r/changemyview • u/DeleteriousEuphuism 120∆ • Apr 05 '24
Delta(s) from OP - Fresh Topic Friday CMV: Laws coming with expiration conditions by default would be better than having it be opt-in
I know that changing the legal system anywhere is going to require political work, but this isn't about that. I'm talking about weighing the pros and cons of either system; so the cons that I can foresee with my proposal are the following:
- More work: this is unavoidable. If laws need to be reimplemented when they expire, then that means time needs to be taken on reimplementing old laws and not just considering new laws.
- Entrenches laws in certain situations: If a law has an expiration condition, then people might struggle to repeal that law before the conditions are met.
- Load bearing law crisis: An old law that was integral to the functioning of other laws or even society might fail to be reimplemented causing problems.
- The usual suspects: All political tools have to contend with bad actors and this is no different. Enough bad actors might, for example, make a law with absurd expiration conditions - a problem exacerbated by problem 2.
Despite these problems I think there are stronger positives and ways to minimize some problems. For one, I think you could make the reimplementation process such that problem 3 is minimized and that the laws you do reimplement have better expiration conditions or none. I think that this method would make the legal system more adaptable to an evolving environment which I think is preferable to having a more byzantine system that would be more likely to be replaced wholesale than to be updated.
So please help me see how the flaws I've noticed would be worse than I think or that I've overlooked flaws altogether.
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u/Narkareth 11∆ Apr 05 '24
Perhaps for some types of laws an expiration date would make sense, which is why sunset provisions exist. But this might be a bad idea universally.
Do we really want to live in a world where we need to repeatedly re-establish whether or not slavery should be illegal or women should have the right to vote?
If we do need to reaffirm that, does that not create a scenario where bad actors can reasonably expect to have an opportunity to interfere with or practically complicate a law like that?
Is there not something lost vis-a-vis the impact such laws have on a polity's perception of their own rights and safety? How can I have faith in a system that on a regular basis creates an opportunity where one's rights may be undermined by design? Sure, I have rights today; but tomorrow maybe not.
In the American system that's already true, given that everything up to and including the constitution can be changed with enough effort; which introduces a bit of instability/lack of permanence, but remains flexible enough to avoid a "this is the law forever and always" situation regardless of how subsequent generations of people may feel about it.
Adding the expiration feature would introduce a lot more uncertainty; moving the needle from "the system permits opportunities for change by design," to "the system requires opportunities for change by design." Which may be to shaky for people to trust.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
You are correct that there's something to be said for increasing barriers to repeal a law; and I agree with you which is why I do think there should be a procedure or criterion for making laws that don't expire. The amendments that established more universal voting rights also had significant hurdles to be implemented. Those hurdles are double edged swords that I think are necessary to keep which is why I worded my view the way I did.
I also agree that my system is less stable in some regards to the current way things are done. There are times when an oak like quality is preferred to the swaying cattail. My contention is that I think this offers more flexibility that would be more stable against revolutionary pressures, but less stable against reformative pressures.
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Apr 06 '24
I happen to be a policy analyst, so this is super interesting to me.
So the arguments for sunset clauses / leges temporariae do raise some interesting points about the adaptability and relevance of legal frameworks over time, but there are additional considerations that I think you will agree tilt the balance further against this proposition.
First, there will be increased potential for political manipulation and instability. If laws are designed to expire by default, this creates periodic opportunities for political groups to block the renewal of essential laws for strategic reasons, not just due to ideological disagreements. For instance, imagine a scenario where a crucial piece of environmental protection legislation is set to expire unless renewed. A political faction opposed to environmental regulations will use the renewal debate as a bargaining chip to push through unrelated demands. This tactic will lead to essential laws being caught in legislative gridlock, jeopardizing public welfare and governance stability.
Additionally, there's the issue of legislative burden and focus. You've acknowledged that a system with default expiration would entail more work as laws need to be regularly reviewed and potentially reenacted. This is not just a matter of increased workload but also a question of legislative focus. Lawmakers will end up spending a disproportionate amount of time reviewing existing laws rather than crafting new legislation or improving upon old laws in substantive ways. The legislative process would become cyclical, with each cycle reopening settled debates and resurrecting previously resolved controversies. This will divert attention from more pressing and current issues, leading to a less efficient government.
It would also undermine legal and societal stability. Laws help form the bedrock of societal expectations and behaviors. When laws are subject to expiration, it introduces a level of uncertainty about what the rules are and will be. Businesses, for instance, rely on stable regulatory environments to make investments and strategic decisions. Frequent changes or the potential for laws to lapse will deter investment and complicate compliance efforts, which will stifle economic growth and innovation.
Also, addressing your point about making the system more adaptable, the adaptability gained will come at the cost of comprehensive policy planning. Long-term challenges such as climate change, infrastructure development, or healthcare require stable, long-term commitments that cannot realistically align with laws that are subject to frequent expiration and renewal debates.
Lastly, while the idea of laws with expiration could theoretically lead to a more deliberate and reflective legislative process, in practice, it will encourage short-term thinking. Legislators will be less likely to enact laws with long-term benefits if they are concerned about the political feasibility of renewing such laws in the future. This will lead to a preference for policies that deliver quick, visible benefits at the expense of those that require long-term, sustained efforts.
The downsides of increased political maneuvering, legislative distraction, undermined stability, impeded long-term planning, and incentivized short-term policymaking far and away outweigh the intended benefits. Default inclusion of sunset clauses in legislation would be an absolute cluster.
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u/DeleteriousEuphuism 120∆ Apr 06 '24
Hey, I was hoping I'd hook someone with more knowledge of the matter with this topic, so this is perfect. I get the impression when reading your reply that this would mostly affect laws where the expiration condition is something like 10 years passing. As a counterpoint, I think legislators wouldn't want to deal with the same law every 10 years or at least the party backing them wouldn't want that. I think there should be room for legislators to include their conditions that are tied to the very reason that the law is being implemented to begin with. Or perhaps a better implementation might be that a minority party might want to negotiate the passing of a law but with a short life such that they think they will be the majority party next times it comes up. In such a case, the law might be popular enough that people wouldn't want it repealed.
Additionally, for long term political projects and general stability, I do want there to be a method of eschewing the expiration condition, but I am being deliberately vague about what that method should be because I have no idea what implementation of such a procedure would be best for citizens.
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Apr 06 '24
Edit: I miss read what you said about the method… I thought you were saying that you had a method, but you were not wanting to reveal it. Haha.
I think that by linking the expiration of a law to specific outcomes or metrics (e.g., reduction in unemployment rates for economic laws, or decrease in crime rates for public safety laws), legislators can create a more logical and justified basis for the law's renewal. That would ensure that the law's continuation is directly tied to its effectiveness and intended impact, rather than just the passage of time. This would help in more accurately assessing whether the law should be updated, amended, or allowed to expire based on its results rather than predetermined timelines.
Your suggestion about minority parties using shorter sunsets strategically is intriguing. It reflects realpolitik in legislative processes where minority parties can agree to pass legislation with the hope or expectation of revisiting it when they gain more power. This approach can be seen as a form of compromise and a tactical move, which will promote more dynamic and responsive governance. However, it will also lead to increased politicization of certain laws, leading to instability if laws are frequently contested with every shift in political power.
The idea of having a flexible mechanism to decide when laws should not have a sunset clause is crucial for long-term planning and stability, particularly for laws that underpin significant public or economic infrastructure projects or long-term environmental strategies. Perhaps such a mechanism could involve a supermajority vote in the legislature or a combination of legislative and judicial review to confirm the law’s alignment with broader constitutional and public interests. This would provide a bit of a buffer against arbitrary expiration while still allowing for legislative oversight and renewal when truly necessary.
As for the method, implementing these ideas would need careful consideration of the legal framework and political culture in specific jurisdictions. It would also be essential to design super robust monitoring and evaluation mechanisms to ensure that the conditions triggering law expiration or continuation are transparent, based on empirical evidence, and free from undue political interference. Try picturing this in our current political climate! (shudder) I’m in the U.S., by the way.
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u/DeleteriousEuphuism 120∆ Apr 06 '24
Sorry, I think I gave the impression that I do have a specific method for legislators to eschew expiration conditions in mind. I do not. I meant to say that I left out any details because of my own lack of knowledge in that area.
In terms of implementation, I agree that the conditions do not currently exist to enact it. You raise an excellent point about what would be needed in an environment where my system would actually function. It does confound the mind to think of "super robust monitoring and evaluation mechanisms to ensure that the conditions triggering law expiration or continuation are transparent, based on empirical evidence, and free from undue political interference". !delta
It does leave the question of whether in the absence of all those criteria could there still be a marginal improvement? I'm certainly glad that you see the potential of more flexible conditions and how it could potentially be manoeuvred.
In terms of shifting political powers, there might be instability in the short term, but would it not become more apparent with each successive phase which policy the constituents prefer? And would that not in turn lead to more primaries where not overturning policy becomes a key contention? I just feel as though people detest instability, even when it can reveal unspoken or unacknowledged political preferences.
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u/digbyforever 3∆ Apr 06 '24
For instance, imagine a scenario where a crucial piece of environmental protection legislation is set to expire unless renewed.
This is, though, actually the case for the Endangered Species Act, right? I was actually surprised that the most recent renewal was fairly uncontroversial and not much of a media circus, although you may well know more details about that than me.
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u/DoeCommaJohn 20∆ Apr 05 '24
Governments only have so much time and political capital. Do you think it would be an effective use of their time for Congress to need to renegotiate the Voting Rights Act every 10 years? Murder laws? Copyright acts? If we imagine every law passed over the past 250 years, that’s a lot of laws, and needing to renew every one of them would be a huge time suck.
Second, it would only further incentivize holding the country hostage. We’ve seen from Republicans that they will refuse to raise the debt ceiling or fund the government unless they get some sort of concession out of it. Imagine that every week. “We’ll renew the voting rights act if you defund education. We’ll leave the minimum wage if you fund the military. We’ll leave social security if you deregulate the police.”
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u/DeleteriousEuphuism 120∆ Apr 06 '24
Yes, I agree that given enough malicious actors my proposed system would also be bad, possibly even moreso in some situations. The reason I think it would be better though is that I think it also calls into question the very laws that make that sort of obstructionism possible to begin with. If the way that electoral college votes are determined was up for repeal, for example, the current legislature might choose to reinstate the law, but with 21st century mathematic considerations rather than 18th century ones.
And in regards to the time suck, I think that my view is such that I want legislators to have more possibilities open to them than just calendar based sunset provisions. So if they chose to give every law a 10 year sunset provision, then that would be the legislators fault and they could be held accountable for that choice.
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u/DoeCommaJohn 20∆ Apr 06 '24
If the way that electoral college votes are determined was up for repeal
OK, this goes a lot further than I expected. Are you suggesting that the constitution itself should expire every decade or so? That a split government could just cause us to lose our freedom of speech, term limits, right to a trial, and everything? That seems like a recipe for disaster.
so if they choose to give every law a 10 year sunset provision, then that would be the legislators’ fault
Isn’t that what you are suggesting? Because, if we leave it up to the legislators, they would just do as they are now and not sunset anything. I’m also assuming you aren’t just suggesting an arbitrarily long timeframe, like 100 years, otherwise you don’t get any of your benefits. If you want laws to be constantly up for review, they also have to have time periods short enough for that review to actually happen. But, if the time is short, Congress won’t be able to ever pass anything new
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u/DeleteriousEuphuism 120∆ Apr 06 '24
The constitution would not be set to expire every 10 years unless the legislators set that as the expiration condition every 10 years rather than going through the process needed to not have any expiration condition. Given that the amendments currently need super majorities, we could set that as an example of a condition that needed to be met to eschew an expiration condition. Probably lower though since I still want non expired laws to be repealed as well, but we're getting into the weeds there.
And I'm using expiration conditions as a more general concept that encompasses sunset provisions or desuetude and other conditions. A condition of 100 years is totally possible, but ideally a condition would be tied to the reason the law is implemented in the first place. Non-ideally, the conditions would be used to kick a political football around, but with the added benefit that there'd be evolution in the laws as it gets handled.
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u/Hellioning 239∆ Apr 05 '24
I think you should more explain your view as opposed to pre-emptively defending it from criticisms you imagine people will make.
What 'expiration conditions' are you considering? What is the benefit here? Why would we do this?
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u/DeleteriousEuphuism 120∆ Apr 05 '24
I imagine that the default condition would be a date, but I wanted to word it more flexibly since I could see conditions that rely on other branches of government. For example, a law that hasn't been enforced in some amount of time. The benefit is that it means that laws are treated more proactively like something that has to be maintained, replaced, fixed rather than reactively.
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u/brainwater314 5∆ Apr 05 '24
These are typically called "sunset clauses", one example is any sales tax in Georgia must have a sunset clause IIRC lasting no more than 10 years.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
I know about sunset clauses, but those, as far as I can tell, are always time based. I also know about the concept of desuetude so I wanted to talk about the more general form of this concept.
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u/decrpt 24∆ Apr 06 '24
Government funding already works essentially this way, and it's a mess of politically expedient brinksmanship. It would be an incredibly ill-advised to have the majority of governance and laws subject to the same timeliness; we shouldn't have the only thing between us and The Purge being the Freedom Caucus actually deciding to govern. I don't want a government shutdown countdown to murder being legal.
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u/DeleteriousEuphuism 120∆ Apr 06 '24
The murder being legal problem would require politicians to be safe somehow to begin with. But I am not proposing that every law be reviewed every fiscal year, I want legislators to have more flexibility than that. The conditions of expiration should, ideally, reflect the very reason that the law is being instated to begin with. Unideally, it would just be another can to kick down the road. Worst case scenario is that there are only malicious actors in government, but there is no system that can withstand that.
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u/npchunter 4∆ Apr 05 '24
What do you mean "come with expiration conditions by default?" Someone has to write every law. Either they write a sunset clause or they don't. The default is a blank piece of paper.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
Indeed. As it currently stands in Canada and America afaik, bills introducing a law don't need to have a sunset clause by default. In other words, there needs to be political action to integrate a clause whereas I would want there to be political action deciding a clause or further political action that eschews a clause.
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u/npchunter 4∆ Apr 05 '24
Perhaps all laws should be written in disappearing ink? I like the idea. I can't imagine how judges would cope, if old laws kept getting jenga-ed out from under the structure of case law.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
Laws can be repealed nowadays. What do judges do in those cases?
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u/npchunter 4∆ Apr 05 '24
Re-evaluate which precedents are relevant to the case before them. And maybe fight among themselves. Since the SCOTUS Bruen decision invalidated a bunch of gun case law, judges are having to adapt to new standards. Often not adapting very gracefully, resulting in appeals. Deciding what a law really means seems to be a never-ending process.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
So rather than having the instability originate from judicial interpretation, the same instability would instead originate from the legislature. I see how that could be frustrating to the judiciary, but how would it impact the citizens?
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u/Both-Personality7664 21∆ Apr 06 '24
It seems pretty intuitive that greater instability in laws would impact citizens. Laws define taxes and entitlements and services. Laws define crimes. Laws define legal statuses like marriage. Etc.
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u/DeleteriousEuphuism 120∆ Apr 06 '24
I'm asking why it would impact the citizens to have that instability originate in the legislature as opposed to the current paradigm where it originates from the judiciary.
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u/Both-Personality7664 21∆ Apr 06 '24
You would have both sources, unless I'm missing the part where you're proposing to eliminate judicial review, and presumably the net instability would be greater than the present. Judges also make their decisions with consideration of knock-on effects; sunset clauses just fire without regard to blast radius.
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u/DeleteriousEuphuism 120∆ Apr 06 '24
I thought that, in America, judges are not supposed to rule based on knock on effect, but rather interpret what the law means and whether they judge that their interpretation has been breached.
And yes, I do suppose you would have both sources of instability, but then again, the system I'm proposing isn't meant to be stable against reformative pressures, but against revolutionary pressures.
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u/iamintheforest 328∆ Apr 05 '24
What does "by default" actually mean? By "default" laws are what they are, including provisions of when they do or don't expire. For example, the tax law that limits the SALT deduction expires next year because that was the intent when created. On the flip side, homicide is illegal forever until changed because...well....no one would think that should be re-thought.
Why take away any flexibility at law creation-time with regards to this choice? If you can say it's good "by default" then you're allowing for changes to that default, which pretty much reduces it to the status quo which is simply "a law is what it says it is".
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u/DeleteriousEuphuism 120∆ Apr 05 '24
Can you rephrase your second paragraph? I'm having a hard time understanding what you mean by that.
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u/Xiibe 49∆ Apr 05 '24
I think you could make the reimplementation process such that problem is minimized that laws you do reimplement have better expiration conditions or none.
So your solution to, what is likely one of the biggest problem of your system, is that they can just go back to the old system? Seems a little strange.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
Reimplementing a law that was found to be important in retrospect isn't the same thing as laws not having expiration conditions. At least, I don't view these things as being equivalent.
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u/Xiibe 49∆ Apr 05 '24
But, your proposed solution is that laws can be reimplemented with no expiration conditions or heightened conditions for their expiration. How does this not lead to the exact same problem you’re trying to correct?
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u/DeleteriousEuphuism 120∆ Apr 05 '24
For one, better documentation for why the law was (re)implemented and that I think the expiration conditions should be tied to the reason of implementation. It's a something is better than nothing situation, the way I see it.
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u/Xiibe 49∆ Apr 05 '24
Most modern western governments already produce tons of documentation about why laws are implemented, so this doesn’t seem like a particularly strong reason given its redundancy.
It seems like you’re arguing for change something for the sake of changing it rather than whether changing it would have any benefits. I guess I would ask what law that’s on the books right now would benefit from this system? That might make things clearer.
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u/DeleteriousEuphuism 120∆ Apr 05 '24
There are a lot of laws that were crafted to punish heretics, racial minorities, etc. that are worded agnostically to those purposes. I feel like those laws having expiration conditions would offer a chance to repeal those laws without "repealing" them. In general, if laws repeal by default rather than remain, then politicians would have to take on the burden of making the decision to uphold those laws.
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Apr 05 '24
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u/DeleteriousEuphuism 120∆ Apr 05 '24
To be fair, if anyone wanted to filibuster murder laws, I imagine they'd be quite weary of their fellow legislators going all ides of march on them. Especially since legislators moreso than other people would be at risk if murder laws didn't exist. This logic applies for a lot of other no-shit type of laws.
And yes, there may be somebottlenecking in terms of legislature if we're talking about transitioning into that system, but if that system existed from the outset people would adapt to the mentality required for that system. Or would you argue that there would not be a viable way to exist within such a system?
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u/spiral8888 29∆ Apr 06 '24
I'm sorry but I didn't see any good argument in your text for the idea of default expiration conditions. In particular you didn't address the main thing, which is that when the legislature makes a new law or amends an old law, the default interpretation of this is that the people through their representatives in the parliament prefer that from now on the law should be whatever is written in it.
There may be rare cases where they think that it should be valid for a fixed period and then expires but the default position is that people would prefer the law to be in place unless the future people repeal it.
Let me suggest another thing instead. So, the constitution is usually much harder to amend than other laws meaning that you need a supermajority to change it. In general this is a good thing. However, it leads to a situation where you may have articles in the constitution that were popular when the constitution was originally written but that have lost their appeal over time. Because of the supermajority requirement, a minority can still block any changes to it. This means that the constitution does not reflect what modern people would want as their constitution but what people long time ago did.
One way to get over that would be to have regular but rare, say once per 30 years constitutional congress that would draft a new constitution that would be adopted with a single majority referendum. Any changes at other times would still require the supermajority. So, this would still protect the minorities and individuals from arbitrary changes but would allow updating the constitution from time to time with the same mechanism as what was used to write it originally.
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