Why can't laws be shorter?

Question

The Constitution of United States and the amendments contains 7,591 words. Assuming it was typed out in a normal font and size that's about 27 pages (275 words a page). The Constitution creates a government with three branches of government and it divides the power between federal and state governments.

Would limiting law length to be less than the Constitution (at the same font and font size) severely affect laws? Why can't the legislative branch come out with shorter laws (and hopefully easier to understand)?

Long and complicated laws

• Obamacare/Affordable Care Act without the regulations is 906 pages
• Tax Code (Title 26) is 6,544

Answer 1

The Purpose of those Laws

The Constitution serves a difference purpose than other laws. The Constitution provides a skeletal outline of our government, but it doesn't provide specifics. Other laws can be used to fill in those gaps.

For example, the Constitution has only a few lines about elections. Consider that everything said about the House of Representatives elections is:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature

This is sufficient for a Constitution, but is not nearly enough information to actually have an election. When exactly do elections happen? How are they organized? Who pays for them? Who is allowed to run? How are ballots managed? What are the rights and responsibilities of someone campaigning? If you tried to actually have an election based only on the Constitution, you would be very confused.

Compatibility with Existing Laws

All of those words in a law mean something - they aren't just filler. Laws are drafted by lawyers (in states through offices like the Revisors of Statute). Each bill drafted has to be incorporated into the corpus of existing laws. Specific information may be required to accomplish this. A law which touches on multiple issues will likely have to be incorporated into a number of existing laws.

You might think of laws like a building. The Constitution is like a frame. A new room is always more elaborate than the frame and more complicated - you have to coordinate all the electrical, heating, water, sewage, et cet. into the existing building's structure.

Laws Provide Instruction

Laws also provide instruction to a large number of people. A law has to provide instruction to the executive branch so they know how to implement the law. It must instruct judges how to interpret the law and the penalties appropriate for violating it. If the public are expected to comply with the law, then there will be additional information directing members of the public what (exactly) they need to do to comply.

Legislators often want to address all of these possibilities directly to make sure that their intent is carried out. Once a law is passed, it is largely outside of the legislature's hands - they don't have any strict control or compliance mechanisms unless the law says it does.

Answer 2

To answer your second question first, the Congress can and does come out with shorter bills that have discreet purposes. For example, the Terrorist Designation Act is just a scant 3 pages long. It hasn't been given a Senate or HR number as of yet.

However, you are correct that sometimes Public Laws (bills that are signed into law by the President) can be excessively lengthy. And I hope this answers your second question: would it severely affect laws. While that's more or less an opinion based answer, what we do know is that it would severely affect how laws are currently written and passed.

The phenomena you describe is called "Hyperlexis", the idea of too much law. You are touching on individual laws being too long, which is part of it, but other aspects include the sheer number of laws and regulations that affect almost every single aspect of our lives. Another aspect of this is over criminalization of standard behaviors. See for example Three Felonies A Day: How the Feds Target the Innocent whose author contends that every American, you guessed it, commits on average 3 felonies in a day.

And there is sort of, kind of a consensus among government officials that it has gotten a little out of control, including the size of legislation:

Though they differ in their respective techniques, Congress, the President, and the Supreme Court all have recently taken steps expressly calibrated to curb or even reverse the growth of federal law. Some of these measures attempt to reduce burdens on regulated entities, others aim at cutting the raw number of regulations or reducing the number of pages of laws, and still others attempt to simplify the law.

The link is in the Fordham study below.

So why are laws verbose?

First is complexity. Business, technology, medicine, ethics, are all complicated things and require mechanisms, review boards, funding, enforcement provisions, feedback loops, and other things to work.

Second, as Richard "Dick" Lipton explains in the American Bar Association Tax Lawyer article "Hyperlexis" (which I can't link here) legislators in an attempt to curtail bureaucratic discretion draft more and more complex and arcane laws to clarify Congressional intent. Incidentally, this has had little to no effect in the proliferation of regulation, that is both verbose and sparse legislation leads to Hyperlexis.

Finally, another reason complexity and length is allowed or promoted is because of ill-intent of Congressmen that seek to hide true intentions in dense, unreadable, encyclopedic laws. The first example of this is insertion of provisions in bills that benefit, or harm, a very narrow set of people or groups. These types of benefits are called loopholes, and in some instances come close to be considered Bills of Attainder, which are prohibited in the Constitution. Another version of this is "Earmarking", which funds special projects of dubious public usefulness that benefit a single Congressman. One of the last versions concerns Omnibus Spending, which means wrapping up all spending into one bill:

With so many bills and areas of possible disagreement between the House and Senate, it is not surprising that Congress has difficulty passing each appropriations bill in regular order. As the fiscal year ends, leadership in both chambers will often negotiate on passing all the bills together in one combined package, known as an omnibus bill. On certain occasions, where less controversial bills have been passed into law, a package of the remaining appropriations bills will be bundled to finish funding work, and this package is known colloquially as a “minibus.” The omnibus approach allows for greater range of negotiation than any individual bill would and also makes a possible presidential veto over a particular issue less likely.

The Omnibus process, a derivation from normal order, almost always means less Congressional oversight of agencies, and budgets being funded at historical levels, irrespective of programs' effectiveness.

I'll leave the final word on this topic to a law review article from Fordham

Where does that leave us? Part III begins by noting that for all the arguments put forth about hyperlexis, an argument that is not made is perhaps the most significant. Critics of hyperlexis have failed to supply a reason to think that the proliferation of laws thwarts democratic preference. Without a convincing account of a public-choice pathology responsible for the uncontrollable generation of hyperlexis, why should hyperlexis should be treated as anything other than an unobjectionable consequence of the ordinary processes of democracy?

Answer 3

It is helpful to understand that a lot of language contained in statutes do not create private law obligations (i.e. things that you could sue another private individual over) or generally applicable public law obligations (e.g. crimes and tax laws applicable to ordinary individuals).

I have a set of state statutes in my office that can no longer fit on a single shelf of my book case, and my unannotated version of the tax code runs two thick volumes, plus six volumes of regulations.

But, 95%+ of the lawyers in the state use less than 10% of the statutes by page length, on any regular basis, and I probably use only 10% of the tax code and 5% of the tax regulations despite having an extremely broad tax practice in terms of the variety of subjects I deal with compared to the average lawyer who does tax work.

A very large share of statutory language is a blueprint setting forth the structure and organizational (constitution-like) operating rules of a vast governmental bureaucracy, and don't impose either private law or public law obligations on any private individuals.

Another very large share of statutory language creates legal obligations related to the regulation of very complicated activities that have application to a very small subset of people.

For example, there are lengthy, detailed and complicated laws that explain what public utilities that operate power plants must do in order to protect the environment from pollution.

Similarly, the tax code contains lengthy and difficult long sections pertaining to the tax treatment of mergers and breakups into multiple companies of publicly held companies, and the tax treatment of related companies in multinational groups of affiliated companies, that have to be very detailed in an effort to prevent taxes from being avoided by restructuring a transaction in a way that wouldn't otherwise be considered or make economic sense. These provisions are added to piecemeal every time some new loophole is discovered.

The tax code also has sections almost as long as the entire tax code applicable to ordinary individuals who earn wages and salaries to cover specialty topics like how to determine the taxable income of an insurance company.

Almost every specialized and technical industry has its own lengthy and detailed set of state and federal laws regulating them in multiple respects. There are laws regulating credit reporting agencies, laws regulating bond rating agencies, laws regulating banks, regulating savings and loans, regulating credit unions, regulating financial institutions that lend to credit unions, establishing and regulating the federal reserve, regulating mortgage financing, regulating automobile financing, regulating export-import financing, and so on and so on.

Probably half of the legislative output in any given year establishes that year's governmental budget and appropriations for the current fiscal year, agency by subagency by program by earmark by footnote.

Most long laws, like the ACA or Tax Code, are really just a collection of a lot of little laws.

The ACA has a law establishing a federal health care exchange, a law establishing state health care exchanges, a law creating new departments and sub-departments within the department of health and human services with all of the details about civil service rules, procurement and establishing regulations that that entails, a law governing how insurance companies can set rates and decide to allow customers to buy insurance, a law governing how much money insurance companies have to spend on patient care, a law on what insurance policies have to cover, a law on Medicaid expansion, a law on controlling government program spending on health care, a law on gathering information about health care, a law creating a new payroll tax, a tax law governing credits and penalties for people who do and do not pay health insurance, a law on medical privacy, a law on professional liability, a law on medical education standards, a law on funding for medical education, etc.

Many of the individual sub-laws in the ACA are quite manageable in length, put if you create 30-40 different sub-laws with an average of 25-30 pages each, before you know it, you've got a 900 page long omnibus bill.

The tax code covers not just income taxes, but gift and estate taxes, payroll taxes, gas taxes, bow and arrow taxes, firearm taxes, corporate taxes, partnership taxes, cooperative taxes, non-profit sector regulation, pension taxation, expatriation taxes, tax penalties, and the organization of the Internal Revenue Service. Again, there are lots of little sub-laws in there, many of which have little relevant to the vast majority of people, that cover detailed situations and the administration of other parts of the law.

Answer 4

A simple example of the reason laws are long. You cite the Constitution as an example of how laws can be shorter--but what exactly does the second Amendment mean?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There has been a longstanding debate as to whether the right to bear arms is restricted to those in the militia or if it applies to everyone.

The problem is that short statements are hard to not make ambiguous or have loopholes.