President Issues Executive Order to Rein in Regulatory Overcriminalization

By Luke Ryan  |  July 2025

President Trump signed an executive order on May 9, 2025, aimed at curbing the overcriminalization of federal regulatory violations. The order, titled “Fighting Overcriminalization in Federal Regulations,” sets forth new requirements for transparency, limits on strict liability, and a stronger mens rea intent standard in federal criminal regulatory enforcement.

I.                    Background:  The Creep of Criminal Liability Into Regulatory Law

The Code of Federal Regulations (CFR) now spans more than 175,000 pages and over 48,000 sections, many of which carry criminal penalties for violations. Critics have long argued that this regulatory sprawl has created a system where even well-meaning individuals can become criminally liable for conduct they had no reason to believe was unlawful.

The problem is exacerbated by the proliferation of strict liability offenses—regulatory violations that carry criminal penalties despite no requirement to prove intent or knowledge. As the executive order notes, even the Department of Justice cannot say with certainty how many regulatory crimes exist, with some estimates suggesting the number reaches into the hundreds of thousands.

II.                  Key Provisions of the Executive Order

a.      Policy Shift:  Criminal Enforcement Disfavored

The order declares that criminal prosecution of regulatory violations should be the exception, not the norm. It emphasizes that enforcement should be reserved for those who knowingly flout legal requirements, especially when their actions cause or risk substantial harm. Strict liability offenses are explicitly deemed “generally disfavored,” citing the Supreme Court’s opinion in United States v. United States Gypsum Co., 438 U.S. 422 (1978).

b.      Transparency Through Public Reporting

Each executive agency must compile and publish a list of every regulation it enforces that carries potential criminal penalties. The agencies must also disclose the mens rea standard for each offense and the associated penalties. This reports must occur annually and be publicly posted on the agency’s website. Enforcement of criminal regulatory offenses not included in the list is strongly discouraged.

c.      Mens Rea Requirements and Civil Alternatives

Future rulemakings must clearly identify any criminal implications and explicitly state the mens rea standard—i.e., what level of intent or knowledge is required to violate the rule. Where feasible, agencies are encouraged to pursue civil or administrative remedies instead of criminal prosecution, especially for strict liability offenses. Any new strict liability regulation must now undergo heightened review as a “significant regulatory action.”

d.      Default Intent Standards and Review

Agencies are also required to evaluate whether a general intent standard can be adopted across their regulations and, where possible, must justify any deviation from this default.

e.      Referral Standards for Criminal Prosecution

Within 45 days, each agency must issue guidance outlining how it will decide whether to refer potential violations for criminal prosecution. Factors include the extent of harm, the sophistication of the violator, and whether there’s any indication the violator knew their conduct was unlawful.

III.                Why This Matters

The order marks a notable pivot toward restraint in the criminal enforcement of regulatory violations—an area where both progressives and conservatives have raised concerns in recent years. While large corporations can often afford compliance departments and in-house counsel, ordinary individuals and small businesses face the risk of unknowingly triggering criminal penalties for highly technical violations.

In practical terms, the executive order could lead to a reclassification of many offenses from criminal to civil, a reduction in strict liability prosecutions, and a regulatory environment where intent plays a central role in enforcement.

The order also aligns with the Supreme Court’s recent decision in Jarkesy v. SEC, 603 U.S. 109 (2024), that curtailed certain agency adjudications on constitutional grounds, reinforcing the trend toward limiting unchecked administrative power.

IV.               Limitations and Scope

The executive order explicitly excludes immigration and national security enforcement from its scope. It also does not create new enforceable legal rights but instructs agencies on internal policy and enforcement discretion, subject to existing statutes and funding.

V.                  Conclusion

The new executive order on regulatory overcriminalization represents a significant development in administrative and criminal law. By emphasizing transparency, intent, and fairness, the order seeks to ensure that only willful and harmful violations of federal regulations are treated as crimes.