Sunset provision

In public policy, a sunset provision or sunset clause is a provision in a statute or regulation that terminates or repeals all or portions of the law after a specific date, unless further legislative action is taken to extend it. Most laws do not have sunset clauses; in such cases, the law goes on indefinitely.

Origin

The roots of sunset provisions are laid in Roman law of the mandate. At the time of the Roman Republic, the empowerment of the Roman Senate to collect special taxes and to activate troops was limited in time and extent. Those empowerments ended before the expiration of an electoral office, such as the Proconsul. The rule "Ad tempus concessa post tempus censetur denegata" is translated as "what is admitted for a period will be refused after the period." The same rules were applied in the Roman emergency legislation. The fundamental principle appeared in several areas of legislation and later codified in the Codex Iustinianus 10, 61, 1. The principle was broken when Julius Caesar became dictator for life.

Examples

Sunset provisions have been used extensively throughout legal history.

United States

Some high-profile examples in American law include:

edition Act of 1798

Part of the Alien and Sedition Acts, the Sedition Act was a political tool used by John Adams and the Federalist Party to suppress opposition. The authors ensured the act would terminate at the end of Adams's term so that it could not be used by Democratic-Republicans against his own party.

USA PATRIOT Act

Under §224 of the USA PATRIOT Act, several of the surveillance portions originally expired on December 31, 2005. [http://fpc.state.gov/documents/organization/34499.pdf USA PATRIOT Act Sunset: Provisions that Expire on December 31, 2005] These were later renewed, but expired again on March 10 2006. The USA PATRIOT Act is set to sunset the following provisions:
* §201 Wiretapping for terrorism cases
* §202 Wiretapping for computer fraud and abuse
* §203(b) and (d) Sharing of wiretap and foreign intelligence information
* §§204, 206, 207, 214, 215, 218, and 225 Foreign Intelligence Surveillance Act related sections including roving wiretaps
* §209 Warranted seizure of voicemail messages
* §217 Computer trespasser communications
* §220 Nationwide service or warrants for electronic evidence
* §223 Privacy violation civil liability

Assault Weapons Ban

In 2004 the sunset provision of the Federal Assault Weapons Ban terminated the law. At the time, President George W. Bush was subject to criticism for not urging Republicans in Congress to renew the ban.Fact|date=September 2007

The Budget Act and the Byrd Rule

The Congressional Budget Act governs the role of Congress in the budget process. Among other provisions, it affects Senate rules of debate during the budget reconciliation, not least by preventing the use of the filibuster against the budget resolutions. The Byrd rule, named after its principal sponsor, Senator Robert C. Byrd, was adopted in 1985 and amended in 1990 to modify the Budget Act and is contained in section 313. [ [http://www.rules.house.gov/Archives/RL30862.pdf The Budget Reconciliation Process: The Senate's "Byrd Rule" ] ] The rule allows Senators to raise a point of order against any provision held to be extraneous, where extraneous is defined according to one of several criteria. [ [http://www.rules.house.gov/archives/byrd_rule.htm Summary Of The Byrd Rule ] ] The definition of extraneous includes provisions that are outside the jurisdiction of the committee or that do not affect revenues nor outlays.

Importantly for sunset provisions, the Byrd Rule also defines as extraneous provisions that "would increase the deficit for a fiscal year beyond those covered by the reconciliation measure." Since the Budget Act states that the reconciliation measure covers the next ten years, this rule has the effect of allowing a point of order to be raised against any spending increase or tax cut that does not contain a sunset provision ending it after ten years. (Otherwise, the provision would increase the deficit in a fiscal year more than ten years hence.) Overcoming a point of order requires cloture, and thus a three-fifths majority of 60 in the Senate. In short, a net effect of the Byrd Rule is to require that any spending increase or tax cut be approved by a majority of 60 if it does not contain a sunset provision of ten years. With the sunset provision, only a simple majority is necessary in the budget reconciliation process.

Estate Tax and Other Tax Cuts of 2001

In the Economic Growth and Tax Relief Reconciliation Act of 2001 the US Congress enacted a phaseout of the federal estate tax over the following 10 years, so that the tax would be completely repealed in 2010. However, while a majority of the Senate favored the repeal, there was not a three-fifths supermajority in favor. Therefore, a sunset provision in the Act reinstates the tax to its original levels (and indeed, all tax cuts contained in the Act) on January 1, 2011 in order to comply with the Byrd Rule. [ [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=396740 SSRN-The Budget Process and the 'Sunset' Provision of the 2001 Tax Law by Michael Evans ] ] As of May 2005, Republicans in Congress have tried to repeal the sunset provision, but their efforts have been unsuccessful. Uncertainty over the prolonged existence of the sunset provision has made estate planning more complicated. However, certain provisions of the Act have had their sunset provision repealed. For example, the education savings 529 plans, also introduced in the Act, were permanently extended by the Pension Protection Act of 2006. [ [https://flagship.vanguard.com/VGApp/hnw/VanguardViewsArticle?ArticleJSP=/freshness/News_and_Views/news_ALL_chaircorner3Q06_10042006_ALL.jsp Vanguard − Chairman's Corner: A look at the year's sleeper hit ] ]

Texas

The Texas Sunset provision was established in 1977. Under Texas law, all agencies – except universities, courts, and agencies established by the Texas Constitution – will be abolished on a specific date, generally 12 years after creation or renewal, unless the Texas Legislature passes specific legislation to continue its functions.

A 12-member Sunset Advisory Commission oversees the provisions of the Texas Sunset Act. The commission consisting of five members of the Texas Senate and one member from the general public appointed by the Lieutenant Governor of Texas, and five members of the House and one member from the general public appointed by the Speaker of the Texas House of Representatives. Legislative members are appointed for four-year terms, with half of the commission reappointed on or before September 1 of odd-numbered years, while public members serve two-year terms. The chairman and vice-chairman are appointed by the lieutenant governor and speaker, and the chairmanship alternates between the Senate and House every two years. The Commission is assisted by an executive director and staff, who review each agency subject to sunset provisions.

Under the process, each agency must perform for the commission a self-review of its roles and responsibilities, including areas in which its duties may overlap those of other agencies and the effect of the agency's abolition on loss of federal funding. The self-review must be completed by September 1 of the odd-numbered year before the year when the agency would be otherwise abolished. The commission must then complete its own review by the following January 1 and hold public hearings by the following February 1.

About 20 to 30 agencies go through the sunset process each legislative session. Universities and courts are not subject to the provisions. Constitutionally-established agencies are subject to review, but they cannot be abolished under the sunset provisions.

The commission may recommend that an agency be continued in its present form (nearly always with recommendations to the legislature for improvement), consolidated with another agency, or abolished, with its duties either eliminated or transferred to other agencies.

Other states

Alabama has a similar review process with a more limited number of agencies and a review cycle of every four years. [ [http://www.examiners.state.al.us/SunsetComm.htm Sunset Committee Info ] ]

United Kingdom

In the United Kingdom the income tax is legislated for afresh on a yearly basis by Act of Parliament.In 2005, the inclusion of a sunset clause caused mass political debate and public interest during Labour's proposals of the 2005 Anti-Terrorism Bill.Fact|date=September 2008

Canada

In Canada all legislation enacted under Section Thirty-three of the Canadian Charter of Rights and Freedoms (the "notwithstanding clause") has an implied sunset clause of five years.

The Anti-Terrorism Act contains a sunset clause that went into effect in February 2007. [cite web|title=Anti-Terrorism Act |date=2007-02-27| |publisher=CBC|url=http://www.cbc.ca/news/background/cdnsecurity/|accessdate=2008-03-22]

Australia

In 2005, the Australian Government decided to legislate new Anti-Terrorism laws. These laws have a sunset clause of five years.

In 2007 the Liberty and Democracy Party proposed that a consitutional amendment should make sunset clauses compulsory in all legislation that lacks the support of a 75% parliamentary supermajority. [http://ldp.org.au/federal/policies/Democracy.html]

Germany

In the German legislation sunset provisions are applied on several federal levels.The German constitution rules a general sunset provision of six months for emergency legislation. Some federal states, e.g. Hesse and North Rhine-Westphalia sporadically add sunset provisions to bills.

New Zealand

The Electoral Integrity Act was passed in 1999 to discourage "waka-jumping" in a mixed member proportional parliamentary system. The amendment expired as scheduled in 2005.

References

External links

* [http://www.sunset.state.tx.us Information on Texas' Sunset Commission and statute.]