A question raised, but not answered — since the defendant didn’t argue it — in Judge Neil Gorsuch’s characteristically scholarly opinion in United States v. Baldwin (10th Cir. Feb. 18, 2014). I know that some people disagree, but I think it’s a useful service when judges flag these issues, and alert lawyers that this is something that bears considering, even if the issues weren’t pressed in the particular case (some paragraph breaks added):

Deep in the Code of Federal Regulations, in the part titled “Public Contracts and Property Management,” lie two small provisions that would be easy to overlook were it not for disputes like this one. The first says “[p]ersons in and on [Federal] property must at all times comply … with the lawful direction of Federal police officers and other authorized individuals.” 41 C.F.R. § 102–74.385. The second adds “[a]ll persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that … impedes or disrupts the performance of official duties by Government employees.” Id. § 102–74.390. After trial, Charles Baldwin found himself criminally convicted for violating both….

The trouble began when Mr. Baldwin drove out of the Denver Federal Center at his workday’s end. While still on the Federal Center grounds, Commander Kevin Lundy of the Federal Protective Service stopped Mr. Baldwin’s truck. Commander Lundy did this because he’d seen Mr. Baldwin speeding and swerving to avoid a bicyclist, and he wanted to issue a warning.

But before Commander Lundy could finish the warning Mr. Baldwin drove off, ignoring shouted commands to stop. In response, Commander Lundy took to his police car and followed Mr. Baldwin off the Federal Center’s grounds, stopped him again, and asked for his driver’s license, registration, and proof of insurance. According to Commander Lundy, Mr. Baldwin refused to comply and had to be forced from his vehicle and restrained with handcuffs. At the end of it all, Commander Lundy issued various tickets and allowed Mr. Baldwin to go on his way.

After a bench trial before a federal magistrate judge, the court convicted Mr. Baldwin of three offenses. Two of these offenses — failing to comply with “the lawful direction of [a] Federal police officer[]” and “imped[ing] or disrupt[ing]” the performance of a government employee’s official duties — were premised on federal regulations 41 C.F.R. § 102–74.385 and 41 C.F.R. § 102–74.390(c)….

Another section of the same regulatory “subpart” expressly provides that the very sections Mr. Baldwin violated can be enforced through criminal sanctions: “A person found guilty of violating any rule or regulation in this subpart … shall be … imprisoned for not more than 30 days,” subject to fines as prescribed by “title 18 of the United States Code,” or both. Id. § 102–74.450. Title 18, in turn, indicates that fines for crimes with a maximum term of imprisonment of 30 days are usually limited to no more than $5,000.

By what authority is the Executive permitted to criminalize conduct and impose jail terms in administrative regulations buried deep within the Code of Federal Regulations? Normally we don’t think of regulatory agencies as entitled to announce new crimes by fiat. But with some scratching around we see that Congress did expressly authorize first the General Services Administration and then the Department of Homeland Security to establish regulations “for the protection and administration of property owned or occupied by the Federal Government” and to prescribe “reasonable” penalties of “not more than 30 days” in prison and fines in the amounts allowed by title 18. See 40 U.S.C. § 1315(c). So it is that the regulation at issue before us can claim at least some legislative pedigree, some measure of congressional authorization.

Still there’s no question the arrangement bears its curiosities. Can Congress so freely delegate the core legislative business of writing criminal offenses to unelected property managers at GSA? Might this arrangement, though arrived at with Congress’s assent, still blur the line between the Legislative and Executive functions assigned to separate departments by our Constitution? Cf. Touby v. United States, 500 U.S. 160, 165–66 (1991) (admitting “[o]ur cases are not entirely clear as to whether more specific guidance is in fact required” when Congress is delegating authority “to promulgate regulations that contemplate criminal sanctions”); Wayne R. LaFave, Criminal Law § 2.6(a), at 131 & nn. 6–7 (5th ed.2010).

Thanks to this and many other similar and similarly generous congressional delegations, the Code of Federal Regulations today finds itself crowded with so many “crimes” that scholars actually debate their number. See, e.g., John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L.Rev. 193, 216 (1991) (“By one estimate, there are over 300,000 federal regulations that may be enforced criminally.”); Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over–Federalization of Criminal Law, 62 Emory L.J. 1, 28 (2012) (“An enormous number of new regulatory crimes were enacted in the period 1980–2011, so many that we were unable to count even a fraction of them….”). And quite apart from the separation of powers questions these arrangements pose, what about the “reasonableness” limitation found in the specific delegation before us? In the statute at issue here, Congress says agency officials may prescribe only “reasonable” criminal penalties within the limits it has prescribed (30 days in prison, usually no more than $5,000 in fines). Who’s to say what in that range is reasonable, and by what measure?

In the end, these curiosities turn out to be no more than side shows in our case. Mr. Baldwin doesn’t argue that the arrangement before us represents a constitutionally excessive delegation of legislative authority. He doesn’t argue that the regulations or the penalties they impose are themselves “unreasonable” or otherwise invalid. So it is that in this case all these questions float by the board, left for others to encounter and resolve in the future….

Thanks to Rich Orman for the pointer.