U.S. Sens. Lamar Alexander (R-Tenn.) and Mark Pryor (D-Ark.) today introduced legislation to slow down “democracy by court decree” – the tendency of some federal courts to make decisions that should be left to elected state and local officials.
The Federal Consent Decree Fairness Act would provide relief to newly-elected state and local officials who inherit overbroad or outdated consent decrees that limit their ability to govern and respond to the priorities and concerns of their constituents. The bill would make it easier for state and local governments to modify or terminate federal court consent decrees to which they are a party. These consent decrees can last for decades, locking-in policies long after the officials who agreed to them have left office.
“This legislation would put decisions back in the hands of elected officials, who can be held accountable by the voters. That’s what democracy is all about,” Alexander said. “Instead of being free to make the policy choices they were elected to make, newly elected officials often find themselves restricted by the motions of plaintiffs’ attorneys and the policy choices of a federal court.”
Since Alexander and Pryor introduced an earlier version of their bill in 2005, a growing coalition has endorsed the need for federal legislation to address consent decrees, including: the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, the County Executives of America, the National Conference of State Legislatures, the American Legislative Exchange Council, the American Association of School Administrators, and the National Association of Police Organizations.
Alexander, Pryor, and the groups supporting federal legislation cite examples from around the country where existing consent decrees have limited the actions of newly elected officials:
· In Tennessee, a U.S. District Court judge ruled in 2005 – citing several consent decrees – that the governor could not scale back benefits for 300,000 optional beneficiaries of the state Medicaid program (known as TennCare) in order to save health care programs for children and to more fully fund educational programs. The state prevailed in part on appeal, but the inability to fully implement the governor’s reforms resulted in thousands of TennCare beneficiaries having their health insurance limited or cut altogether.
· In Los Angeles, consent decrees have forced the Los Angeles County Metropolitan Transit Authority to spend 47 percent of its budget on buses – leaving just over half the budget to pay for the county’s remaining transportation needs.
· In New York City, special education has been governed by a consent decree since 1979, thwarting efforts by successive mayors and schools chancellors to implement new reforms and updated policies for compliance with the Individuals with Disabilities Education Act (IDEA).
Alexander and Pryor emphasized that their legislation was intended to address weaknesses in current law while recognizing that consent decrees can be useful tools for averting prolonged legal battles, saving enormous court costs, and helping to ensure that federal rights are protected. The bill would only affect consent decrees to which state and local governments are a party, and would not affect consent decrees involving school desegregation or those resulting from litigation brought by the federal government.
In the Senate, Alexander and Pryor were joined by the following cosponsors: U.S. Senators Bob Corker (R-Tenn.), John Cornyn (R-Tex.), Ben Nelson (D-Neb.), Jon Kyl (R-Ariz.), Thad Cochran (R-Miss.), Kay Bailey Hutchison (R-Tex.), and Pete Domenici (R-N.M.).
Companion legislation in the House was introduced by Republican Whip Roy Blunt (R-Mo.) and Rep. Jim Cooper (D-Tenn.).
Ten members of the Tennessee congressional delegation have signed on to the bill in the 110th Congress: Senators Alexander and Corker; and Representatives Cooper, David Davis, John L. Duncan, Zach Wamp, Lincoln Davis, Bart Gordon, Marsha Blackburn, and John Tanner.
The attached one-page summary provides additional details about the bill.
Alexander-Pryor: Federal Consent Decree Fairness Act
Slowing Down “Democracy by Court Decree”
• Civil lawsuits filed against public schools, transit systems, and other state/local government agencies often result in consent decrees – judicial orders resulting from agreements brokered between plaintiffs and the public officials being sued. These decrees are binding, legal agreements specifying how a particular problem will be remedied.
• Consent decrees can remain in place for decades, locking-in policies that were agreed to by officials who are no longer in office.
• Newly-elected officials often inherit overbroad or outdated consent decrees that limit their ability to govern and respond to the priorities and concerns of their constituents. Existing procedures discourage current state and local governments from trying to modify or terminate those decrees.
The solution – the Federal Consent Decree Fairness Act
• Makes it easier for state and local governments to modify or terminate federal court consent decrees.
• Applies to federal court consent decrees to which a state or local government is a party. Does not affect decrees involving school desegregation or arising from lawsuits filed by the federal government.
• Provides a three-pronged approach:
o Creates “term limits” for consent decrees. After 4 years or after the state/local official who provided consent leaves office (whichever comes sooner), a state or local government could ask a federal court to modify or vacate the decree.
o Shifts the burden of proof. After a motion to modify or vacate a consent decree has been filed, the burden would shift to the plaintiff who filed the original lawsuit to demonstrate why continuation of the consent decree in its existing form is necessary to protect a federal right.
o Provides guidance for future consent decrees. The bill sets out a series of findings to guide federal courts, based on a 2004 decision by the U.S. Supreme Court suggesting that consent decrees should be narrowly drafted, limited in duration, and respectful of state/local policy interests and concerns.
• Lead Senate sponsors: Alexander (R-TN), Pryor (D-AR), Kyl (R-AZ), Nelson (D-NE), and Cornyn (R-TX).
• Companion bill in the House sponsored by Republican Whip Roy Blunt (R-MO) and Congressman Jim Cooper (D-TN).
• Overbroad or outdated consent decrees are a national problem:
o In Tennessee, hundreds of thousands of residents are having their health insurance limited or cut altogether because a series of consent decrees prevented the state from implementing Medicaid reforms – approved by the governor and the legislature – that could have preserved their coverage.
o In Los Angeles, consent decrees have forced the Los Angeles County Metropolitan Transit Authority to spend 47 percent of its budget on buses – leaving just over half the budget to pay for the county’s remaining transportation needs.
o In New York City, special education has been governed by a consent decree since 1979, thwarting efforts by successive mayors and schools chancellors to implement new reforms and updated policies for compliance with the Individuals with Disabilities Education Act (IDEA).
• In 2004, the U.S. Supreme Court expressed its concern that consent decrees may “improperly deprive future officials of their designated legislative and executive powers.” Such circumstances may lead to “federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.” Frew v. Hawkins, 124 S. Ct. 899 (2004).