Senator Rick Scott and Simple Solutions

This is Joseph.

One of the most pernicious mistakes that I see if the common fallacy that complex problems can be solved by a simple solution. This is often accompanied by the conjecture that the people in power just do not have the willpower to implement the obvious solution. I see it a lot with the national deficit -- just spend less without grappling with the huge choices and constituencies that are involved.

Enter Rick Scott.

In his "Rescue America" plan he had the following:

All federal legislation sunsets in 5 years. If a law is worth keeping, Congress can pass it again. [Bold added by me]

 It has been replaced by:

All federal legislation sunsets in 5 years, with specific exceptions of Social Security, Medicare, national security, veterans benefits, and other essential services. If a law is worth keeping, Congress can pass it again. Note to President Biden, Sen. Schumer, and Sen. McConnell — As you know, this was never intended to apply to Social Security, Medicare, or the US Navy [Bold in original]

I think this change illustrates two things. 

One, upon close inspection all sorts of bad examples appear that look alarming. The example of the Navy jumps out immediately, but the US Navy is a construct of legislation and the idea that it would sunset every 5 years seems bleak. All you get is a ton of work constantly renewing legislation. including this one (unless it becomes constitutional). Other fun questions arise about all sorts of foundational laws. For example, the supreme court is mentioned in the constitution but all of the rests of the courts are established by legislation. 

Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress — at times there have been as few as six, while the current number (nine, with one Chief Justice and eight Associate Justices) has only been in place since 1869. The Constitution also grants Congress the power to establish courts inferior to the Supreme Court, and to that end Congress has established the United States district courts, which try most federal cases, and 13 United States courts of appeals, which review appealed district court cases.

For example, the size of the supreme court comes from the Judiciary act of 1869, which I do not see in the intended list of essential services. Reading the constitution, I see very few details and no support for the lower courts independent of legislation. So could the federal court system simply vanish because congress got distracted or gridlocked on another matter? One presumes that serious answers to these questions need to be thought about in advance. 

One also wonders about the 1790 residence act. Or the 1952 Immigration and Nationality Act. Or the 1878 Posse Comitatus act. This is really shooting fish in a barrel. There are hugely important laws that form the basis of civil society, which is why I bolded legislation in the first quote above. 

Finally, this is no longer simple. Now, every law has to be categorized as "sunset" or "doesn't sunset", a herculean task which could be equally accomplished by just having a plan to sunset unnecessary rules. No congress can bind a predecessor. But these sort of mass sunset plans tend to go poorly even when the laws in question are a small portion of the total.  Because current laws may have replaced other important laws and there are some quite unexpected interactions that occur. 

Now, old laws get struck down all of the time, although maybe this wasn't the example that Senator Scott was aiming for. But I think the real answer is that this document was rhetorical in nature, and not intended as a serious proposal. But I do think it illustrates the problems of "one simple solution" and the benefits of a careful engagement with the underlying issues. 

That said, I got this far without mentioning social security, so my editor will be annoyed. So let me say that I agree with Josh Marshall that the goal is to cut social security. I think that the coming demographic shift is unpleasant to deal with -- there is no way to keep benefits at current levels indefinitely and not raise additional revenue. I do think that the sums involved are a lot more modest than the doomsayers say, but that they are enough to cause some pain. This is a hard problem, which is why it has not been simply solved already. But fixing it requires a real discussion about trade-offs and not a simple idea.