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Sunrises & Sunsets
Are Both Wondrous to Behold |
 October
29, 2004
- `I have . . . often and often . . . looked at
that behind the President without being able to tell whether it was rising
or setting: But now at length I have the happiness to know that it is a
rising and not a setting sun.' - Ben Franklin, at the conclusion
of the Constitutional Convention alluding both to the birth of America and
the carved sun on the back of the chair which he faced during each day of
the proceedings.
The birth of new legislation may create the same feelings of sunrise for its
authors. Often, it is a job well done. Rarely does it reach the level of
prose contained within the US Constitution. We can, without debasing that
document, compare it to legislation. When we do so, we find that many
scholars, legislators and judges consider the Constitution a "living
document”. The Constitution has been amended and subjected to countless
reviews and reinterpretations as society has evolved. So, if what is
generally considered to be the finest political document ever written can
stand occasional review and revision by lesser mortals, why is the Social
Security Act sacrosanct? It’s baffling to me. The Constitution changes over
time. Only the Ten Commandments and entitlement spending programs don’t.
This notion of sunrise and its opposite sunset can, however be found in
legislation.
I’m betting the average person is unaware of the meaning behind a "sunset
clause” in a piece of legislation. If the idea of having an end date to a
piece of enacted legislation is new to you, you are not alone. Sunset
clauses or end dates for laws are not common practice. But they should be.
As is illustrated by Ben Franklin, one man’s sunset is another man’s
sunrise.
"Sunsetting” is referred to in the writings of Thomas Jefferson. Though he
didn’t use the word, Jefferson believed that a version of sunsetting sprang
directly from natural law. "Every constitution . . . and every law,” he
wrote, "naturally expires at the end of 19 years,” which was considered the
length of a generation in his era. This belief derives from a different
notion of the social contract than is prevalent today. The social contract
was a democratic agreement entered into willfully in Jefferson’s era. Now we
are born into a supposed social contract where we have no democratic right
of assent or dissent to these "positive freedoms” accorded us. Sunset
clauses would erase this democratic deficit and renew the meaning and intent
of the social contract Jefferson was advocating.
Contemporary sunset clauses began during the 1970s when University of
Chicago political theorist, Theodore J. Lowi, proposed the
"tenure-of-statutes act” limiting laws which create a federal agency, to
anywhere from five to ten years. He hoped this would result in effective
oversight of these agencies by analysts who appropriately measure their
success or failure
In reality, most sunset audit agency staffs need to demonstrate that
regulation was not necessary, not evaluate for success or failure, to
terminate an agency.
When the Federal Violent Crime Control Act of 1994 was passed, it banned the
manufacture and import of "Assault Weapons." It also banned "high capacity"
magazines. These provisions expired on September 13th, 2004.
The 1996 welfare reform act contained a sunset clause. President Bush
proposed a new welfare reform bill. The House passed a version, yet the
Democrat-controlled Senate has refused to allow a vote on welfare reform.
Some of the most important bills signed into law under President George W.
Bush include "sunset” provisions.
▪ The 2001 Economic Growth and Tax Relief Reconciliation Act, Bush’s first
tax cut, terminates at the close of 2010.
In order for President Bush and Congress to fit the $1.35 trillion tax cut
into the Congressional budget goals, Congress and the President agreed to
"sunset" (end) the tax act on December 31, 2010. Unless these provisions are
renewed between now and then, the tax provisions of 2001 will be reinstated.
▪ The 2003 tax cut, which slashed taxes on capital gains and dividends,
contains various features that expire before 2013.
▪ Aspects of the USA Patriot Act phase out at the end of 2005.
Bruce Ackerman argued that because the Patriot Act was emergency
legislation, it should include a sunset provision requiring it to lapse
after two years
Whether or not a piece of legislation continues, sunset clauses ensure that
continuing legislation has not outlived its usefulness. Congress passed the
tax cuts with a sunset date included based upon the concerns of members that
the tax cuts could create future budget pressures which merited a
comprehensive review prior to renewal. This is good government. Recognizing
human fallacy and thus the limits of the laws of man is wise. If we can do
it when it comes to tax policy and national security, two paramount issues
for all Americans, don’t we owe it to ourselves and the generations to come
to also subject social welfare, health and retirement programs to periodic
review and renewal processes that can adjust for societal change?
How do policy analysts approach legislative
proposals?
http://www.sen.ca.gov/ftp/SEN/COMMITTEE/STANDING/LOC_GOV/_home/Pppo.htm
A Short History of Sunsets
http://www.legalaffairs.org/issues/January-February-2004/story_mooney_janfeb04.html
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