public policy
Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...
, a sunset provision or sunset clause is a measure within a
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
,
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
, or other law that provides for the law to cease to be effective after a specified date, unless further
legislative
A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...
action is taken to extend it. Unlike most laws that remain in force indefinitely unless they are amended or repealed, sunset provisions have a specified expiration date. Desuetude renders a law invalid after long non-use.
Origin
The roots of sunset provisions are laid in
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
of the mandate but the first philosophical reference is traced in the laws of Plato.Antonios Kouroutakis, "The Constitutional Value of Sunset Clauses" Routledge 2017 At the time of the
Roman Republic
The Roman Republic ( ) was the era of Ancient Rome, classical Roman civilisation beginning with Overthrow of the Roman monarchy, the overthrow of the Roman Kingdom (traditionally dated to 509 BC) and ending in 27 BC with the establis ...
, the empowerment of the
Roman Senate
The Roman Senate () was the highest and constituting assembly of ancient Rome and its aristocracy. With different powers throughout its existence it lasted from the first days of the city of Rome (traditionally founded in 753 BC) as the Sena ...
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
A proconsul was an official of ancient Rome who acted on behalf of a Roman consul, consul. A proconsul was typically a former consul. The term is also used in recent history for officials with delegated authority.
In the Roman Republic, military ...
. 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 was later codified in the '' Codex Iustinianus'' (10, 61, 1). The principle was broken when
Julius Caesar
Gaius Julius Caesar (12 or 13 July 100 BC – 15 March 44 BC) was a Roman general and statesman. A member of the First Triumvirate, Caesar led the Roman armies in the Gallic Wars before defeating his political rival Pompey in Caesar's civil wa ...
became dictator for life.
Arguments
Sunset provisions have been used extensively throughout legal history. The idea of general sunset provisions was discussed extensively in the late 1970s.
Sunset clauses with an effective extension review process have been argued as a safeguard of
democracy
Democracy (from , ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which political power is vested in the people or the population of a state. Under a minimalist definition of democracy, rulers are elected through competitiv ...
to ensure emergency provisions, such as
state of emergency
A state of emergency is a situation in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state before, during, o ...
, remain temporary.
An increase in electoral accountability can be achieved with brief reviews resulting in a majority of provisions extended with no or cosmetic modifications and a record who advocates for extending the provisions. Sunset clauses with automatic expiration can reduce legal certainty and circumvent long-term budget constraints and regulatory impact analysis. Experimental regulations can test temporarily new legislative approaches.
By country
United States
Colonial and early state legislatures
Sunset provisions were a frequent legislative tool used by the colonial and early state legislatures but would decrease in popularity as the legislatures were institutionalized.
Federal level
In American federal law parlance, legislation that renews an expired mandate is a ''reauthorization act'' or ''extension act''. Extensive political wrangling often precedes reauthorizations of controversial laws or agencies. High-profile examples in
American law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the supreme law is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as v ...
include:
=U.S. Constitution
=
Article I, Section 8, which enumerates the powers of Congress, includes a sunset provision for expenditures on “Armies,” but not the Navy:
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Article V contains a provision “that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect th first an fourth Clauses in the Ninth Section of the first Article,” which, by its words, had sunsetted by 1808.
John Adams
John Adams (October 30, 1735 – July 4, 1826) was a Founding Fathers of the United States, Founding Father and the second president of the United States from 1797 to 1801. Before Presidency of John Adams, his presidency, he was a leader of ...
and the
Federalist Party
The Federalist Party was a conservativeMultiple sources:
*
*
*
*
*
*
*
* and nationalist American political party and the first political party in the United States. It dominated the national government under Alexander Hamilton from 17 ...
to suppress opposition. The authors ensured the act would terminate at the end of Adams' term so that it could not be used by Democratic-Republicans against the President's own party.
=USA PATRIOT Act
=
Under §224 of the USA PATRIOT Act, several of the surveillance portions originally expired on December 31, 2005. These were later renewed, but expired again on March 10, 2006, and were renewed once more in 2010.
Section 102(b)(1), which states, "the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety" was set to sunset on March 15, 2020. On March 15, 2020, the House of Representatives left the chamber without voting on an extension for the remaining provisions of the act, which sunset the following provisions:
* §201 Wiretapping for
terrorism
Terrorism, in its broadest sense, is the use of violence against non-combatants to achieve political or ideological aims. The term is used in this regard primarily to refer to intentional violence during peacetime or in the context of war aga ...
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
The Foreign Intelligence Surveillance Act of 1978 (FISA, , ) is a Law of the United States, United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.voicemail messages
* §217 Computer trespasser communications
* §220 Nationwide service or warrants for electronic evidence
* §223
Privacy
Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.
The domain of privacy partially overlaps with security, which can include the concepts of a ...
=
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
A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent a decision. It is sometimes referred to as "talking a bill to death" or "talking ...
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 that is 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 says the budget resolution covers at least the four years following the ''budget year,'' which is typically the year following the year it was 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 congress members to raise a point of order against any spending increase or tax cut that does not contain a sunset provision that ends it after five or ten years (conceivably longer). (Otherwise, the provision increases the deficit in a fiscal year after the period covered by the budget resolution.) Appealing or waiving a ruling based on the Byrd rule requires 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. This is intended to assure there is no increase in the deficit after the budget resolution period (though there is an exception that, 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 2001
An economy is an area of the production, distribution and trade, as well as consumption of goods and services. In general, it is defined as a social domain that emphasize the practices, discourses, and material expressions associated wit ...
the US Congress enacted a phaseout of the federal
estate tax
International tax law distinguishes between an estate tax and an inheritance tax. An inheritance tax is a tax paid by a person who inherits money or property of a person who has died, whereas an estate tax is a levy on the estate (money and pr ...
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. Congress enacted new estate tax levels before the sunset provision was triggered.
State level
According to the National Conference of State Legislatures, "Colorado, Florida and Alabama passed the first sunset laws in 1976. Texas and 21 other states followed suit in 1977. Eventually, a total of 36 states passed broad sunset statutes"; however, dissatisfaction with the sunset process left only 22 states still using it by 1992.
=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
The Texas Senate is the upper house of the Texas Legislature, with the Texas House of Representatives functioning as the lower house. Together, they form the State legislature (United States), state legislature of the state of Texas.
The 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 where 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
A sunset clause was introduced by the
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
secondary legislation
Secondary may refer to: Science and nature
* Secondary emission, of particles
** Secondary electrons, electrons generated as ionization products
* The secondary winding, or the electrical or electronic circuit connected to the secondary winding ...
, i.e.
*a power to review the effectiveness of the legislation within a specified period or at the end of a specified period
*provision for the legislation to cease to have effect at the end of a specified day or a specified period
*a power to consider whether the objectives which it was the purpose of the legislation to achieve remain appropriate and, if so, whether they could be achieved in another way.
The Coronavirus Act 2020 had a sunset clause provision of two years.
Canada
In Canada all legislation enacted under Section Thirty-three of the Canadian Charter of Rights and Freedoms (subsection three of the ''notwithstanding clause'') has an implied sunset clause of five years, this being the maximum length legislation enacted under the section may be operative for (unless an earlier date is specified).
The Canadian Anti-Terrorism Act contains a sunset clause that went into effect in February 2007.
Special laws enacted to deal with emergency situations often contain sunset clauses; Quebec's Bill 78, had a sunset clause.
Australia
In 2005, the Australian Government decided to legislate new
Anti-Terrorism
Counterterrorism (alternatively spelled: counter-terrorism), also known as anti-terrorism, relates to the practices, military tactics, techniques, and strategies that governments, law enforcement, businesses, and intelligence agencies use to co ...
laws. These laws have a sunset clause of ten years.
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.
Th Legislative Instruments Act 2003 legislates the automatic expiry of most legislative instruments ( delegated legislation). Starting in 2015 these legislative instruments must be renewed or they expire automatically.
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
Hesse or Hessen ( ), officially the State of Hesse (), is a States of Germany, state in Germany. Its capital city is Wiesbaden, and the largest urban area is Frankfurt, which is also the country's principal financial centre. Two other major hist ...
and
North Rhine-Westphalia
North Rhine-Westphalia or North-Rhine/Westphalia, commonly shortened to NRW, is a States of Germany, state () in Old states of Germany, Western Germany. With more than 18 million inhabitants, it is the List of German states by population, most ...
sporadically add sunset provisions to bills.
South Korea
A sunset provision can be found in the Corporate Restructuring Promotion Act,The English translation of this Act as of May 17, 2010 i available here which is to facilitate out-of-court workout of insolvent companies. This Act was effective during the period:
:i) from January 2001 to December 2005 for the first time; and again
:ii) from January 2007 to December 2010.
The Act came into force for the third time on May 19, 2011, and was effective till December 2013.
The main content of the Act has been kept intact for the purpose of constant corporate debt restructuring through market functions and promotion of speedy and smooth corporate restructuring, while some minor provisions were modified from time to time.
Free area of the Republic of China
The Taiwan Area, also called the Taiwan Area of the Republic of China, the free area of the Republic of China, and the "Tai-Min Area (Taiwan and Fuchien)" , is a term used to refer to the territories under the effective control of the Rep ...
with a
semi-presidential system
A semi-presidential republic, or dual executive republic, is a republic in which a president exists alongside a prime minister and a cabinet, with the latter two being responsible to the legislature of the state. It differs from a parliament ...
. These articles that have a sunset provision that will terminate them in the event the ROC regains control of
Mainland China
"Mainland China", also referred to as "the Chinese mainland", is a Geopolitics, geopolitical term defined as the territory under direct administration of the People's Republic of China (PRC) in the aftermath of the Chinese Civil War. In addit ...