Criminal law by bureaucratic fiat

A nation of laws must also be a nation of lawmakers. But for decades, the United States has allowed unelected bureaucrats to define, expand, and enforce criminal conduct without a single vote cast by a representative of the people. That legal sleight of hand—enabled by judicial deference to federal agencies—has helped fuel the quiet proliferation of federal crimes that no Congress ever debated, let alone passed.

In testimony this year before the House Judiciary Committee’s Subcommittee on Crime and Federal Government Surveillance, Mike Fox, a Legal Fellow with the Cato Institute, laid out the disturbing breadth of this problem. While Congress has created more than 5,000 federal criminal statutes, hundreds more prosecutable offenses exist only in the pages of the Code of Federal Regulations. These are not laws in the constitutional sense. They are policies—often highly technical—crafted by administrative agencies under vague statutory authority. Yet they carry the same weight as a law passed by Congress: years in prison, fines, and a permanent criminal record.

Until recently, courts have largely enabled this regime under what was known as the Chevron deference doctrine. First established in 1984, that doctrine required judges to defer to an agency’s interpretation of ambiguous statutes, as long as the interpretation was deemed “reasonable.” That may sound like a technical rule, but in practice, it meant that agencies could decide for themselves what Congress meant, and courts would go along. Over time, that principle became a lever by which executive agencies assumed quasi-legislative powers.

With that deference came punishment. Rules governing firearms, fisheries, national parks, and environmental procedures—some buried in obscure handbooks or online guidance documents—became the basis for criminal charges. These were not acts debated in committee or passed by elected officials. They were administrative interpretations enforced at gunpoint.

That regime may now be ending. In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned the Chevron doctrine, restoring to judges the power—and duty—to interpret laws independently. No longer can agencies fill in statutory gaps and expect deference. This change may have enormous implications, especially for regulatory crimes. Prosecutors can no longer rely on agency interpretations to convict defendants under criminal penalties not clearly authorized by Congress.

It is too early to say whether past convictions can be revisited under this new framework, but future prosecutions built on shaky regulatory ground will face much stronger challenges. This is a victory not just for due process but for democratic legitimacy. If Americans are to be deprived of their liberty, it must be under laws enacted through the constitutional process—not administrative whim.

Congress should now seize this opportunity to reclaim its role. The Count the Crimes Act and the proposed Mens Rea Reform Act are welcome first steps. So too would be a “Cut the Crimes Act” to eliminate low-level regulatory offenses carrying criminal penalties. But the principle must come first: no more crimes without a vote.

The Constitution vests legislative power in Congress for a reason. It’s time to honor that boundary.