Free the People’s Choice

When outdated consent decrees stifle policy decisions, it’s time to restore democracy.

Posted on April 4, 2005

Imagine yourself the governor of a state grappling with a broken public health care system. Your goal is to cover the greatest number of people—particularly children—with the best medicine available. But costs are spiraling out of control, so you and your staff craft a reform package that balances the health care needs of low-income citizens with the fiscal realities of the state budget. The task is tough, but this is why you ran for public office. The story should end there, or, at least, you’ve reached the point when you would present your plan to your fellow elected officials in the state legislature, and they take a vote—representative democracy at work. Only that’s not what’s happening in states around the country, whether the issue is health care or transportation or education. Instead, the hands of governors, mayors, even school boards have been tied by costly and restrictive consent decrees handed down by federal courts, sometimes decades before. These judicial orders result from agreements brokered between public officials and plaintiffs engaged in civil court actions. Once these decrees are set, they are very difficult to change, making reform and common-sense adjustments over time virtually impossible. The result is what New York Law School professors Ross Sandler and David Schoenbrod call “democracy by decree”— public institutions being taken out of public control and placed in the hands of an unelected federal judiciary. There are times when this is absolutely necessary, when state and local governments defy federal law and congressional intent. Desegregation is the best example. In the civil rights era, the judiciary had no choice but to exercise control over public institutions in order to guarantee African-Americans their constitutional rights. While ensuring that states follow the rule of law, consent decrees can also preserve the separation of powers and uphold the ideals of federalism. Unfortunately, in many cases, they have done just the opposite. ROADBLOCKS TO REFORM The hypothetical I offer above mirrors what is currently happening in my home state of Tennessee. Three specific consent decrees blocked the implementation of Democratic Gov. Phil Bredesen’s initial Medicaid reform package, which would have preserved coverage for all 1.3 million enrollees of TennCare, the state’s Medicaid program. His plan was passed overwhelmingly by the state’s General Assembly and endorsed by major stakeholders in the program, from patients to providers. But mandates set forth in these consent decrees—which far exceed federal requirements—limited the governor’s policy choices and continue to drive up program costs. As a result, Bredesen was recently forced to devise a new reform strategy, which would cut 323,000 adults from the program and reduce the benefits of the remaining 396,000 adults. Citing the consent decrees, the courts are now blocking this proposal as well. The consent decrees cover a range of health care issues. One signed by U.S. District Judge John Nixon in 1979, known as the Grier consent decree, prevents the state from placing reasonable limits or controls on prescription drugs, including the use of cheaper generics in lieu of expensive brand-name pharmaceuticals. As a result, Tennessee now spends more on TennCare’s pharmacy benefit than it does on higher education. The John B. consent decree, signed by Judge Nixon in 1998 and revised in 2001 and 2004, imposes a host of special requirements for children. From one line of federal code, the court entered a consent decree that established a requirement that Tennessee offer medical screenings to 80 percent of the state’s children—a laudable public policy goal but one that should be set by the elected officials whose job it is to manage the program. Finally, the Rosen consent decree, signed by U.S. District Judge William Haynes in 1998, prevents TennCare from limit- ing enrollment when a person is part of an optional Medicaid population or when a person’s eligibility for the program cannot be determined. To make matters worse, on Jan. 29, 2005, Judge Haynes took his authority under that consent degree a step further: He declared that he must approve any changes to the TennCare system that would reduce enrollment. With the budget clock ticking, Tennessee’s state legislators are now waiting for a U.S. district judge to give them permission to do their job. And Tennessee isn’t alone. There are consent decrees in all 50 states on issues ranging from prisons to child care. In Los Angeles, a consent decree entered in 1996 by U.S. District Judge Terry Hatter Jr. has forced the Metropolitan Transit Authority to spend 47 percent of its budget on city buses, leaving just over half of the budget to pay for the rest of the transportation needs of the nation’s second-largest city. In New York, a 1974 consent decree entered by U.S. District Judge Marvin Frankel has been mandating bilingual education for more than 30 years. The result is that public schools, which should be vibrant, learning, changing institutions, have no choice but to force students into outdated bilingual programs, even over the objections of their parents. A BETTER SOLUTION The solution to the problem of democracy by decree is a balanced system that protects the rights of individuals to hold state and local governments accountable in court, while preserving our democratic process through narrowly drawn agreements that respect elected officials’ public policy choices. These goals are not incompatible. Last month, I introduced the Federal Consent Decree Fairness Act, bipartisan legislation that does both by establishing new principles and procedures for establishing, managing, and, ultimately, terminating court supervision. The bill takes a three-pronged approach: First, it lays out a series of findings to guide the federal courts in approving future consent decrees. These findings give congressional endorsement to the Supreme Court’s call for limiting decrees, as it did in Frew v. Hawkins in 2004. The findings also advocate the entry of consent decrees that take into account the interests of state and local governments and give due deference to their policy choices. And they make it clear that consent decrees should contain explicit and realistic strategies for ending court supervision. Second, the bill places “term limits” on decrees, giving states and localities the opportunity to revisit them after the earlier of four years or the expiration of the term of the highest elected official who consents to the agreement. These time frames give consent decrees an opportunity to succeed, while not tying the hands of newly elected officials. They also prevent outgoing officials from agreeing to consent decrees as a way to lock in their successors to policies those successors would not normally support. Finally, this legislation shifts the burden of proof from state and local governments to the plaintiffs in the case for purposes of the motion to vacate or modify the decree. Currently, a consent decree can be vacated or modified only following a showing by the defendant state or local government that circumstances have so significantly changed as to render the decree unworkable. The practical effect is that they must prove a negative —that the decree is no longer necessary. Yet if the purpose of the original agreement was to protect the plaintiff, it’s logical that the plaintiff should demonstrate whether continued protection is justified. RESPECTING DEMOCRACY The goal of the Federal Consent Decree Fairness Act is to ensure that when a federal right is no longer threatened, a consent decree meant to protect that right can be expeditiously ended. When the purpose of the decree has been met, or circumstances have significantly changed, or later officials propose new and improved solutions to a problem, there needs to be a better way to remove the strictures of a consent decree. The Federal Consent Decree Fairness Act would not impact the court’s jurisdiction. It wouldn’t eliminate consent decrees or even nullify existing ones. And it exempts desegregation cases. The bill merely creates a new judicial procedure that allows state and local governments to request a review of the consent decree under a shifted burden of proof. The intent here is not to diminish the role of the federal courts. Consent decrees are important tools of federalism because they ensure that no government is above the law. From a practical perspective, they save enormous court costs and prevent damaging legal battles. Rather, the goal is to level the playing field for state and local governments. There is no democracy when federal courts run police departments, school districts, foster care programs, and state insurance programs. Judges are not public policy experts, and they are not accountable to the electorate for the choices they make. While the Supreme Court upheld the consent decree in Frew, its opinion captured the problem: “If not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state officeholders may improperly deprive future officials of their designated and executive powers. They may also lead to federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.” The Frew Court rightly focused on the encroachment of federal power over state and local governments. Our nation’s founders envisioned a dynamic but separate relationship between the federal government and the states, and among the three branches of government. The 10th Amendment is clear in its delineation of responsibility: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And while The Federalist No. 48 sets forth the idea that some connection between the two levels of government is necessary, its writer, James Madison, issues a clear warning: “It is equally evident that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers.” Consent decrees have, unfortunately, evolved into a mechanism for the federal judiciary to exercise “an overruling influence” on many state and local governments. Reform is desperately needed to fix this broken system. Democracy by decree is no democracy at all. Lamar Alexander is a Republican senator from the state of Tennessee. © 2005 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • subscriptions@legaltimes.com • www.legaltimes.com). WEEK OF APRIL 4, 2005 • VOL. XXVIII, NO. 14