Administrative crimes are federal offenses that come from agency regulations rather than from statutes Congress wrote directly. Congress passes a law authorizing an agency to regulate some area, says that violations of the resulting rules are criminal, and the agency then writes the detailed prohibitions. A person prosecuted for breaking one of those rules is prosecuted for an administrative crime, even though no member of Congress ever voted on the specific conduct being punished. The arrangement is old, widespread, and increasingly contested.
How the Mechanism Works
The structure is straightforward. A statute authorizes an agency such as the Bureau of Land Management, the Environmental Protection Agency, or the Federal Trade Commission to write rules in its area of authority. The same statute typically declares that violating those rules is a criminal offense, usually a misdemeanor punishable by fines and up to twelve months in prison. The agency then issues detailed regulations. Violating one of those regulations exposes a person to federal prosecution.
The Supreme Court blessed this framework in 1911 in United States v. Grimaud. The Court held that Congress makes the law when it establishes the regulated area and sets the penalty; the agency merely fills in details. “A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress,” the Court wrote. “The statute, not the Secretary, fixes the penalty.”1Justia. United States v. Grimaud, 220 U.S. 506 That distinction has held for more than a century.
How Many Administrative Crimes Exist
Nobody knows exactly. Researchers at the Mercatus Center, testifying before the House Judiciary Committee in 2024, estimated that the Code of Federal Regulations contains roughly 2,100 to 2,900 criminal offenses on top of the approximately 5,200 crimes in the U.S. Code itself, putting the federal total in the range of 7,000 to 8,000.2Mercatus Center. Quantifying Overcriminalization in Federal Law The National Association of Criminal Defense Lawyers has described “hundreds of thousands” of criminal provisions scattered across federal regulations,3NACDL. Overcriminalization and the Heritage Foundation has cited more than 300,000 regulations containing potential criminal penalties.4Heritage Foundation. Overcriminalization The Congressional Research Service, the Justice Department, and the American Bar Association have all acknowledged they cannot produce a definitive count.
How They Differ From Ordinary Criminal Law
Traditional criminal law is built on a few basic ideas: the legislature defines the offense in advance, the government proves a guilty mind, and conviction carries moral weight. Administrative crimes fit awkwardly with each of these.
Many regulatory offenses impose strict liability. The government does not have to prove the defendant knew the conduct was illegal or even intended to do it. The Supreme Court has called strict liability in criminal law “generally disfavored,”5White House. Fighting Overcriminalization in Federal Regulations but it remains common in the regulatory context. Regulatory violations also lack the moral association of crimes like robbery or fraud, yet the criminal penalty is available, and a person can theoretically face imprisonment for conduct they had no idea was illegal.
Enforcement patterns differ too. Agencies often handle violations through compliance mechanisms and reserve criminal referral for egregious or willful conduct. The criminal exposure sits in the background, but it is real.
The Nondelegation Problem
The most fundamental objection is constitutional. Article I vests “all legislative Powers” in Congress, and the nondelegation doctrine holds that Congress cannot transfer that power to the executive. In an 1812 case the Supreme Court stated that “defining of crimes and fixing of punishments are the sole province of Congress.”6Virginia Law Review. Nondelegation and Criminal Law
In practice, the Court has been permissive. Under the “intelligible principle” test, a delegation is constitutional as long as Congress supplies some guiding standard. The Court has struck down a delegation on nondelegation grounds only twice, both in 1935.7Congress.gov. Article I, Section 1: Nondelegation Doctrine The unresolved question is whether criminal delegations deserve a stricter version of that test.
Scholars F. Andrew Hessick and Carissa Byrne Hessick argued in the Virginia Law Review that they do. Existing criminal-law doctrines already demand more legislative precision than regulatory law does: the vagueness doctrine requires fair notice, the rule of lenity resolves ambiguity for the defendant, and courts cannot invent federal crimes. Each of those protections assumes the legislature has done the work. When Congress hands the task to an agency, the protections become hollow. The authors proposed either barring criminal delegations outright or applying a “more robust version of the intelligible principle doctrine” when criminal penalties are involved.6Virginia Law Review. Nondelegation and Criminal Law Nicolas Elliott-Smith, writing in 2025 in the Journal of Criminal Law and Criminology, argued from originalist grounds that the Founding generation did not delegate criminal lawmaking and would not have permitted it.8Northwestern Scholarly Commons. Crimes Without Law: Administrative Crimes and the Nondelegation Doctrine
A counterargument published in the Yale Journal on Regulation defends administrative crimes as “normatively quite attractive” in practice. Congress already delegates criminal lawmaking in other ways, incorporating state codes through the Assimilative Crimes Act and referencing foreign law through statutes like the Lacey Act, and agency rulemaking with public notice-and-comment can be more transparent than those alternatives.9Yale Journal on Regulation. Defining Crime, Delegating Authority — How Different Are Administrative Crimes
Gundy and the Current Court
The most visible recent battle over administrative crimes was Gundy v. United States, decided in 2019. The Sex Offender Registration and Notification Act authorized the Attorney General to “specify the applicability” of registration requirements to people convicted before the law took effect. Herman Gundy, a pre-Act offender, argued this was an unconstitutional delegation of criminal lawmaking.
A four-Justice plurality led by Justice Elena Kagan upheld the delegation, reading the statute to require registration for pre-Act offenders “as soon as feasible” rather than granting open-ended discretion.10Supreme Court of the United States. Gundy v. United States, 588 U.S. 128 Justice Samuel Alito provided the fifth vote to affirm but said he would be willing to reconsider the Court’s nondelegation approach in a future case. Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, dissented. Congress “may never hand off to the nation’s chief prosecutor the power to write his own criminal code,” Gorsuch wrote. “That is delegation running riot.”7Congress.gov. Article I, Section 1: Nondelegation Doctrine Justice Brett Kavanaugh did not participate in Gundy but later indicated sympathy for the dissent, meaning a majority of sitting Justices have signaled openness to tightening the doctrine for criminal delegations.
The Pheasant Case
The most likely vehicle for the Court to revisit the question is United States v. Pheasant. Gregory Pheasant was charged after driving an off-road vehicle without a taillight on Bureau of Land Management land in Nevada. The charge rested on a BLM regulation issued under the Federal Land Policy and Management Act, which authorizes the Secretary of the Interior to manage public lands and makes “knowing and willful” violations of the resulting regulations punishable by up to twelve months in prison and a $1,000 fine.11Yale Journal on Regulation. Administrative Crimes Are Unlawful: United States v. Pheasant and the Nondelegation Doctrine
The federal district court in Nevada dismissed the indictment, ruling that the statute gave the Secretary “unfettered legislative authority” to create crimes. The Ninth Circuit reversed, holding that the intelligible principle test still governs and that the statute’s directive to manage public lands sustainably supplied enough guidance.12U.S. Court of Appeals for the Ninth Circuit. United States v. Pheasant, 129 F.4th 576 The full Ninth Circuit declined rehearing, but Judges Patrick Bumatay and Lawrence VanDyke dissented, arguing that “criminal law is in the more demanding bucket” and that Congress must at minimum define the prohibited conduct and the penalty.
Pheasant filed his petition for certiorari in February 2026, asking whether the statute “violates the nondelegation doctrine by giving the Executive near-unfettered power to define what conduct is subject to criminal punishment.”13Supreme Court of the United States. Petition for Writ of Certiorari, Pheasant v. United States, No. 25-6911 The petition notes that the BLM manages roughly ten percent of U.S. land, so agency discretion rather than congressional choice determines criminal liability across a vast area. Amicus briefs have been filed urging the Court to take the case.14Supreme Court of the United States. Amici Curiae Brief, Pheasant v. United States, No. 25-6911 The petition remains pending.
The End of Chevron Deference
In June 2024, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo, holding that the Administrative Procedure Act requires judges to exercise independent judgment on questions of law rather than deferring to agency interpretations of ambiguous statutes.15Supreme Court of the United States. Loper Bright Enterprises v. Raimondo The practical effect on administrative crimes is significant. Agencies had often relied on expansive readings of their statutory authority to pursue enforcement.
Weeks after Loper Bright, in Amazon Services v. U.S. Department of Agriculture, the D.C. Circuit rejected the Agriculture Department’s attempt to impose a million-dollar fine under a strict-liability reading of an import statute, holding that the law required “conscious, voluntary, and culpable participation in another’s wrongdoing.” The court said it “need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”15Supreme Court of the United States. Loper Bright Enterprises v. Raimondo Defendants facing regulatory criminal charges now have stronger footing to challenge the government’s reading of the underlying statute.
Fair Notice and Due Process
Even setting nondelegation aside, administrative crimes raise due process problems. The Fifth Amendment requires that people have fair notice of what is prohibited before punishment. In FCC v. Fox Television Stations (2012), the Supreme Court held that enforcement actions are invalid when the rule “fails to provide a person of ordinary intelligence fair notice of what is prohibited.” In Christopher v. SmithKline Beecham Corp. the same year, the Court rejected a Department of Labor interpretation announced after the conduct had already occurred, noting that “the potential for unfair surprise is acute” when an agency reverses a long period of inaction.16Wiley Law. Supreme Court to Regulatory Agencies: Due Process Requires Fair Notice of Agency Interpretations
The fair-notice problem is sharpest with administrative crimes because of the volume of regulations, the frequency of interpretive changes, and the use of informal guidance rather than formal rulemaking to signal enforcement positions. Justice Gorsuch’s Gundy dissent pressed this point, arguing that legislation must be made through a public process so that rules are “knowable in advance.”17Competitive Enterprise Institute. Fair Notice and the Nondelegation Doctrine: A Due Process Lens
Reform Efforts Across the Branches
Concerns about administrative crimes have produced action from Congress and the executive.
Congressional Bills
The main legislative push is to require a default criminal-intent standard. Representative Andy Biggs introduced the Mens Rea Reform Act of 2025 (H.R. 59), which would require the government to prove a defendant acted “knowingly with respect to each element of an offense” whenever a federal criminal statute or regulation is silent on mental state. The House Judiciary Committee approved the bill in June 2025 by a vote of 15 to 13.18Congress.gov. H.R. 59 – Mens Rea Reform Act of 2025 Similar bills have been introduced before, including Senator Orrin Hatch’s 2015 version, which would have required proof of willfulness.19Center for American Progress. Three Ways Congressional Mens Rea Proposals Could Allow White-Collar Criminals to Escape Prosecution The Department of Justice has opposed these efforts. At 2016 hearings, officials warned that a default intent requirement would cause “extreme and very harmful disruptions” to environmental, health, and safety prosecutions.
A separate bill, the Count the Crimes to Cut Act of 2024, would require the Attorney General to audit every federal criminal statute and regulation, identifying elements, penalties, and intent standards for each.20Congress.gov. House Judiciary Committee Document on Mens Rea Reform
Executive Orders
President Trump signed Executive Order 13980 on January 18, 2021, requiring agencies to state the applicable intent standard whenever they proposed new regulations carrying criminal penalties.21The American Presidency Project. Executive Order 13980 The Biden administration rescinded it. On May 9, 2025, Trump issued a new executive order, “Fighting Overcriminalization in Federal Regulations,” reviving and expanding the earlier policy. The 2025 order declares that criminal enforcement of regulatory offenses is “disfavored,” directs agencies to compile public inventories of every criminal regulatory offense they enforce, and requires agencies to determine whether they have authority to adopt a default intent standard. Any proposed regulation imposing strict criminal liability is treated as a “significant regulatory action” subject to White House review.5White House. Fighting Overcriminalization in Federal Regulations
Where the Doctrine Stands Now
The framework that allows administrative crimes has been in place since 1911. The combination of a near-majority sympathetic to the Gundy dissent, the end of Chevron deference, a pending certiorari petition in Pheasant, active legislation to require criminal intent, and an executive order disfavoring criminal enforcement of regulations has produced the most concentrated pressure on the doctrine in its history. Whether the Supreme Court grants review in Pheasant, and whether it imposes a stricter nondelegation standard for criminal law, will decide whether the thousands of administrative offenses in federal regulations keep operating as they have.