we don't actually know-- which is why step one makes agencies plainly list them. Yuge!

Federal regulations are codified, although you are probably right that nobody has explicitly tagged the criminal provisions. DOGE would do this by having an AI parse the CFR, and it would work.

DOGE would do this by having an AI parse the CFR, and it would work...

...about as well as Full Self Driving - good enough for you to put your guard down, and then drive you right into a truck it misidentified as a bridge.

Is full self driving more dangerous per mile than having a human drive? Otherwise it might be the case that having an AI parse the CFR would work better across the board than having humans do it, but would fail a few times in highly surprising and attention-grabbing ways.

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