Obsolete Law—The Solutions

By Philip K. Howard

Our founders didn't anticipate that it would be much harder to repeal a law than pass it in the first place. Here's how we can revise the status quo and build a more efficient democracy.

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The regulatory state exists because of the practical necessity for a traffic cop to oversee common resources and enforce minimum norms of safety and fairness. This is a dynamic role, requiring government to be an active umpire in a crowded world, adapting to new challenges while keeping its own house in order.

But America's massive, convoluted, rigid legal structure makes it almost impossible for government to do this job sensibly and within budget. Laws are piled upon laws, making adaptation essentially illegal. Congress doesn't clean out the stables in part because of a constitutional flaw -- our founders didn't anticipate that it would be much harder to repeal a law than passing it in the first place. Bureaucracies don't clean out regulations for the additional reason that the agencies become inbred, and are run by people who do things this way because that's how it's always been done.

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The regulatory state has taken a life of its own, insulated from democratic accountability by thick walls of law. The status quo is defended by legions of lobbyists on K Street and by a million or so lifetime bureaucrats who can't imagine any other way of doing things. Want to do something different, like, say, balance the budget? Sorry, old laws and mandates stand in the way.

Breaking through these legal barriers requires new structures that compel legislators and regulators to clean out obsolete law and otherwise make sure government is doing what society needs today.

How do we force legislators and regulators to rethink old law? Sunset laws are one possible solution, requiring that programs automatically expire. In practice, however, sunset laws are easy to circumvent -- the legislature simply passes an omnibus re-authorization. Indeed, sunset laws provide an opportunity for politicians to "go back to the well," getting campaign support from the affected special interests in order to reinstate the provision (as Professor Rebecca Kysar found with tax breaks that periodically expire).

There needs to be a way either to force Congress to act, or to raise the profile of obsolete law so that there is political accountability if it fails to act. Here are possible proposals, in descending order of difficulty:

1.Constitutional amendment requiring sunsets: "No statute or regulation requiring expenditure of public or private resources (other than to oversee legal compliance or enforcement), shall be in force for longer than [20] years. Congress may re-enact such a law only after finding that it continues to serve the public interest and does not unnecessarily conflict or interfere with other priorities."

A constitutional amendment is action-forcing because it empowers a federal court to step in to end an obsolete program if Congress doesn't do its job. That is also its disadvantage, as interested parties seek to use the courts to eliminate laws they don't like. Another potential disadvantage is that the amendment is over-inclusive, and would require re-authorization of laws that are broadly accepted (say, establishing the Department of Defense). But perhaps even uncontroversial agencies and programs deserve congressional re-examination every few decades.

2. Sunset commissions. Congress could pass a law authorizing one or more legislative review commissions, made up of independent citizens, to recommend either overhauls of specific statutes or identify which statutes should sunset. Congress could also simplify the process by having the recommendation subject only to an up or down vote. (Such a limitation, similar to the base-closing commission model, has some constitutional uncertainty.) A variation would be Judge Guido Calabresi's proposal, where Congress would authorize courts to clean out obsolete law, subject to congressional review.

3. Spring cleaning agency. To an amazing degree, federal regulations promulgated by executive agencies are beyond the control of the president. Sunset commissions could review regulations as well as statutes. Dislodging the regulatory mortar could also be done by creating a new oversight superagency in control of the president, not staffed with tenured civil servants, with the sole job of rationalizing or eliminating duplicative and obsolete regulations. For those concerned about too much presidential power, the effective date of regulatory spring cleaning by the superagency could be delayed to give Congress a chance to override the changes.

The reason to give super-authority to an agency in control of the president is that, otherwise, the job never gets done. At least the president is politically accountable. As Sen. Mark Warner (D-VA) has observed, cleaning out old regulations is just not part of the bureaucratic culture. Even when the president embarks on an effort to eliminate stupid rules, as President Obama has done, it ends up being an exercise in pruning twigs in a vast jungle. No one even thinks about remaking the basic regulatory structure.

4. "One in, one out" requirement for regulations. Under a bill being drafted by Sen. Warner, agencies could not impose a new regulation unless they first eliminated old regulations of equal cost. The advantage of this proposal is that it introduces into the bureaucratic culture the necessity of budgeting regulation. Britain has a similar law, which has thus far proven effective at cutting costs and slowing the pace of new regulation. Another proposal, the so-called REINS Act introduced by Rep. Geoff Davis (R-KY), would require congressional approval for any regulation with a projected economic impact of $100 million or more. But this proposal does nothing to clean out old regulations. The probable effect, as both critics and supporters suggest, is regulatory paralysis: in the current partisan environment, there would be no major new rules.

People are naturally fearful of change, but we don't really have a choice. Better to confront the inevitability head on. Other countries have government agencies that do this job -- in Germany, for example, the Federal Ministry of Justice makes sure statutes work together in a coherent way. South Korea has an entire cabinet-level department, the Ministry of Government Legislation, which works continuously to improve existing legal structures. And New Zealand rewrote from scratch many of its major federal laws -- including environmental, tax, occupational safety and health statutes -- in the late '80s and early '90s.

One way or another, America will have to confront the waste and inefficiency caused by obsolete laws. These proposals above provide a menu of possible frameworks that would compel Congress and regulatory agencies to rethink old law and make new choices.


Below, we've asked experts in the fields of law and public policy to respond to these proposed solutions. Here's what they say: 

The problem of regulatory accretion identified here goes deeper than just habit or culture or fear of change. The system creates incentives to expand the regulatory state, but not to contract it. Rent-seekers and political entrepreneurs are constantly seeking new ways to use the power of government for private gain, and every crisis (real or perceived) creates an opportunity for a new rule or new program. Once in place, programs can rarely be challenged successfully because entrenched interests, including agencies and congressional committees, have the home-turf advantage in defending them. Howard's proposals are welcome attempts to alter those incentives, but we also need mechanisms to hold the political branches more accountable before they issue new laws and regulations, because once they are in place, regulations gain a constituency and are almost impossible to dislodge.

-- Susan E. Dudley is the Director of the GW Regulatory Studies Center and a Research Professor at the Trachtenberg School of Public Policy and Public Administration of The George Washington University

Nobody is in favor of keeping obsolete laws, especially those that presently cause more harm than good. Just like nobody likes a basement piled so high that you can't walk around, or filing cabinets bursting so full that you can't open them, let alone find anything you might need. Of course, you could hire someone to cart away everything in your basement, or shred all your files, but there might be some things in both places that are actually useful.

A more nuanced way to attack those problems is to start with the larger objects, those taking up the most room. If you can get rid of a few of them, the problem will be more manageable. It is not necessary to read each paper in every drawer to make some progress.

Getting rid of obsolete laws is a little harder because bulk alone does not answer the question of whether a law has outlived its usefulness. Part of the problem is that most laws have desirable features, along with others that should be repealed, but it is time-consuming to go through them section by section. In addition, some laws may be out of date, but are not causing any current harm because no one currently enforces them, perhaps because all of the compliance took place long ago. Thus, we should distinguish between laws that are obsolete and harmful, and which should be amended or repealed, and those which are just no longer relevant.

How about this for a first step? The president should direct one agency - I'll go along with Don Elliott's suggestion of the EPA - and direct that the agency head, perhaps using an advisory committee of various stakeholders, come up with five statutes or major rules that should be repealed or substantially amended. It should not be mission impossible to reach reasonable, but not necessarily total, consensus, and it should also be doable to get Congress to take the next step and actually make those changes. And then let's step back and see what has been accomplished. To put it bluntly, if we can't walk, then we should not be running off in new directions with proposals to alter the fundamental character of our system of checks and balances, even if they don't function quite as well as we wished.

-- Alan B. Morrison teaches constitutional law and other subjects at George Washington Law School

The root cause of obsolete law isn't really that it is harder to repeal than to pass laws. Congress can only take on a few big problems a year, usually in response to a crisis. Revisions of existing laws rarely rise to that level; most existing laws work badly, but tolerably badly, and thus do not rise above Congress's threshold of pain. Some of Philip Howard's proposed solutions could be worse than the disease because they require Congress to take up matters based on arbitrary sunsets. I agree with Alan Morrison (above): we need to be selective and focus our limited legislative attention on the "big items in the basement," those programs that a knowledgeable reviewing institution has judged the most in need of reform. Some group with a brain has to review existing programs, and suggest to Congress where its limited attention might make the greatest improvement and cause the least harm. The classic way to do this - used in many states and most of the rest of the world - are expert legislative revision commissions, which make recommendations to the legislature. Both Judge Calabresi and I discuss them in our contributions to this series.

-- E. Donald Elliott is a Professor (Adjunct) of law at Yale Law School and a partner in the Washington, D.C. office of the international law firm Willkie Farr & Gallagher LLP

For a number of years I was a Member of the New Zealand Parliament, during which time New Zealand, facing the same problem of obsolete and contradictory law, set out to clean up its statutes. The process we used was to systematically re-write the corresponding statutes of each sector of the economy we reformed - such as the tax code and health care - so that the laws were clear and unambiguous, and reflective of the needs of contemporary society. These re-written statutes were then passed by Parliament and all the related old ones were repealed. In my view this was a very effective process. New Zealand's environmental laws, for instance, went from being 25 inches thick to just 348 pages. The action of repealing all the old laws also automatically repealed all the regulations built on those laws so the regulatory code was cleaned up at the same time.

-- The Honorable Maurice McTigue, QSO, is vice president at the Mercatus Center at George Mason University, and a former member of the New Zealand Parliament

This article available online at:

http://www.theatlantic.com/national/archive/2012/03/obsolete-law-0151-the-solutions/255141/