Too Much Consent

Nothing in government lasts forever--but consent decrees come close. Is that necessary?

Posted on July 12, 2005

U.S. Senator Lamar Alexander, who may be the best friend states and localities have on Capitol Hill these days, wants to do them one more favor. Alexander is trying to put time limits on consent decrees--the court-brokered agreements that force governments to implement costly policies on health care, transportation, criminal justice, and a raft of other issues. It's not just that the decrees are expensive, it's that they almost never expire, and neither plaintiffs nor judges have any incentive to call them off, leaving mayors and governors handcuffed by deals their predecessors may have made decades ago. Alexander himself may feel some guilt about all this. An agreement he signed as governor of Tennessee in the 1980s is one of four legal deals bedeviling current efforts to shore up his state's TennCare health program. Those deals have prevented current Governor Phil Bredesen from adjusting the scope of coverage, obligating him to kick more than 300,000 adults off the rolls. Not surprisingly, constituencies that have benefited from consent decrees are hollering about Alexander's idea. They say the time limits he would place on consent decrees--four years or the election of a new governor or mayor, whichever comes first--are too short to be workable. Plaintiffs would have the chance to argue in court for extension of the decrees, but the burden would be on them to show why the decrees needed to continue. "If all you have to wait for is an expiration of an agreement," says AARP attorney Daniel Kohrman, "you have a pretty strong incentive not to comply." Criticism from plaintiff and beneficiary groups is predictable. What's more surprising is that Alexander has yet to find much backing among the state and local government lobbies in Washington. That may be because, whatever costs consent agreements may impose, they offer some short-term advantages that state and local officials are reluctant to surrender. For example, they allow cities to demand more program money from state legislatures than they would otherwise get, on the grounds that they're operating under court order. They also allow elected officials the excuse that their hands are tied. "It is not just judges who are activist," says Alexander. "It is mayors and governors who are inactivist and want to punt issues to the courts." Alexander has more than one crusade going on federalism. He's been arguing for the past two years against unfunded legislative mandates imposed by Congress that end up costing states and localities billions of dollars. He succeeded this spring in raising the number of Senate votes needed to approve a mandate to 60. On that subject, he's had pretty consistent support from the governments he's trying to help. He deserves some help on the consent-decree issue as well. Alexander's bill right now is too broad, but creating some mechanism for review would be a boon to state and local autonomy and fiscal health.