“DID YOU REALLY THINK THAT WE WANT THOSE LAWS TO BE Observed? We Want Them Broken. You better get it straight that it is not a bunch of boy scouts you are up against — then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you had better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of lawbreakers — and then you cash in on guilt. Now that is the system, that is the game, once you understand it, you’ll be much easier to deal with.” Ayn Rand, Atlas Shrugged (1957, 25th Anniversary Ed. 1992) p. 411).
Piracy, smuggling, counterfeiting, and treason are the only federal crimes mentioned in the United States Constitution. How many federal crimes has Congress created?
The Saturday (January 22, 2022) Wall Street Journal published an editorial that stated: “In the 2019 United States Code, [the Heritage Foundation and George Mason University’s Mercatus Center] found 1,510 criminal sections. By examining some of those sections at random, they estimated that they encompass 5,199 crimes in total. The Heritage Foundation report notes that ‘there is no single place where any citizen can go to learn’ all federal criminal laws, and even if there were, some ‘are so vague that . . . no reasonable person could understand what they mean.’
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“But even when it comes to conduct everyone agrees should be criminal, the inexorable expansion of the Code has serious consequences for justice and federalism. The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.
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“Both political parties should recognize the risks of an ever-expanding roster of federal crimes, which invites abuse by prosecutors. How about a commitment by Congress to re-examine the necessity of an existing crime for every new one it creates?”
The Heritage Foundation and the Mercatus Center appear to have done a large part of the job for identifying obscure criminal statutes. But what about the Code of Federal Regulations (CFR)? The offices of U. S. Representatives and Senators have become, for most members, a sinecure; that is, a position of being paid for status, rather doing productive work. Congress has delegated broad powers in making regulations, even powers to criminalize conduct, to the various boards, commissions, and agencies created by a myriad of statutes. The so-called experts that run those organizations can declare citizens to become felons, without express Congressional approval, by criminalizing conduct of which they disapprove.
Much of the current abuses of federal criminal law involve the regulatory offenses that have no mens rea (criminal intent, knowledge, or recklessness) element. This appears to be against fundamental fairness and due process, but so far courts have been reluctant to rule the lack of such mens rea is fatal to a prosecution for violation of many of those regulatory offenses. There may be hope as the present composition of the Supreme Court seems to be in favor of reining in administrative fiat and executive ukase.
This writer believes There are two measures that would go a long way to ameliorate this situation. (1) Rewrite the Federal Criminal Code and put EVERY violation that calls for a fine or imprisonment in Title 18 of the United States Code, the present criminal code, where everyone can see and read it. If it is not in Title 18, it cannot be a crime. (2) Enact a statute (might take a Constitutional Amendment, but that is political heavy lifting), that makes it clear that NO criminal offense can be created by administrative fiat or executive order. Write (OK, email) you view to your Representative and Senator.
Note: for additional reading on this issue, recommend Three Felonies a Day by Harvey Silverglate (2009). Mr. Silverglate is a lawyer based in Massachusetts, who has extensive “white collar” criminal defense experience. Silverglate, along with University of Pennsylvania professor Alan Charles Kors, founded the Foundation for Individual Rights in Education (www.thefire.org), and organization that advocates for and defends students, faculty members, and other employees in free speech and expression issues (on both sides of the political spectrum).
Recent significant news.
If there was any doubt that the Democratic Party, at least in Arizona and probably in the rest of the country, is today led by fools, there is now proof. Thet Party censured Senator Krysten Sinema for not following its national leadership in getting rid of the filibuster — the requirement that it takes 60 Senators to bring a bill to the floor for a vote. They thus converted Sinema from a party pariah into a martyr.