Mike Chase is an attorney in Hartford, Conn., and the author of the new book “How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender.”
It’s amazing that members of Congress are still called lawmakers. With all the media appearances and partisan bickering, who has the time to make law? For that, Congress has subcontracted the job out to employees in the executive branch. Sure, it goes against everything “Schoolhouse Rock” taught us about how laws are made, and it dictates an astounding array of rules, all the way down to the maximum allowable diameter for spaghetti (no more than 0.11 inches, if you were wondering). But the arrangement insulates the nation’s elected representatives from the accountability they so desperately seek to avoid.
The term “regulation” doesn’t quite capture the scope of the lawmaking power that Congress has ceded to dozens of executive-branch agencies and departments such as the Food and Drug Administration, the Internal Revenue Service and the Agriculture Department. These government offices issue thousands of pages of rules with the force of law. And while regulation is nothing new, the sheer volume of rules has grown at a shocking rate. Originally, Congress was only to pass legislation allowing bureaucrats to “fill up the details,” as Chief Justice John Marshall described the delegation process in Wayman v. Southard in 1825. But over the past half-century, delegation has amounted to the wholesale outsourcing of substantive lawmaking.
Given the untold thousands of federal regulations on the books, and the criminal penalties often attached to violations, most Americans are probably unaware of how easily they could get in trouble. For the past five years, I’ve been trying to shed some light by counting federal crimes, one each day, on a Twitter feed called @CrimeADay. I cover crimes such as falconers letting their falconry birds appear in movies that aren’t about falconry, egg handlers wearing jewelry to work and pretty much anyone bringing an unshucked ear of corn out of New York.
To state the problem simply: Congress has been so careless in giving lawmaking authority to federal agencies that in the process it has created an incoherent and largely accidental body of criminal law. Congress authorizes agencies to regulate entire categories of conduct while making it a crime — yes, a crime — to violate “any regulation” they make pursuant to that authority. Those agencies then issue thousands of rules, and Congress is all too happy not to pay attention.
Yes, protection of migratory birds is important, but violating any migratory bird regulation is a federal crime. Food safety is essential, but the law requires no criminal intent to convict someone of selling runny ketchup. Tax revenue is indispensable, but what if you brew 101 gallons of beer at home without paying the government? (A hundred gallons is all right for a single person; failure to pay tax on any more is punishable by up to five years in prison.)
Regulators probably aren’t trying to create inane crimes on purpose, and prosecutors probably aren’t terribly interested in charging people for them. But even good-faith efforts to protect wildlife, ensure safe food and ensure a healthy flow of tax revenue don’t justify careless criminalization. Blanket reliance on prosecutors to exercise appropriate discretion in all cases is also too risky — a sentiment that some in Congress can probably appreciate right about now.
But there is a potential for meaningful change. The Supreme Court is poised to decide at least one case that could rein in the crime-making power Congress may give to the executive branch. The case has some ugly background facts, but it turns on whether Congress gave the attorney general too much discretion in deciding whether to require certain sex offenders to register and to prosecute them if they don’t. At argument, both Justices Sonia Sotomayor and Neil M. Gorsuch expressed concern about Congress’s habit of giving the executive branch unguided authority to define criminal behavior. Gorsuch asked: “What’s vaguer than a blank check to the attorney general of the United States to determine who he’s going to prosecute?”
Of course, Congress can also act. “High crimes and misdemeanors” aside, if those in Congress truly fear a runaway executive, they should take more responsibility for defining regular crimes. More fundamentally, though, no person should be subject to criminal penalty unless lawmakers — the constitutional kind — have explicitly said they should.