By Larry Jones
October 3, 2011

Representative Jim Cooper (TN) introduced on September 23 the Federal Consent Decree Fairness Act (H.R. 3041). This legislation would limit the duration of federal consent decrees that state and local governments enter into to settle legal dispute with private parties. These decrees are enforced by federal judges who make policy decisions that are usually made by state and local officials. And they often remain in place for decades and lock in policies that were agreed to by state and local officials who are no longer in office.

For example, Tennessee adopted reforms to the Medicaid program in 2004 that were blocked in federal court because they ran afoul of consent decrees dating back to 1979. This resulted in increased costs for taxpayers and the loss of coverage for many enrollees. In another example, special education in New York has been governed by a consent decree since 1979, thwarting efforts by successive mayors and school chancellors to put in place new reforms and updated policies for implementing the Individuals with Disabilities Act.

The proposed legislation addresses these and other concerns raised by the Supreme Court in Frew vs. Hawkins, 540 U.S. 431 (2004). Under the bill, rather than allow a consent decree to continue for an indefinite period, state and local governments would be allowed to file a motion to modify or terminate the consent decree: (1) four years after it is entered by the court; (2) when the term of office expires for the highest elected official in the state who is a party to the consent decree; (3) when the term of office expires for the highest elected local official in the local government who is party to the consent decree; (4) for appointed state or local officials who authorize consent decrees, when the term of office expires for the elected official who appointed the official, or the highest elected official in the state or local government; (5) the date otherwise provided by law.

In its unanimous decision in the Hawkins case, the Supreme Court found that:

• Federal consent decrees may last for long periods of time even absent an ongoing violation of federal law;

• Federal consent decrees may improperly deprive future officials of their designated legislative and executive powers, if not limited to reasonable and necessary implementations of federal law;

• The Federal court must exercise its equitable powers to ensure that when the objects of the decree have been met, responsibility for discharging the state's obligations is returned promptly to the state and its officials;

• Public servants must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities;

• A state depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources.

Similar legislation is expected to be introduced in the Senate soon by Senator Lamar Alexander (TN), who has sponsored the bill in the Senate since 2005. The proposal enjoys bipartisan support in both chambers of Congress and is supported by the Conference of Mayors and other state and local groups.