“Democracy by Decree”

Wall Street Journal Editorial

4/18/06

Miracles do happen. In Los Angeles last week a state judge lifted a consent decree issued in 1991 after parents filed a lawsuit claiming that public schools in poor neighborhoods had too few experienced teachers. The court has since ordered the school district to spend an average of $11 million a year on teacher training in certain schools. And now, almost 15 years later, the judge has finally declared herself satisfied and declined to extend the decree for another five years.

Other locales aren’t so lucky. Consent decrees are judicial decrees that enforce agreements between state and local governments and the parties suing them. But such decrees have proliferated to the extent that judges are micromanaging many public institutions in the name of protecting “rights.” And they’re costing taxpayers money and infringing on the right to self-government.

In New York, a 1974 federal consent decree has mandated bilingual education in the city’s schools for more than 30 years—even though many parents want no part of it. In Tennessee, a federal consent decree from 1979 prevents the state from requiring generic, rather than brand-name, drugs for Medicaid patients despite the fact that this is standard practice for many private drug plans and other state Medicaid programs. And in Los Angeles, a 1996 consent decree has forced the Metropolitan Transit Authority to spend 47% of its budget of city buses no matter what the MTA deems to be its priorities.

New York Law professors David Schoenbrod and Ross Sandler call this “democracy by decree,” or the process by which public-policy decisions are taken out of the hands of elected legislators and left to an unelected judiciary. Their 2002 book of that name is the inspiration for legislation introduced in the Senate last month that would limit the use of federal consent decrees.

The legislation’s sponsors are Tennessee Republican Lamar Alexander and Arkansas Democrat Mark Pryor. It’s no coincidence that both Senators were once state officials. “I’m looking at this as a former Governor,” says Mr. Alexander. “The idea is to try to let those who are elected make policy unencumbered by courts.” Mr. Pryor is a former Arkansas Attorney General. Similar legislation is pending in the House.

Consent decrees can be a huge burden on state and local officials. They sometimes last for decades, long after the officials who agreed to them have left office. Newly elected officials often find themselves locked in by the decrees, unable to put in place policies they were elected to implement. Outgoing officials have been known to sign their names to such decrees in effort to force their successors to go along with policies they oppose.

One part of the Alexander-Pryor solution is term limits—either four years for a decree, or the expiration of the term of the highest elected official who signed his name to it. Their legislation also sensibly shifts the burden of proof for modifying or ending the decree to plaintiffs from state and local governments.

The legislation endorses the view of a unanimous Supreme Court, which in 2004 called for limiting decrees. It warned in Frew v. Hawkins that federal consent decrees could encroach on state and local power. They may “improperly deprive future officials of their designated and executive powers,” the Court said. They may also lead “to federal court oversight of state programs for long periods of time even absent an ongoing violation of the law.”

There are federal consent decrees in force in al 50 states, with judges running prisons, schools, welfare agencies, health-care systems and more—based on the advice of the advocates who brought the original lawsuits. It’s time to turn those jobs back to the elected lawmakers, and it’s good to see at least someone in this ostensibly conservative Congress show some modesty about federal authority.