Academic journal article Texas Review of Law & Politics

Showcase Panel Iv: A Federal Sunset Law: The Federalist Society 2011 National Lawyers Convention

Academic journal article Texas Review of Law & Politics

Showcase Panel Iv: A Federal Sunset Law: The Federalist Society 2011 National Lawyers Convention

Article excerpt

JUDGE SUTTON: My name is JeffSutton. I sit on the United States Court of Appeals for the Sixth Circuit, and I'm fortunate to moderate the final showcase panel of the 2011 Convention. Our topic is a federal sunset law. More specifically, should Congress pass a general federal sunset law providing that most- or at least many-federal laws expire after, say, twenty years unless both houses of Congress and the President reenact the law?

The concept of a general federal sunset law is relatively new; the concept of a statute that comes with an expiration date is not. The Sedition Act of 1798 contained a clause terminating the Act in 18011-after the 1800 election and after, as it turned out, President Adams leftoffice. Perhaps a little more legitimately, our first national banks contained sunset provisions. The First Bank of the United States was chartered in February 1791.2 The charter lasted twenty years.3 In 1811, Congress debated whether to renew the charter, and the measure failed by one vote in the House.4 The charter expired. In April 1816, Congress chartered the Second National Bank of the United States,5 the one at issue in McCulloch v. Maryland.6 It, too, had a twenty-year expiration date,7 and Congress did not renew the charter again. However, after the charter expired in 1836, the bank continued for five years as a private institution and then, in 1841, went bankrupt.8 There was not a third national bank, but relatedly, in 1913, Congress passed the Federal Reserve Act of 1913.9 It did not have a sunset provision and, as of yet, has not gone bankrupt. So the concept of a sunset provision is not new, but the idea behind a general federal sunset provision that applies to most laws is relatively new.

We have a terrific group of panelists to discuss the topic. None of them needs a flattering introduction, and none of them wants one. I asked. Let me briefly identify them in the order in which they will speak: Professor Tom Merrill, the Charles Evans Hughes Professor of Law at Columbia, who has written many articles and books; Philip Howard, a partner at Covington & Burling, who has written many articles and books; Professor William Eskridge, the John A. Garver Professor of Jurisprudence at Yale, who has written many articles and books; and the Chief Judge of the Seventh Circuit, Frank Easterbrook, who has written many articles and books, and even a few opinions.

Professor Merrill.

PROFESSOR MERRILL: Thank you very much, Judge.

Sunset provisions come in various forms. They can apply to entire statutes, to particular statutory provisions, to agency regulations and programs, or to administrative agencies themselves. Thomas Jefferson, in a letter to James Madison, even proposed that the Constitution include a sunset provision that would require adopting a new one in nineteen years,10 which Jefferson regarded as a single generation. Thankfully, that sunset provision was not adopted.

In addition to taking various forms, sunset provisions also result from different motivations. Modern sunset provisions date to the late 1960s and were inspired by a political scientist, Theodore Lowi, who authored a book with the intriguing title, The End of Liberalism.11 The "liberalism" Lowi wanted to end is more accurately described as interest group pluralism. Lowi wanted to replace interest group pluralism with a kind of progressive populism. One reform he proposed to promote this transformation was what he called a "tenure of statutes" act, which would put a termination date on all statutes creating federal administrative agencies. Such a reform, he argued, would help break up the capture of administrative agencies by interest groups. As an agency's termination date approached, he argued, the agency would have to justify its existence to the legislature, and a hopelessly captured agency would inevitably fall short.

Shortly afterwards, Common Cause-a moderately influential reform group at the time-seized upon Lowi's idea, changed the name from "tenure of statutes act" to "sunset law," and began lobbying legislatures to adopt it. …

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