Morley on Consent Decrees

Michael Morley (Harvard) has posted Consent of the Governed or Consent of the Government? The Problems With Consent Decrees in Government-Defendant Cases to SSRN.

Consent decrees are a powerful mechanism through which government defendants can settle challenges to statutes and regulations, agency policies, and other administrative actions and determinations. Such decrees are troubling because they allow government agencies and officials to entrench their policy preferences against future change, impose legal restrictions and obligations on their successors, and constrain those successors’ discretion—all without following the procedures of Article I, § 7 or the Administrative Procedures Act, or a court determining that such relief is legally necessary. 

Consent decrees raise serious Article III concerns because a justiciable controversy does not exist when litigants have agreed on their respective rights and liabilities and seek a consent decree. That lack of adverseness between the parties should prevent a court from issuing a substantive judicial order that declares, establishes, or modifies the parties’ rights. Such litigants instead should be required to execute a settlement agreement, which is a private contract between the parties, and the court should dismiss the case. Limitations on government contracts such as the reserved powers doctrine and general prohibition on specific enforcement prevent settlement agreements in government-defendant cases from raising the same entrenchment-related risks as consent decrees. 

Justiciability issues aside, courts also lack a sufficient legal basis for issuing consent decrees in government-defendant cases. Such decrees cannot be justified by a government agency’s or official’s consent, because they lack statutory authority to bind their successors to their interpretations of legal provisions or to otherwise entrench restrictions on successors’ discretion. The decree similarly cannot be justified by the court’s inherent remedial authority, since a court does not determine whether a legal violation has occurred before approving a decree. 

If courts nevertheless continue to issue consent decrees despite the justiciability and statutory problems with them, significant modifications of present practice are necessary. A court should not issue a consent decree in a government-defendant case unless it confirms that the plaintiff has stated valid claims and that the relief is required to remedy the legal violations at issue. It also should require the government defendant to file an Anders-type brief to demonstrate that these requirements are satisfied, and allow for liberal intervention so that adversely affected third parties may argue against the proposed decree. This will ensure that courts have a valid basis for imposing such relief, and close a backdoor through which government litigants can improperly entrench their preferred policies, circumvent the traditional legislative and regulatory processes, and curtail the legal authority of successor administrations.