Should Regulatory Violations Ever Be Criminal Offenses?

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Scholar argues that delegation of criminal authority is less dangerous to the public than critics claim.

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When the Federal Trade Commission (FTC) sued Facebook in early December, it did not level criminal charges against the company. But in theory it might have. The FTC, after all, is able to issue rules that carry criminal penalties—creating so-called “administrative crimes.”

Some scholars argue that the power of agencies to create rules backed up by criminal penalties trespasses on Congress’s lawmaking power. Columbia Law School professor Daniel Richman suggests, however, that critics should not single out the delegation of authority over administrative crimes for criticism.

In a recent paper, Richman argues that Congress has allowed federal courts, states, and even foreign nations to define many aspects of federal criminal law. He suggests that, in comparison with the lawmaking authority granted to these other institutions, Congress’s delegation of rulemaking power to agencies is less troublesome. Agencies have less freedom to make unilateral decisions about criminal penalties, and the decisions they do make are more specific and concrete.

Under a long-accepted understanding of Article 1, Section 1 of the U.S. Constitution, Congress may delegate the power to decide the details of laws to other government entities, including agencies. As Richman points out, the U.S. Supreme Court held over a century ago that agencies may “fill up the details” of legislation by issuing rules backed up by criminal penalties, so long as Congress delineates the scope of the penalties.

For those who posit that these rules intrude on Congress’s domain—a group that today includes Justice Neil Gorsuch—the “filling up” is the problem. In Gundy v. United States, Justice Gorsuch argued in a dissenting opinion that agencies have too much discretion, rendering their rulemaking more like lawmaking.

Richman suggests that federal courts receive as much discretion as agencies to define criminal offenses, if not more discretion. Critics, however, have not subjected the federal courts’ “filling up”  to the same level of criticism as agencies’ exercise of that same authority.

Richman notes that, when dealing with civil rights statutes such as Section 241, a court must determine if a claimed right should count as a “right or privilege secured … by the Constitution.” Such a determination becomes precedent, shaping liability and opportunities for relief for future defendants and plaintiffs. But critics of administrative crimes do not seem bothered by Congress’s implicit delegations of authority to the courts, says Richman.

Neither do they seem to be troubled by similar delegations to state governments, even though such implicit delegations are often broad and can create uncertainty for individuals and companies.

The Assimilative Crimes Act, for example, incorporates state criminal offenses wholesale into federal criminal law when Congress has not created an applicable federal provision. Unlike administrative crimes, which agencies design within boundaries that Congress designated in a statute, the Assimilative Crimes Act applies when Congress has said nothing at all.

Similarly, the Lacey Act includes criminal penalties for trafficking wildlife and plants “in violation of any foreign law.” Some scholars have taken particular issue with the notion of delegating authority to foreign governments, voicing the same arguments leveled against agency rules: abdication of Congress’s lawmaking duty and uncertainty for those looking to avoid prosecution.

Yet Richman emphasizes that agency rulemaking may offer greater certainty than courts engaged in similar activity or statutes that carry criminal penalties for violations of state or foreign laws. Agencies must follow the Administrative Procedure Act (APA) as well as the federal statutes that establish their authority, which gives their rulemaking process structure and clarity. Richman argues that the agency rulemaking structure allows agencies to produce clearer and more specific criminal offenses than even Congress can.

Under Section 553 of the APA, agencies must offer the public notice of, and the opportunity to comment on, most proposed rules. In contrast, the U.S. Department of Justice has played an outsized role in drafting federal criminal legislation, Richman argues. As a result, at least some provisions in federal legislation are abstract or vague, the offspring of political necessity rather than practical need.

He acknowledges that the sheer number of administrative crimes seems to indicate that agencies are expanding the scope of what qualifies as criminal behavior. Since federal prosecutors usually charge administrative crimes alongside general offenses such as fraud, however, Richman proposes that administrative crimes have not expanded liability so much as clarified what behaviors actually fall under existing provisions.

Richman cautions that despite this relative benefit of administrative crimes over other sources of federal criminal law, excessive congressional delegation of authority to agencies is still a legitimate concern.

Only by acknowledging that rules with criminal penalties are not an unusually dangerous type of delegation, he proposes, can one get to the “tougher question” of balancing doctrines that require deference to agencies with those that prioritize defendants’ rights.