Last week I introduced legislation to slow down democracy by court decree – the tendency of some federal courts to make decisions that elected state and local officials ought to be making.
The bill, the Federal Consent Decree Fairness Act, would make it easier for federal courts to do what the Supreme Court has recently said they should do in showing restraint while considering federal court consent decrees – judicial orders based on the consent of parties engaged in a civil action. It would also make it easier for state and local governments to amend federal court consent decrees to which they are a party. This legislation levels the playing field for defendant state and local governments by requiring plaintiffs to justify the continued existence of consent decrees after four years have passed or six months after voters have elected a new administration.
Consent decrees in federal courts can be effective judicial tools when drawn narrowly and with respect for state and local policy choices. But, in too many cases, consent decrees have instead sometimes become a means to “lock in” policies for decades after the state or local official that agreed to the decree has left. 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 policy choices of a federal court.
There are a variety of examples of how existing consent decrees have limited the actions of newly elected officials:
  In Tennessee, a U.S. District Court Judge recently ruled – citing several existing 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 low-income children and to more fully fund educational programs;
In New York, a 30-year-old consent decree has forced Hispanic children into bilingual education programs – over the objections of their own parents who want their children to learn English more rapidly in other education programs;
In Los Angeles, consent decrees have forced the Metropolitan Transit Authority to spend 47 percent of its budget on city buses – leaving just over half the budget to pay for all the rest of the transportation needs of the city of Los Angeles.
The legislation I introduced last week only affects federal court consent decrees to which state and local governments are a party and does not affect consent decrees involving school desegregation.
A great help in preparing this bill was the excellent work of New York University law professors Ross Sandler and David Schoenbrod and their book, “Democracy by Decree.”
Senators Mark Pryor (D-Ark.), John Cornyn (R-Tex.), Jon Kyl (R-Ariz.) and Ben Nelson (D-Neb.) have joined me in introducing this bill. Congressman Jim Cooper from Tennessee’s 5th District is introducing similar legislation in the House of Representatives.
The Federal Consent Decree Fairness Act comes at a time when President Bush has called on Congress to offer more flexibility to state governments to manage Medicaid. This bill is one way of doing that. In a broader sense too, this bill is one small piece of the effort to promote federalism in the United States.
State governments provide the basic necessities of life that citizens demand. They are the laboratories that can serve as models of good government that the rest of the country can follow. They are partners to the federal government – not wards of the federal government. It is time Congress begins to treat them that way.
This bill is the first of what I hope will be many steps toward restoring the relationship between the federal government and state and local governments that do so much.

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