Fighting Overcriminalization in Federal Regulations

5/9/2025

Executive Orders

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Action Summary

Purpose: Address excessive federal regulations that create unintentional criminal offenses affecting everyday Americans, while preventing abuse that privileges large corporations over individuals.
Policy Highlights:
- Criminal enforcement of regulatory offenses is discouraged unless the defendant knowingly violated the regulation causing significant harm.
- Strict liability offenses are generally disfavored, with an emphasis on civil or administrative enforcement where possible.
- Agencies must clearly define the conduct, authorizing statutes, and applicable mens rea standards for criminal regulatory offenses.
Definitions:
- Agency: As defined in section 105 of title 5, U.S. Code.
- Criminal regulatory offense: A federal regulation that carries criminal penalties.
- Mens rea: The legally required state of mind for conviction.
Reporting Requirements:
- Within 365 days, each agency (in consultation with the Attorney General) must report all criminal regulatory offenses, their penalties, and related mens rea standards to OMB and publicly post the report.
- Agencies must update the report at least annually and use it to guide decisions on criminal referrals.
Regulatory Transparency:
- Future notices of proposed rulemaking (NPRMs) and final rules must clearly state if a violation constitutes a criminal regulatory offense and include reference to the authorizing statute and specific mens rea requirements.
- Any strict liability offense proposed or finalized must undergo review as a significant regulatory action.
Default Mens Rea Standard:
- Agencies are to examine their statutory authority and, in consultation with the Attorney General, determine a default background mens rea standard unless a specific regulation provides otherwise.
- A report assessing current mens rea standards and proposing possible changes is required within 30 days of submitting the initial report.
Agency Guidance on Criminal Enforcement:
- Agencies must publish guidance within 45 days outlining factors such as harm caused, potential gains, specialized knowledge, and awareness of law when deciding on criminal referrals to the Department of Justice.
Exclusions: The order does not apply to immigration enforcement or regulatory actions related to national security and defense.
General Provisions:
- Affirms that the order does not impair existing agency authorities or the roles of heads of agencies and the OMB.
- Implementation is subject to applicable law and appropriations, and does not create enforceable rights against the United States.

Risks & Considerations

The executive order aims to reduce the criminalization of regulatory offenses, which could lead to a decrease in the enforcement of certain regulations. This may impact compliance and enforcement strategies at Vanderbilt University, particularly in areas where federal regulations are critical.
There is a potential risk that the reduction in criminal enforcement could lead to increased non-compliance with regulations, which might affect research and operational standards at the university.
The focus on mens rea and the disfavoring of strict liability offenses could necessitate a review of current compliance programs to ensure they align with the new standards and expectations set by federal agencies.
Vanderbilt University may need to monitor changes in regulatory enforcement closely, as these could affect funding, research opportunities, and partnerships with federal agencies.

Impacted Programs

Office of General Counsel at Vanderbilt may need to reassess legal strategies and compliance frameworks to align with the new regulatory landscape.
Research Compliance Office might need to update its policies and training programs to reflect changes in the enforcement of federal regulations.
The Office of Sponsored Programs could be impacted by changes in how federal agencies enforce regulations related to research funding and grants.
Vanderbilt’s partnerships with federal agencies may require reevaluation to ensure continued compliance and alignment with new regulatory expectations.

Financial Impact

The reduction in criminal enforcement of regulatory offenses could lead to changes in funding opportunities, particularly if federal agencies shift their focus to civil enforcement mechanisms.
Vanderbilt University might experience changes in its risk management and compliance costs, as adjustments to align with new regulatory standards may be necessary.
There may be opportunities for Vanderbilt to engage in research and policy development related to regulatory reform and compliance, potentially attracting new funding and collaboration opportunities.
Changes in the regulatory environment could impact the university’s ability to secure federal grants and contracts, necessitating strategic adjustments in grant application processes.

Relevance Score: 3 (The order presents moderate risks involving compliance and potential changes in regulatory enforcement that could impact university operations.)

Key Actions

Office of Legal Affairs should review the executive order to assess its implications on Vanderbilt’s compliance with federal regulations. This includes identifying any criminal regulatory offenses that may affect the university and ensuring that all relevant departments are informed of these changes.
Vanderbilt’s Compliance Office should establish a task force to monitor updates to the Code of Federal Regulations and ensure that the university’s policies align with the new requirements, particularly regarding the mens rea standards for criminal regulatory offenses.
Research and Innovation Office should evaluate the potential impact of the executive order on research activities, especially those involving federal funding, to ensure compliance with any new regulatory requirements.
Department of Political Science could conduct research on the broader implications of the executive order on regulatory practices and its potential effects on higher education institutions. This research can provide valuable insights for policymakers and the academic community.
Vanderbilt’s Federal Relations Office should engage with federal agencies to stay informed about any changes in regulatory enforcement that could impact the university. This proactive approach will help mitigate risks associated with non-compliance.

Opportunities

The executive order presents an opportunity for Vanderbilt’s Law School to develop courses or seminars focused on regulatory law and compliance, providing students with a deeper understanding of the complexities of federal regulations and their enforcement.
Vanderbilt can leverage its expertise in legal and regulatory studies to offer consulting services to other institutions or organizations seeking to navigate the changes brought about by the executive order.
The emphasis on regulatory transparency aligns with Vanderbilt’s commitment to ethical practices and could enhance the university’s reputation as a leader in promoting compliance and accountability in higher education.

Relevance Score: 3 (The order requires some adjustments to processes or procedures to ensure compliance with new regulatory standards.)

Average Relevance Score: 3.8

Timeline for Implementation

Within 365 days of May 9, 2025 – The head of each agency must submit a report on all criminal regulatory offenses and publicly post it.
Within 45 days of May 9, 2025 – Each agency should publish guidance in the Federal Register regarding its plan for addressing criminally liable regulatory offenses.
Within 30 days after the submission of the report – In consultation with the Attorney General, each agency must submit a follow-up report on assessing and proposing any changes to the applicable mens rea standards.

The shortest fixed deadline anchored to the date of the order is 45 days, which falls in the 30–59 days range.

Relevance Score: 4

Impacted Government Organizations

Department of Justice (DOJ): Tasked with consulting on enforcement decisions and determining when criminal regulatory offenses warrant prosecution, ensuring that only willful or knowingly unlawful actions are prosecuted.
Office of Management and Budget (OMB): Receives mandatory reports from all agencies on criminal regulatory offenses, and monitors agency compliance with the new reporting requirements.
Office of Information and Regulatory Affairs (OIRA): Responsible for reviewing any proposed or final rules that include strict liability offenses as “significant regulatory actions” under Executive Order 12866, thus playing a key role in regulatory transparency and oversight.
Executive Agencies: All executive branch agencies that promulgate and enforce federal regulations are affected by the order. They are required to compile and update public reports on criminal regulatory offenses, adjust enforcement practices, and ensure that criminal prosecutions are reserved for cases involving a knowing violation, with the exception of those addressing immigration enforcement or national security functions.

Relevance Score: 5 (This order applies broadly across nearly the entire executive branch, affecting multiple agencies and key oversight bodies.)

Responsible Officials

Head of each Federal Agency – Responsible for submitting and periodically updating the report on criminal regulatory offenses, posting it publicly, and issuing agency guidance on enforcement practices.
Attorney General – Consulted by agency heads in crafting the reports, determining applicable mens rea standards, and guiding decisions on criminal enforcement referrals.
Director of the Office of Management and Budget (OMB) – Receives the reports from agency heads and coordinates oversight of the agencies’ compliance with the order.
Administrator of the Office of Information and Regulatory Affairs – Reviews proposed or final rules involving strict liability offenses classified as “significant regulatory actions” under the order.

Relevance Score: 4 (Directives significantly impact agency heads and other senior officials responsible for overall regulatory policy and enforcement.)