June 2005

Government by Consent Decree?

Senator Lamar Alexander (R-Tenn.) and Representative Roy Blunt (R-Mo.) have introduced legislation to curtail and amend federal court consent decrees. Such decrees, often running for many years or even decades, subject the state administration of federal programs to ongoing judicial oversight and management. Supporters of the legislation argue that consent decrees violate federalism principles and often bind state legislatures and local officials to “locked in” policies long after the original offense could have been addressed by legislative or administrative means. Opponents object that the proposed legislation threatens both judicial independence and the litigants’ statutory rights. At a June 9 AEI Federalism Project event, the sponsors of the “Federal Consent Decree Fairness Act” joined AEI’s Michael S. Greve, Wade Henderson of the Leadership Council on Civil Rights, and Simon Lazarus of the National Senior Citizens Law Center for a panel discussion on consent decrees and the proposed reforms.

The Honorable Lamar Alexander
U.S. Senate

This legislation germinated from the book Democracy by Decree by Ross Sandler and David Schoenbrod. This book chronicles several difficulties of consent decrees as they exist today: many decrees are outdated; there is no real record of all existing decrees; and there is very often no knowledge of who is in charge, among other problems.

I look back to my experience as governor. Tennessee desires to get health care spending under control in order to provide better education opportunities. However, the governor cannot simply propose legislation. Instead, he must persuade two federal judges who effectively run the TennCare system according to three consent decrees--of course, these judges are not elected. In essence, Tennessee cannot manage its own policies through the channels of democratic government.

This proposed law would remove this impediment to government in three ways: First, it would place term limits on consent decrees. Second, it would place the burden of proof on the plaintiff in order to keep the decree in place. Third, the bill, borrowing from the Supreme Court’s language, would return responsibility to state and local governments. The Senate version of this bill does not affect any consent decrees dealing with school segregation. And, it is important to note, the federal courts are not removed from the process.

The Honorable Roy Blunt
U.S. House of Representatives

This bill, from my point of view, is more about inactive public officials than it is about overly active judges. Public officials hide behind consent decrees, claiming that they cannot accomplish the duties of their offices because they are bound by consent decrees. Once this legislation passes, public officials will have the ability--indeed, the obligation--to get these consent decrees off the books.

We have examples of cases from Missouri dating back to 1983 that now direct a disproportionate share of funding to one county. In some instances, consent decrees from the 1970s bind us to outdated mental health policies. And, if one looks to Los Angeles, one sees that a consent decree forces 47 percent of the county budget into the transit system.

Simon Lazarus
National Senior Citizens Law Center

Schoenbrod and Sandler also cite examples of successful consent decrees. Such decrees are successful because they are shaped by the consent of all parties, including public officials. In these cases, consent decrees allow good administration of statutory mandates.

The proposed legislation is unnecessary and would be ineffective if passed. Furthermore, though this is obviously not the intent of the sponsors, it would do grave damage to a number of statutes, inasmuch as consent decrees offer a successful modus operandi for the administration of federal statutes.

On June 3, a consent decree involving the EPA and Wayne County (Detroit) was terminated successfully after eleven years. Because of this decree, Wayne County has revamped a sewage system that had previously been overflowing sewage into the local river. This success would not have been possible under the proposed legislation. Many consent decrees need to last longer than four years.

Consent decrees are a sensible option. All parties work out a mutual solution. The parties themselves know how to end them and what time to end them. If any consent decrees are sitting dormant, we must ask, “Why?” Why weren’t they fulfilled? They are, after all, flexible.

We must be careful with “one size fits all” legislation.” Consent decrees leave the state courts to apply the Frew v. Hawkins test to which Senator Alexander alluded. And if one worries that judges have too much control, one need only look at the example of the Sixth Circuit’s reversal of a TennCare decree.

Michael S. Greve
AEI

Congressman Blunt’s analysis is correct. This is as much about public officials shirking responsibility as judiciary invasion.

Only the United States and Canada allow privately enforceable mandates. Other countries, Austria for instance, are committed to the welfare state, but they recognize that autonomous administration by states is an important part of federalism. Consent decrees represent the welfare state run by subterfuge; these private-enforcement provisions allow that. Because of the consent decrees, no single institution takes responsibility for the spiraling expansion of these programs. If it were up to me, I would repeal all private-enforcement provisions in the federal code and allow state and local governments to run their own programs.

Because of this bill, requests for termination can be decided in three ways. If the right that was violated is still being violated, relief continues. If the right that was violated is no longer being violated, the decree can be terminated. Or, and this may be the most common, a right was never violated in the first place, in which case, the decree should be terminated.

This legislation is a step in the right direction, but even it may not provide enough incentive for state and local politicians to take responsibility.

Wade Henderson
Leadership Conference on Civil Rights

Federal law already permits the modification or termination of consent decrees. As is written in the unanimous Frew v. Hawkins decision, “If the state establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.”

Historically, consent decrees have proven instrumental in advancing and enforcing equal opportunities for all. The struggle for equal rights and equal opportunity has often required the intervention of federal and state government by legislative and non-legislative means. Still, federal intervention has not fully achieved equal opportunity. Private attorneys general and organizations like ours play an important role in ensuring that federal equal opportunity statutes are enforced. Moreover, these attorneys and groups represent people who often do not have access to the corridors of power. We rely on consent decrees to advance a common agenda.

This bill exempts education cases because, as Senator Alexander pointed out, education is tied tightly to equal opportunity. The rationale behind this exemption can be applied to other areas of enforcement because opportunity has still not been uniformly applied. For example, a case involving the Mississippi Highway Patrol took thirty-four years to resolve. It came to a successful completion this year. This consent decree worked precisely because no party was able to walk away.

Change can be glacially slow; consent decrees provide a fruitful method for enforcing change. While the present formulation of the consent decree process is imperfect, the problems of the process hardly require a solution of the magnitude proposed. This is the equivalent of “using an elevator to crush a nut.”

Congressman Blunt

I do not agree with everything that Wade Henderson said, but he did make a good point regarding civil rights. For that same reason, the House version of this bill has exempted all civil rights cases. The Senate bill exempts education cases.

In response to Sy Lazarus, I would like to point out that many projects may take longer than four years but do not need to be overseen by a federal judge throughout the process. This legislation allows elected officials to deal with the problems in the manner they think best. This legislation obliges public officials to explain why the court should be responsible for these projects rather than the official himself.

There is nothing in this proposal that automatically ends consent decrees. There is, however, this new obligation of responsibility on the part of elected officials.

Michael S. Greve

I have two remarks regarding Frew v. Hawkins. First, Miller v. French regarding the Prison Litigation Reform Act holds plainly that there is no problem with Congress passing something much like this legislation.

Second, there are many more Supreme Court exhortations to trial judges to limit consent decrees and to be careful in using their authority. In three or four school desegregation cases, the Supreme Court has said that the decree must end when the violation ends.

Simon Lazarus

This bill does more than simply shift responsibility. This bill stipulates that a decree terminates ninety days after a request for termination or modification has been filed, unless a decision has been made on that request. A Clean Water Act case, for example, cannot be tried in ninety days. These cases cannot be litigated appropriately in the time period.

The bill also requires that a decree ends if it is not necessary to enforce a federal right. “Federal right” has become an esoteric term-of-art, and we do not know how courts will interpret this. In any case, there is no “federal right” to the enforcement of the Clean Air Act. There is a distinction between a requirement of federal law and a “right” to enforce it. It is possible that consent decrees affecting many important statutes would be terminated by this bill.

Finally, the four-year limitation on consent decrees entailed in this bill would essentially remove consent decrees as a litigation option. They would become worthless.

Senator Alexander

The suggestion has been made that this bill would end federal court consent decrees. This bill would not end one single federal court consent decree. This bill merely changes the procedures for modifying or vacating a consent decree. It allows a newly elected official to assume authority in policy matters more easily. But it is still at the judge’s discretion. No consent decree is ended by this bill.

Ninety days may seem a short period of time, as Sy said, but each month of judicial oversight in the TennCare case costs Tennessee about $43 million. The case does not have to be decided in ninety days, but with so much money at stake, there should at least be a decision made as to whether to continue or to vacate the case.

One of the main problems is that these decrees amount to an “unfunded federal mandate.” In the Wayne County case, the EPA orders that changes be made but sends no money to fix the problem. Wayne County, in turn, must divert money from a host of other programs, such as police salaries and programs for disabled children. Unfunded mandates obviate local government by elected officials.

As for the definition of “federal rights,” the framers arranged for the courts to define federal rights. This bill aims to return policy decisions to elected officials and to leave rights decisions in the federal courts.

I am sympathetic to the reliance of the Leadership Council on the federal courts; much of the progress of the civil rights era depended on the intervention of federal courts. Indeed, I worked for Judge Wisdom when he decided the James Meredith case. However, Judge Wisdom did not require a consent decree. He decided the case and then allowed the state to retain its authority. I hope that we will continue to leave the door open to the federal courts in civil rights cases.

At the same time, I hope that the necessities of the past will not render our government ineffective today. We took out the school desegregation cases for this reason, but we plan to rely on elected officials in other cases.

Wade Henderson

Federal courts have been influential in the advance of civil rights, but they have not been a perfectly consistent ally in favor of civil rights and in disregard of the rights of states.
The House bill’s exemption of civil rights reflects a commitment to advancing civil rights goals, but there exists the difficulty of “the fallacy of the misapplied category.” Many cases may not seem to be civil rights cases but are at the intersection of environmental and conventional civil rights analyses. A sewage problem in a poor community serves a good example.

Furthermore, consent decrees relieve otherwise painful findings processes. Pressing a case may salt the wounds and impede resolution of the problem. To the extent this legislation forecloses consent decrees as a valid litigation option, plaintiffs will fight more ferociously to establish findings in order to allow remedies that both parties would have accepted in the absence of findings. Because the proposed legislation would limit consent decree life, each case must now push to conclusion.

Shifting the burden of proof is more than a flick of the switch. These cases are difficult to prove in the first place; they will become all-but impossible after the fact, when the government may be in a different posture.

Current law already provides for modification and termination of consent decrees. This legislation is redundant and unnecessary.

Michael S. Greve

Simon Lazarus and Wade Henderson have suggested that these cases should not be pressed to the liability stage for reasons of flexibility. That mentality can become very dangerous in itself. Precisely because neither side wants to go to the liability stage, the parties enter consent decrees that allocate billions of dollars without any finding that there was a violation.

Furthermore, no one is ever held to account for these charges. Allegations that a government body intentionally discriminated on the basis of race in 2005 ought to be brought to liability. It would be irresponsible not to hold someone to account.

Simon Lazarus

To Michael Greve’s point, I respond that consent decrees are negotiated because the party initiating the negotiation believes that it is at fault. Parties do not enter decree discussions when they think that they are going to win the case.

More importantly, to address Senator Alexander’s point, consent decrees as they stand now do not pit unelected judges against elected officials. Instead, consent decrees arise from the disconnect inherent in laws passed by senators and congressmen but administered and implemented by local officials. The instability arising from the two levels of democracy leads to consent decrees. Consent decrees administered by federal judges save state and local officials from vast federal regulatory agencies overseeing every parochial concern.

Also, federal court oversight fosters a greater public visibility of the whole process than alternative processes.

Senator Alexander

This bill, I repeat, will not take one single case out of one single court. The judge must still consent to the modification or termination. The sheer number of cases in federal court presently offers the best evidence that this will not take cases out of court.

Questions and Answers

This bill defines consent decrees as a judgment in which the state has in any way acquiesced. If private litigators bypass the consent decree option, take more time, and prove the liability, this bill may still affect the case. When a court rules, the judge usually asks both sides to propose terms for a judgment so that the judge does not have to parse through the messy details. If the judge accepts any of the state’s proposals, is that judgment subject to your bill, despite the fact that it is pursuant to a judgment at the end of the process?

Senator Alexander

I have not fully considered that question. My initial guess is that this bill would not affect those judgments, but the question merits further study.

This summary was compiled by Will Wilson based on a transcript of the event.