In this subsection, the roots of sunset clauses and experimental legislation are analyzed. The overview of the history of these legislative instruments does not aim to be extensive and it refers to their ‘broader roots’, including different approaches over the years to subjects such as legal change, legislative obsolescence and experimentalism. The discussion of these topics in the literature and case law prepared the ground for the later emergence of sunset clauses and experimental legislation.
The concern that legislation should mirror the evolution of society mentioned in Chapter 1 is far from being a recent one. Instead, in 1789, in a letter to James Madison, Thomas Jefferson argued that ‘no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. [Therefore] every constitution ... and every law naturally expires at the end of thirty-four years’. Less than
a decade later, Jefferson’s plea for termination of laws appeared to be heard when the Sedition Act of 1798 was enacted. This Act included a sunset clause determining its expiry in 1801. The charter establishing the first national bank in the United States in 1791 also included a sunset provision with the duration of twenty-one years. According to Jacob Gersen, temporary legislation played a significant role not only in colonial legislatures but also in the early years of the US Congress.
This idea of terminating legislation was later revived by Robert Luce, who, without referring to the Founding Father, questioned in 1930 the validity of lasting laws and the extent to which they represented the values of that generation. Luce refers in this context to Blackstone who asserted ‘the right of each generation to think for itself’ and Francis Lieber, who argued that ‘all that is in a code which is not conformable to the spirit of society must fall to the ground’. According to Luce, it was important for the legislator to embrace the new challenges of society and try to ‘escape the prison of custom and old law’. Obsolescence of legislation could be the price to pay for holding on to rules that last longer than the phenomena they originally aimed to regulate.
The described awareness that constitutions and laws should not last forever does not mean that they should necessarily terminate after a fixed period as claimed by Jefferson. On the one hand, while some laws naturally lag behind the evolution of society and technology, others survive different generations or can be updated through statutory interpretation. To wit, while the regulation of telecommunications devices must be frequently reviewed so as to reflect the evolution of this sector, rules on marriage or family relationships tend to evolve at a different pace and may survive several decades without becoming obsolete. On the other, termination is not the only means to guarantee that constitutions and laws remain updated. In the case of constitutions, a living perception of the constitution and an effort to guarantee that constitutions remain open to the future, may be the route to a long constitutional life and avoid their periodic termination, as advocated by Jefferson. While it is true that ‘the past cannot fully control the future’, as Jack Balkin explains, ‘there are not enough rules in the world adequate to navigate centuries of change and crisis. A constitutional project is developed over time and there are inevitably course corrections’, rather than terminations. Moreover, according to Balkin, ‘the legitimacy of a constitution can be enhanced by the fact that people in the past, in the present and in the future can and will disagree about the future’. While the mentioned ‘course corrections’ imply openness to the future and the capacity of a constitution to be adapted to the evolution of relevant socio-economic, political and even technological circumstances, nothing is mentioned about the need to terminate constitutional dispositions.
As far as statutes are concerned, the goal of maintaining them up-to-date can be equally achieved by promoting, for example, evaluations and periodic reviews. However, sunset clauses provide additional benefits in comparison to these instruments. In the second half of the twentieth century, sunset clauses re-emerged as instruments that combine the idea of termination of unnecessary rules with the need to evaluate legislation.
The idea of combining enhanced legislative oversight with temporary legislative instruments emerged later in the second half of the twentieth century. In 1969, Theodore Lowi proposed a ‘Tenure of Statutes Act’ with a sunset of five to ten years on the duration of agencies and their regulatory programmes in order to ensure their reassessment after this period of time. However, the idea of terminating agencies and regulatory programmes had earlier been suggested in 1937 by Justice William O. Douglas.
In the 1970s, the United States experienced a ‘sunset clause boom’ at the state level: the state of Colorado, influenced by the lobby group Common Cause, took the lead in passing sunset clauses that determined the extinction of agencies and unnecessary programmes. Sunset provisions emerged as a reaction to the general discontentment with uncontrolled governmental growth, excessive bureaucracy and public spending. Between 1976 and 1982, 36 state legislators enacted laws containing sunset clauses. States also established sunset advisory commissions which were created to periodically evaluate and review existing sunset clauses; hold hearings on this subject; and decide upon their extinction or renewal. The extant Texas Sunset Advisory Commission is one of the most well-known examples.
The first attempt to enact a federal sunset law was discussed in 1978. Nonetheless, it remained at the ‘attempt level’ since the Bill did not obtain the support of the House of Representatives.
During the 1980s, sunset clauses were adopted in order to control and limit the powers of agencies, solve the ‘ills’ of the executive, control public spending and increase political accountability. In the mid- 1980s, the disappointment with sunset clauses was clear: the underlying goals of these instruments were often not achieved, the inertia of politicians and legislators often resulted in the automatic renewal of sunset clauses, and the reauthorization of sunset clauses occurred with disregard for the evaluation reports.
Despite the disenchantment with sunset clauses, the urge to combat the obsolescence of law - in other words, statutes that ‘no longer fit the legal topography’ and ‘lack current legislative support’ - had not diminished. In 1982, Guido Calabresi criticized the growing disconnection between law and reality due to the obsolescence of legislation and case law. In A Common Law for the Age of Statutes, Calabresi argued that updating law implies enforcing consistency within the legal system since the latter is necessarily ‘contextual, interactive and dynamic’. This scholar rejected, conversely, the use of sunset clauses in this battle against the obsolescence of legislation, arguing that these dispositions were too ‘mechanical’ and could easily be converted into a mere formality. Instead, judges were advised to update legislation or, in some cases, invalidate legislation that no longer fits the ‘legal topography’.
More than one decade later, in Quill v. Vacco, Calabresi suggested that obsolete statutes whose ‘bases have been deeply eroded over the last hundred and fifty years ... [and no longer] remain in place today ... inevitably raise doubts about the current support for these laws’. Laws whose ‘original reason have ceased to exist or whose fit with the rest of the system is dubious’ and threaten fundamental interests, should be declared unconstitutional, except if the court can demonstrate why these laws are still defensible in the contemporary setting. Calabresi regarded legislation as the result of a rational and deliberative process where there is no room for obsolete rules that no longer fit the legal landscape they were originally designed to inhabit. Calabresi insisted, however, that judges and legislators should therefore engage in a frank dialogue to update legislation. Calabresi is one of several different American scholars pleading for a dynamic interpretation of statutes. In the last decades, William N. Eskridge has also pointed out that ‘as time passes, the legal constitutional context may change’, compelling the interpreter to perform a dynamic interpretation of the statute.
Although the use of sunset clauses has been heavily criticized in the last decades in the United States, its impact in Europe is undeniable. In Germany and in the Netherlands, sunset clauses have not mainly been employed to periodically review or terminate agencies. In Europe, agencies’ powers cannot be compared to the American ‘fourth branch of government’. Instead, these legislative instruments have been used to limit the duration of laws and regulations in general and submit them to an ex post evaluation, upon which their renewal or termination is dependent (see 2.3). Nonetheless, the mentioned sunset boom in the United States produced an undeniable influence in Europe.
In the Netherlands, the first timid signs of the impact of this sunset movement started to be visible in the literature in the 1970s. In the 1980s, a group of Dutch researchers saw in sunset clauses (horizon- bepalingen) a legislative translation of the need to reflect policy dynamics and terminate policies when the objective for which they were enacted had been achieved, or when the policy at stake proved to be ineffective to attain it. This study appeared along with the ideas of Roel in’t Veld who advocated that since problems shift in the course of time - often even before they are solved - so should policies, in order to avoid obsolescence.
Sunset clauses have been progressively implemented in more fields since the 1980s and an even broader implementation of sunset clauses in the Netherlands has been studied and discussed.
In Germany, it was particularly in the last decade that sunset clauses (Gesetze mit Verfallsdatum or, more specifically, Auslaufklauseln) began to enter the political debate and the first references in the literature were made. In 2004, it was advocated in the German literature that the enactment of sunset clauses in rapidly changing regulated markets like telecommunications would avoid endangering their ‘free and innovative development’ since they could encompass ‘soft’ deregulatory reforms and reduce the risk of overregulation. A broader use of sunset clauses was suggested here as a way to ensure that unnecessary regulatory burdens would be extinguished, thereby creating favourable regulatory conditions for investment and innovation. Fewer regulatory burdens could signify more resources to invest in research and development. Nonetheless, the connection between the enactment of sunset clauses, the reduction of regulatory pressure, and the consequent stimulation of innovation has only been argued but never sufficiently demonstrated. No attempt to prove the causal relationship between the enactment of sunset clauses and the reduction of regulatory pressure is attempted here either.
Since the enactment of sunset clauses in the Netherlands and Germany is fairly recent, illustrations of the latter will be analyzed below (2.3).