Lawmakers face a constitutional duty to notify the public of all conduct that they define as criminal. In turn, the public is held to the dubious presumption that they know all criminal law. Yet no one knows all of the federal criminal laws and regulations, how many exist today, or even exactly where to find them. Congress has tried to remedy the problem by proposing that the Executive Branch provide a list of all federal crimes. So far, no such law has been passed.
Congress may wish to change course slightly. It can direct the Office of Information and Regulatory Affairs (OIRA), a component of the White House Office of Management and Budget (OMB), to list all federal crimes on a government website. Or the executive branch can start the list by having the heads of all executive departments and agencies identify all regulations within their purview that carry criminal penalties and then publish that information in one online database. That would ameliorate some of the problems of overcriminalization by giving a “fair warning” of the contents of the criminal code.
Congress incorrectly presumes (to the extent that Congress gives the matter any thought at all) that publishing a statute in the U.S. Code or a regulation in the Federal Register gives the public sufficient notice of its commands. Justice Antonin Scalia once wrote that:
[I]n most cases the proposition that the words of the United States Code or the Statutes at Large give adequate notice to the citizen is something of a fiction…albeit one required in any system of law; but necessary fiction descends to needless farce when the public is charged even with knowledge of Committee Reports.
The same point can be made about the public’s knowledge of federal regulations. As Justice Lewis Powell once noted, it “is totally unrealistic to assume that more than a fraction of the persons and entities affected by a regulation…would have knowledge of its promulgation or familiarity with or access to the Federal Register.” Further descent is needed to find, untangle, and understand the mare’s nest of federal regulatory crimes.
Consider this: The Library of Congress compiles data from the House and Senate to publish all committee reports in a readily searchable online database. Its staff maintains that information along with 70 million manuscripts, 38 million books and printed materials, 14 million photographs, 8.1 million pieces of sheet music, 5.5 million maps, and 3.6 million recordings. Yet even they cannot say how many federal crimes exist or precisely where they can be read.
In the early 1980s, officials in the U.S. Department of Justice tried for two years to identify all federal crimes, only to abandon the effort after finding 3,000 of them. A senior Justice Department official concluded that “[y]ou will have died and [been] resurrected three times” before you discover them all. As other groups tried in the 1990s, one found 10,000 federal regulations that carry criminal or civil penalties; another, an estimated “300,000 federal regulations that may be enforced criminally.” However long it may be, the government should once again accept its moral and constitutional duty to produce a list for the public’s review.
The Founders of the Pennsylvania colony not only mandated that their criminal laws be hung on display in all public courts and at provincial Council, but also required that they be read annually “at the opening of every provincial Council and General Assembly, and court of justice.” Can our imagination for new crimes have grown so powerful that we cannot use modern technologies—in particular, the Justice Department’s Internet website—to accomplish what colonists did routinely in the 17th century?
Some Members of Congress consider this breakdown of due process dire enough to do something about it. In January 2014, the Senate Judiciary Committee voted to send to the Senate floor the Smarter Sentencing Act of 2013. That bill would have tasked the heads of executive agencies to do the following:
- Within one year, report a list of all federal criminal offenses issued by each agency, the authorized punishment for a violation of each offense, the mens rea elements required by each offense, and the number of cases that the agency referred to the Justice Department for prosecution for each offense within the past 15 years.
- Within two years, publish a freely accessible list of those offenses online.
Congress failed to enact those requirements into law, although virtually identical provisions appeared in the subsequent Congress and may reappear again in 2017.
If Congress fails to pass those measures, it has other means of realizing those goals. Specifically, it could sever those reporting requirements from the rest of any omnibus criminal justice bill and move to enact them as stand-alone measures. Or it could require OIRA to see to the compilation of such a compendium by the heads of executive and independent agencies.
Congress created OIRA in 1980, and President Ronald Reagan and his successors have used OIRA as the executive branch component responsible for reviewing all proposed regulations. Congress could easily “lay [that] burden down” there. Doing so would implement the Senate Judiciary Committee’s attempt to create a list of regulatory offenses by virtue of OIRA’s responsibility for regulatory review. It would also further President Donald Trump’s executive order requiring a review of existing regulations and elimination of unnecessary rules as new ones are issued.
OMB has already twice proven that it is up to the task. In 2006, Congress enacted the Federal Funding Accountability and Transparency Act telling OMB “to create an extensive search engine and database accessible to the public,” one that “provides information about most government grants, loans, and contracts in excess of $25,000.” OMB created a single website, www.USAspending.gov, to account for trillions of dollars in financial awards, including their amounts, purposes, and recipient organizations. OMB has also partnered with government agencies—both independent and executive—to create two separate websites that provide a wealth of information about federal regulations. By making grant information “available to the public via a single, searchable website,” Congress intended “to empower every American with the ability to hold the government accountable for each spending decision” and, by bringing data on proposed and final regulations to the public, sought to lower the barriers to meaningful citizen participation in regulatory processes.
Yet none of those resources inform the public of all the rules that may impose criminal liability. That crucial detail has been lost in the fray. Congress can remedy that by tasking OMB to work with other agencies to give regulatory offenses similar treatment.
Alternatively, the President could order that this project be accomplished without any need for new legislation. The President could order the OIRA Administrator to ensure that each executive branch agency submits all regulations within its purview that carry criminal penalties, or that could be used in a criminal prosecution, and then publish that list in an accessible format. All of OIRA’s regulatory review activities “are based upon a recognition that, like any other outside review, executive oversight can make regulation more reasoned by forcing articulation of the basis of proposals.”
Listing regulatory offenses within the executive branch would force its officers to confront directly the ways that they may have misused the criminal sanction to undermine its moral credibility. They, Congress, and the public would have the opportunity to decide whether various rules merit criminal penalties and, in turn, whether the agencies have earned a continuation of their delegated legislative authority to define crimes.
“All are entitled to be informed as to what the State commands or forbids.” That is one entitlement that Congress has struggled to supply, although it is one that the Constitution requires. Congress should continue its efforts to meet that demand. The White House can start the project by directing the heads of executive agencies, with supervision and review within OMB, to compile a list of all of their regulations that carry criminal penalties. Either course would ameliorate the problems that overcriminalization imposes on society.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. John-Michael Seibler is a Legal Fellow in the Meese Center.