One of the largest problems with creating crimes through administrative agencies is that it leads to an increase in criminally liable behavior — in other words, the overcriminalization of society. Overcriminalization is the idea that there are so many laws carrying criminal sanctions that a reasonably well-informed, well-intentioned person could not presume to know whether their actions were legal or not.
Defining and criminalizing all unwanted behavior may seem like a good way to protect public safety and encourage citizens to abide by and respect the law. But in many ways just the opposite is true. With a well-functioning and just legal code, ordinary citizens can reasonably know which behavior is illegal and blameworthy and which is not. Citizens subject to such laws should be able to understand why they are criminally enforced: It is in their best interest if everyone abides by these laws. Those who break the law can then be justly penalized for committing an act they should know is illegal and for what reason. This is a centuries old legal principle, an integral part of British common law that greatly influenced the development of American law.
Creating thousands — even perhaps tens of thousands — of different ways for people to commit criminal acts reduces respect for the law. With so many crimes and no systematic rationale for determining which behavior is legal and which is illegal, it is impossible for an individual to know whether their actions are criminally enforced or not. To the average citizen, the law can appear arbitrary — one never quite knows for sure if certain actions carry criminal penalties or not.
Having so many administrative rules also makes it impossible for law enforcement and administrative agencies to enforce all of them. The state has limited resources and limited knowledge and must ultimately choose which rules it will devote resources to enforcing and which ones it will not. From the viewpoint of the average citizen, then, enforcement appears arbitrary.
This lowers citizens’ respect for the law and weakens the rule of law. One consequence is that the Legislature’s ability to guide citizens’ behavior through the use of the law diminishes. Moreover, arbitrarily enforced rules may lead citizens to believe that those charged with crimes are targeted by the government for some reason unrelated to its duty to uphold the law and protect public safety. This contributes to distrust in government, in particular to its ability to impartially enforce the law.