Subcommittee Statement Regarding The Federal Consent Decree Fairness
Washington,
Jun 21, 2005 -
For 40 years, federal courts have issued a significant number of consent decrees that require state and local governments to comply with certain legal requirements affecting social, environmental, health, and educational issues.
These consent decrees, often known as “public law litigation” or “institutional reform decrees,” place the trial courts in the business of public administration.
State run services such as school busing, Medicaid, mental health facilities, prisons, and special education all have been the subject of federal lawsuits.
It is not unusual for these federal consent decrees to span 20 to 30 years and tie up significant portions of state and local budgets.
Due to the contractual nature of a consent decree, future administrations are also bound by the original terms.
Under many consent decrees, traditional roles of state or local government officials are shifted to the judge and the lawyers involved in negotiating the consent decree.
The end result is that state and local governments lose their ability to function democratically.
Bound by federal consent decrees, elected officials are less able to balance political and budgetary interests when legislating.
Nor can these officials react and adjust to unforeseen constituent or budgetary needs as they arise.
In Frew v. Hawkins—a case that dealt with the Texas Medicaid system— The Supreme Court commented extensively on the effects of unnecessarily rigid consent decrees. The Court cautioned judges that consent decrees may undermine democracy and flexibility in government and admonished judges to be more flexible when state officials seek to modify the terms of existing consent decrees.
In light of Frew, the hearing today represents a timely forum to discuss the burdens placed on state and local officials who must comply with detailed consent decrees.
While the Supreme Court reiterated that judges are not free to ignore rights, they also urged judges to defer to state and local officials when they act as agents for the government.
The Frew court also warned judges against tying state and local officials to the contractual obligations developed by predecessor groups of plaintiffs and defendants.
H.R. 1229, the “Federal Consent Decree Fairness Act of 2005,” introduced by Congressmen Blunt and Cooper, allows governments to revisit consent decrees in federal court.
The bill allows a state or local official to seek a motion to modify or vacate an already existing consent decree.
This bill, in the spirit of the Frew case, enables state and local governments to seek redress in federal court when existing consent decrees become too burdensome or obsolete.
As Justice Kennedy stated in Frew:
The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes.
Congressmen Blunt and Cooper’s bill is a positive step in giving democratic responsibility to those who are the most responsive to the needs and wishes of the people: their elected representatives.
The authors of Democracy by Decree, both former public interest lawyers, write that, “… democracy by decree is a good thing gone wrong: It goes beyond the proper business of courts; it often renders government less capable of responding to the legitimate needs of the public… Democracy by decree works fine in pointing out what went wrong, but it works badly in putting things right.”
Consent decrees can serve a valuable purpose by allowing those whose rights have been violated their day in federal court.
But the current rigid system does not preserve the flexibility necessary for elected representatives to discharge their responsibilities.
I thank the Majority Whip for his work in this area and I recognize the Ranking Member for his statement.
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