Just a week ago, I published a lengthy post in which I listed the numerous Trump executive orders that are making America stronger, safer, saner, and a place where normal people can live happy and prosperous lives. Since then, Trump has gone on to promote domestic production of critical medicines, transfer funds from illegal aliens to homeless veterans, and end the practice of having Americans subsidize cheap prescription medicines abroad

All those orders made headlines. What’s just creeping onto the radar, though, one of the most consequential, for Trump is protecting ordinary Americans from regulations that turn them into criminals.

The Executive Order is “Fighting Overcriminalization in Federal Regulations,” which the President signed on May 9. In it, he opens by stating the obvious:

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.

Image by Grok.

That is singing my song. As a lawyer, I found utterly appalling the regulations controlling clients’ activities, their wealth, and even their freedom—and this was true for both state (California) and federal regulations. During the Obamacare debate, I learned that one of the reasons that insurance in California was so expensive wasn’t the actual cost of healthcare; it was the 1,500 regulations controlling health insurers, compared to the “mere” 500 controlling insurers in Texas.

I’m in favor of some regulations. They make sense when it comes to protecting consumers from things about which they cannot be expected to have knowledge. For example, when I did a home remodel, having the town inspector make sure the contractor had correctly and safely raised my ceiling was a real benefit to me, because there was no way I could know for myself if the job was done right. It’s also nice to know that your doctor has passed a basic competency test.

However, as I discovered over the years, regulations often serve only as a trap for the unwary. You, an ordinary businessperson or homeowner, and your attorney, a generalist whom a friend recommended, are suddenly facing the might of the federal government, staffed with bureaucrats and lawyers who do absolutely nothing but study one regulatory area. Trump describes this situation as,

...absurd and unjust. 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 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.

In other words, the current system allows every bureaucrat to become Lavrentiy Beria, Stalin’s feared secret police chief: “Show me the man, and I’ll show you the crime.”

And there really are crimes, even though no legislator has passed on them. The executive order explains:

[M]any [regulations] carry potential criminal penalties for violations.  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.

This is weaponized government with a vengeance.

To address it, Trump has issued a new policy to control the executive branch of government. Moving forward, “Criminal enforcement of criminal regulatory offenses is disfavored.”

Under the new policy, the government should prosecute only those “who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm.” In other words, if regulations are going to criminalize behavior, there must be a criminal intent—a “mens rea”—to trigger a conviction, and a serious outcome harming the public welfare if the government doesn’t act.

This means that an ordinary person, doing ordinary things, will not suddenly find the federal government declaring that a pond on his property is a “water of the United States” and that he is required to pay tens of thousands of dollars for violating regulations controlling such waters or to take the case to the Supreme Court.

To help nail down this new standard, the order provides specific directives requiring agencies to identify regulations that carry criminal penalties and highlight that information for the public. They must also explain exactly what their standards are for referring violations for prosecution.

This is a great day for ordinary people whose Constitution should have been protecting them all along from living in a world that Lavrentiy Beria would have recognized and enjoyed.