Sunset provision
Encyclopedia
In public policy
, a sunset provision or clause is a measure within a statute
, regulation
or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law. Most laws do not have sunset clauses and therefore remain in force indefinitely.
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.
Some high-profile examples in American law include:
, 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.
, several of the surveillance portions originally expired on December 31, 2005. These were later renewed, but expired again on March 10, 2006, and was renewed once more in 2010. The USA PATRIOT Act is set to sunset the following provisions:
terminated the law.
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. 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. 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 the budget resolution covers at least the four years following the "budget year" which is typically the year following the year in which it adopted, that is the usual period of time. However, budget resolutions have covered periods as long as ten years, so a reconciliation measure may cover the 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 five or ten years (conceivably longer). (Otherwise, the provision would increase the deficit in a fiscal year after the period covered by the budget resolution.) 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 assuring no increase in the deficit after the budget resolution period (though there is an exception if the total effect on the deficit in a particular title is to not increase the deficit, the point of order is not triggered). With the sunset provision, only a simple majority is necessary in the budget reconciliation process.
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
. , 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 plan
s, also introduced in the Act, were permanently extended by the Pension Protection Act of 2006.
– 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. 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.
.
(the notwithstanding clause) has an implied sunset clause of five years.
The Canadian Anti-Terrorism Act
contains a sunset clause that went into effect in February 2007.
In 2007, the Liberal Democratic Party
proposed a constitutional amendment to make sunset clauses compulsory in all legislation that lacks the support of a 75% parliamentary supermajority.
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.
" in a mixed member proportional parliamentary system. The amendment expired as scheduled in 2005.
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
, a sunset provision or clause is a measure within a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law. Most laws do not have sunset clauses and therefore remain in force indefinitely.
Origin
The roots of sunset provisions are laid in Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
of the mandate
Mandate (politics)
In politics, a mandate is the authority granted by a constituency to act as its representative.The concept of a government having a legitimate mandate to govern via the fair winning of a democratic election is a central idea of democracy...
. At the time of the Roman Republic
Roman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
, the empowerment of the Roman Senate
Roman Senate
The Senate of the Roman Republic was a political institution in the ancient Roman Republic, however, it was not an elected body, but one whose members were appointed by the consuls, and later by the censors. After a magistrate served his term in office, it usually was followed with automatic...
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
Proconsul
A proconsul was a governor of a province in the Roman Republic appointed for one year by the senate. In modern usage, the title has been used for a person from one country ruling another country or bluntly interfering in another country's internal affairs.-Ancient Rome:In the Roman Republic, a...
. 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
Corpus Juris Civilis
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor...
(10, 61, 1). The principle was broken when Julius Caesar
Julius Caesar
Gaius Julius Caesar was a Roman general and statesman and a distinguished writer of Latin prose. He played a critical role in the gradual transformation of the Roman Republic into the Roman Empire....
became dictator for life.
Examples
Sunset provisions have been used extensively throughout legal history. The idea of general sunset provisions was discussed extensively in the late 1970s.United States
In American federal law parlance, legislation which is meant to renew an expired mandate is known as a reauthorization act or extension act. Reauthorizations of controversial laws or agencies may be preceded by extensive political wrangling before final votes.Some high-profile examples in American law include:
Sedition Act of 1798
Part of the Alien and Sedition ActsAlien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
, the Sedition Act was a political tool used by John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
and the Federalist Party
Federalist Party (United States)
The Federalist Party was the first American political party, from the early 1790s to 1816, the era of the First Party System, with remnants lasting into the 1820s. The Federalists controlled the federal government until 1801...
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 ActUSA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
, several of the surveillance portions originally expired on December 31, 2005. These were later renewed, but expired again on March 10, 2006, and was renewed once more in 2010. The USA PATRIOT Act is set to sunset the following provisions:
- §201 WiretapTelephone tappingTelephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
ping for terrorismTerrorismTerrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
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 voicemailVoicemailVoicemail is a computer based system that allows users and subscribers to exchange personal voice messages; to select and deliver voice information; and to process transactions relating to individuals, organizations, products and services, using an ordinary telephone...
messages - §217 Computer trespasser communications
- §220 Nationwide service or warrants for electronic evidence
- §223 PrivacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
violation civil liability
Assault Weapons Ban
In 2004 the sunset provision of the Federal Assault Weapons BanFederal assault weapons ban
The Federal Assault Weapons Ban was a subtitle of the Violent Crime Control and Law Enforcement Act of 1994, a federal law in the United States that included a prohibition on the manufacture for civilian use of certain semi-automatic firearms, so called "assault weapons"...
terminated the law.
Budget Act and the Byrd Rule
The Congressional Budget ActCongressional Budget and Impoundment Control Act of 1974
The Congressional Budget and Impoundment Control Act of 1974 is a United States federal law that governs the role of the Congress in the United States budget process.-The Congressional budget process:...
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
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
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. 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. 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 the budget resolution covers at least the four years following the "budget year" which is typically the year following the year in which it adopted, that is the usual period of time. However, budget resolutions have covered periods as long as ten years, so a reconciliation measure may cover the 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 five or ten years (conceivably longer). (Otherwise, the provision would increase the deficit in a fiscal year after the period covered by the budget resolution.) Overcoming a point of order requires cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
, 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 assuring no increase in the deficit after the budget resolution period (though there is an exception if the total effect on the deficit in a particular title is to not increase the deficit, the point of order is not triggered). 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 2001Economic Growth and Tax Relief Reconciliation Act of 2001
The Economic Growth and Tax Relief Reconciliation Act of 2001 , was a sweeping piece of tax legislation in the United States by President George W. Bush...
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
Byrd Rule
The Byrd Rule is a Senate rule that amends the Congressional Budget Act of 1974 to allow Senators, during the Reconciliation Process, to block a piece of legislation if it purports significantly to increase the federal deficit beyond a ten-year term or is otherwise an "extraneous matter" as set...
. , 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
Estate planning
Estate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...
more complicated. However, certain provisions of the Act have had their sunset provision repealed. For example, the education savings 529 plan
529 plan
A 529 plan is a tax-advantaged investment vehicle in the United States designed to encourage saving for the future higher education expenses of a designated beneficiary.- Overview :529 plans are named after section 529 of the Internal Revenue Code...
s, also introduced in the Act, were permanently extended by the Pension Protection Act of 2006.
Texas
The Texas Sunset provision was established in 1977. Under Texas law, all agencies – except universities, courts, and agencies established by the Texas ConstitutionTexas Constitution
The Constitution of the State of Texas is the document that describes the structure and function of the government of the U.S. State of Texas.Texas has had seven constitutions: the constitution of Coahuila y Tejas, the 1836 Constitution of the Republic of Texas, the state constitutions of 1845,...
– will be abolished on a specific date, generally 12 years after creation or renewal, unless the Texas Legislature
Texas Legislature
The Legislature of the state of Texas is the state legislature of the U.S. state of Texas. The legislature is a bicameral body composed of a 31-member Senate and a 150-member House of Representatives. The Legislature meets at the Capitol in Austin...
passes specific legislation to continue its functions.
A 12-member Sunset Advisory Commission
Sunset Advisory Commission
The Sunset Advisory Commission is an agency of the Texas Legislature, that makes recommendations to the Legislature on the continued need for the existence of various state agencies. It is headquartered in the Robert E...
oversees the provisions of the Texas Sunset Act. The commission consisting of five members of the Texas Senate
Texas Senate
The Texas Senate is the upper house of the Texas Legislature. There are 31 members of the Senate, representing 31 single-member districts across the state with populations of approximately 672,000 per constituency. There are no term limits, and each term is four years long. The Senate meets at the...
and one member from the general public appointed by the Lieutenant Governor of Texas
Lieutenant Governor of Texas
The Lieutenant Governor of Texas is the second-highest executive office in the government of Texas, a state in the U.S. It is the second most powerful post in Texas government because its occupant controls the work of the Texas Senate and controls the budgeting process as a leader of the...
, and five members of the House and one member from the general public appointed by the Speaker of the Texas House of Representatives
Texas House of Representatives
The Texas House of Representatives is the lower house of the Texas Legislature. The House is composed of 150 members elected from single-member districts across the state. The average district has about 150,000 people. Representatives are elected to two-year terms with no term limits...
. 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. 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.United Kingdom
In 2005, the inclusion of a sunset clause caused mass political debate and public interest during Labour's proposals of the 2005 Anti-Terrorism BillPrevention of Terrorism Act 2005
The Prevention of Terrorism Act 2005 is an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001...
.
Canada
In Canada all legislation enacted under Section Thirty-three of the Canadian Charter of Rights and FreedomsSection Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
(the notwithstanding clause) has an implied sunset clause of five years.
The Canadian Anti-Terrorism Act
Canadian Anti-Terrorism Act
The Canadian Anti-Terrorism Act was passed by the Liberal government of Canada in response to the September 11, 2001, attacks in the United States. It received Royal Assent on December 18, 2001, as Bill C-36. The "omnibus" bill extends the powers of government and institutions within the Canadian...
contains a sunset clause that went into effect in February 2007.
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 Liberal Democratic Party
Liberal Democratic Party (Australia)
The Liberal Democratic Party is a classical liberal Australian political party founded in 2001.-Party name:In 2007 the party tried to register federally under the name "Liberal Democratic Party" but this was opposed the by the Liberal Party, so the party chose to register as the "Liberty and...
proposed a constitutional amendment to make sunset clauses compulsory in all legislation that lacks the support of a 75% parliamentary supermajority.
Germany
In the German legislation sunset provisions are applied on several federal levels.The German constitution
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
rules a general sunset provision of six months for emergency legislation. Some federal states
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
, e.g. Hesse
Hesse
Hesse or Hessia is both a cultural region of Germany and the name of an individual German state.* The cultural region of Hesse includes both the State of Hesse and the area known as Rhenish Hesse in the neighbouring Rhineland-Palatinate state...
and North Rhine-Westphalia
North Rhine-Westphalia
North Rhine-Westphalia is the most populous state of Germany, with four of the country's ten largest cities. The state was formed in 1946 as a merger of the northern Rhineland and Westphalia, both formerly part of Prussia. Its capital is Düsseldorf. The state is currently run by a coalition of the...
sporadically add sunset provisions to bills.
New Zealand
The Electoral Integrity Act was passed in 1999 to discourage "waka-jumpingWaka-jumping
New Zealanders speak colloquially of waka-jumping when elected politicians switch political parties between elections .The advent of MMP in New Zealand parliamentary politics in the 1990s — culminating in the use of...
" in a mixed member proportional parliamentary system. The amendment expired as scheduled in 2005.