Trump Strikes a Welcome Blow Against the Executive Branch

By Charles C. W. Cooke

Tuesday, May 13, 2025

 

The second Trump administration contains multitudes. Rhetorically — and, often, practically — it has advanced an expansive view of executive power that echoes its leader’s famous, l’état-c’est-moi-esque declaration that “I alone can fix it.” And yet, in its concurrent attempts to rein in the most egregious excesses of our presumptuous and recalcitrant federal bureaucracy, it has tasked itself with effecting reforms that run in precisely the opposite direction. Paradoxical as it may seem, the Trump administration is thus engaged simultaneously in an effort to increase the power of the presidency and in an effort to constrain the institution. In the modern era, politics can be a strange game.

 

Consider, by way of example, the executive order that President Trump issued last Friday. At first blush, the missive appears to be yet another attempt at executive-led deregulation. “The United States,” it begins, “is drastically overregulated. The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages — far more than any citizen can possibly read, let alone fully understand.” And yet, when one proceeds further into the text, it becomes clear that, while the document’s literal purpose is, indeed, deregulatory, its real aim is to impose stricter limits on the freestanding power of the executive. The situation has become so dire, it continues, “that no one — likely including those charged with enforcing our criminal laws at the Department of Justice — knows how many separate criminal offenses are contained in the Code of Federal Regulations.” This, it concludes, is a problem not only because it makes life difficult for the citizenry but because “it allows the executive branch to write the law, in addition to executing it.”

 

Indeed, as the order makes clear, the executive branch has now created so many opaque and convoluted regulations that neither the government nor the people can possibly be expected to understand the rules. Worse yet, a substantial number of those regulations do not contain sufficient mens rea requirements, which means that, despite their best efforts, even the most well-intentioned American could end up being prosecuted for transgressing a proscription about which he had no knowledge whatsoever. This arrangement, the document explains, is unfair for a couple of reasons. First, because it enables “abuse and weaponization by providing Government officials tools to target unwitting individuals.” Second, because it “privileges large corporations, which can afford to hire expensive legal teams to navigate complex regulatory schemes and fence out new market entrants, over average Americans.” Going forward, the directive explains, the executive branch hopes to “ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.”

 

How? By a) weakening the executive’s authority to prosecute violators who were unaware that they were doing anything wrong, and b) adding more transparency to the process, so that Americans have a better chance of comprehending the laws under which they live. Admirably, the administration seems to be serious about both aims. From now on, the order confirms, criminal enforcement of regulatory offenses will be “disfavored” per se, and when such cases are brought, they will be in instances “where a putative defendant is alleged to have known his conduct was unlawful.” In concert, the executive branch intends to make the rules easier to find. For the first time in American history, all existing regulations will be compiled and published on the internet, along with their respective mens rea standards and an estimated range of penalties. All new regulations, meanwhile, will be “required to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.” Together, these changes will shift the scales in favor of the regulated rather than the regulator — and they will do so by adding consequences to the government’s actions. If an existing regulation is not included in the public reports, its prosecution is to be “discouraged,” while any future regulations that do not contain expansive mens rea standards must be treated as “significant regulatory actions” and subjected to public notice, scrutiny, and review.

 

In Federalist No. 47, James Madison proposed that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” All too often, the modern federal bureaucracy has neatly matched that description. Unwinding its grip on American life will take an effort that outlasts this president and the next, but with last week’s criminally under-covered executive order, President Trump has struck a welcome — and unexpected — blow for the cause.