Imagine going out to take your dog for a walk on the National Mall and ending up in handcuffs, all because your dog was not on a leash. This scenario sounds absurd in America. But it happened to Fox News commentator Dana Perino’s husband under the National Park Service’s regulations for the National Mall, which have criminal consequences.
The National Park Service is not an outlier. Across the federal government, federal agencies have seized a broad grant of power from Congress to write whatever regulations they deem “necessary” and back them with the power of criminal enforcement. These regulations are quietly passed through rule-making, where only the very most attentive of people would notice. The result is many people are regularly violating criminal laws that they do not even know exist.
To make matters worse, many of these regulatory crimes do not require that an individual know what they are doing is wrong. Our criminal law traditionally requires someone to have a “guilty mind.” But with many of these criminal laws, no such “mens rea,” or mental state, is required.
The problem is out of control. No one knows how many separate crimes there are, including the Department of Justice. Researchers have tried counting, with one 2019 effort identifying at least 5,199 statutory crimes. Regulatory crimes are orders of magnitude greater, with estimates of the number of regulatory crimes ranging from 100,000 to 300,000 separate offenses.
This is inconsistent with basic ideas of self-government and the intentions of those
