[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Senate]
[Pages 5902-5903]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            CONSENT DECREES

  Mr. ALEXANDER. Madam President, I will ask unanimous consent to have 
printed in the Record an article I wrote, which appeared in the Legal 
Times for the week of April 4, entitled ``Free the People's Choice.'' 
This involves a piece of legislation that Senators Pryor and Nelson on 
the other side of the aisle and Senators Cornyn and Kyl on this side of 
the aisle and I have introduced, which would make it possible for newly 
elected Governors and mayors and legislatures to do what they were 
elected to do and be free from outdated consent decrees their 
predecessors may have agreed to, and which exist with the approval of 
the Federal courts.
  We have hundreds of outdated Federal court-approved consent decrees 
across America, which are running our education systems, foster care 
systems, Medicaid systems, and they make it impossible for democracy to 
flourish in the U.S., at a time when people are fighting and dying to 
give other people democracy in another part of the world. We have 
strong Democratic and Republican support in the Senate for this. In the 
House, I finished a meeting with the Republican whip, Roy Blunt, who 
with Congressman Cooper from Nashville, and all of the Democratic 
Congressmen from Tennessee, have introduced the same bill in the House.
  This piece of legislation would put term limits on Federal court 
consent decrees and cause them to be more narrowly drawn and do as the 
Supreme Court said they should do--get these issues back into the hands 
of the elected officials as soon as possible.
  This legislation has strong support, and I hope it will be moving 
through the Judiciary Committee in proper fashion. It is the No. 1 
priority of the National Governors Association and National Association 
of Counties, and many others. We cannot expect States to control the 
growth of Medicaid spending if we do not allow them to make their own 
decisions. We need to get flexibility from our laws, and we need to get 
the courts to step aside and let elected officials make policy 
decisions.
  I ask unanimous consent that this article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From the LegalTimes, Apr. 4, 2005]

                        Free the People's Choice

                          (By Lamar Alexander)

       Imagine yourself the governor of a state grappling with a 
     broken public health care system. Your goal is to cover the 
     greatest number of people--particularly children--with the 
     best medicine available. But costs are spiraling out of 
     control, so you and your staff craft a reform package that 
     balances the health care needs of low-income citizens with 
     the fiscal realities of the state budget. The task is tough, 
     but this is why you ran for public office.
       The story should end there, or, at least, you've reached 
     the point when you would present your plan to your fellow 
     elected officials in the state legislature, and they take a 
     vote--representative democracy at work. Only that's not 
     what's happening in states around the country, whether the 
     issue is health care or transportation or education.
       Instead, the hands of governors, mayors, even school boards 
     have been tied by costly and restrictive consent decrees 
     handed down by federal courts, sometimes decades before. 
     These judicial orders result from agreements brokered between 
     public officials and plaintiffs engaged in civil court 
     actions. Once these decrees are set, they are very difficult 
     to change, making reform and common-sense adjustments over 
     time virtually impossible.
       The result is what New York Law School professors Ross 
     Sandler and David Schoenbrod call ``democracy by decree''--
     public institutions being taken out of public control and 
     placed in the hands of an unelected federal judiciary.
       There are times when this is absolutely necessary, when 
     state and local governments defy federal law and 
     congressional intent. Desegregation is the best example. In 
     the civil rights era, the judiciary had no choice but to 
     exercise control over public institutions in order to 
     guarantee African-Americans their constitutional rights.
       While ensuring that states follow the rule of law, consent 
     decrees can also preserve the separation of powers and uphold 
     the ideals of federalism. Unfortunately, in many cases, they 
     have done just the opposite.


                          ROADBLOCKS TO REFORM

       The hypothetical I offer above mirrors what is currently 
     happening in my home state of Tennessee. Three specific 
     consent decrees blocked the implementation of Democratic Gov. 
     Phil Bredesen's initial Medicaid reform package, which would 
     have preserved coverage for all 1.3 million enrollees of 
     TennCare, the state's Medicaid program. His plan was passed 
     overwhelmingly by the state's General Assembly and endorsed 
     by major stakeholders in the program, from patients to 
     providers.

[[Page 5903]]

       But mandates set forth in these consent decrees--which far 
     exceed federal requirements--limited the governor's policy 
     choices and continue to drive up program costs. As a result, 
     Bredesen was recently forced to devise a new reform strategy, 
     which would cut 323,000 adults from the program and reduce 
     the benefits of the remaining 396,000 adults. Citing the 
     consent decrees, the courts are now blocking this proposal as 
     well.
       The consent decrees cover a range of health care issues. 
     One signed by U.S. District Judge John Nixon in 1979, known 
     as the Grier consent decree, prevents the state from placing 
     reasonable limits or controls on prescription drugs, 
     including the use of cheaper generics in lieu of expensive 
     brand-name pharmaceuticals. As a result, Tennessee now spends 
     more on TennCare's pharmacy benefit than it does on higher 
     education.
       The John B. consent decree, signed by Judge Nixon in 1998 
     and revised in 2001 and 2004, imposes a host of special 
     requirements for children. From one line of federal code, the 
     court entered a consent decree that established a requirement 
     that Tennessee offer medical screenings to 80 percent of the 
     state's children--a laudable public policy goal but one that 
     should be set by the elected officials whose job it is to 
     manage the program.
       Finally, the Rosen consent decree, signed by U.S. District 
     Judge William Haynes in 1998, prevents TennCare from limiting 
     enrollment when a person is part of an optional Medicaid 
     population or when a person's eligibility for the program 
     cannot be determined. To make matters worse, on Jan. 29, 
     2005, Judge Haynes took his authority under that consent 
     degree a step further: He declared that he must approve any 
     changes to the TennCare system that would reduce enrollment. 
     With the budget clock ticking, Tennessee's state legislators 
     are now waiting for a U.S. district judge to give them 
     permission to do their job.
       And Tennessee isn't alone. There are consent decrees in all 
     50 states on issues ranging from prisons to child care. In 
     Los Angeles, a consent decree entered in 1996 by U.S. 
     District Judge Terry Hatter Jr. has forced the Metropolitan 
     Transit Authority to spend 47 percent of its budget on city 
     buses, leaving just over half of the budget to pay for the 
     rest of the transportation needs of the nation's second-
     largest city.
       In New York, a 1974 consent decree entered by U.S. District 
     Judge Marvin Frankel has been mandating bilingual education 
     for more than 30 years. The result is that public schools, 
     which should be vibrant, learning, changing institutions, 
     have no choice but to force students into outdated bilingual 
     programs, even over the objections of their parents.


                           A BETTER SOLUTION

       The solution to the problem of democracy by decree is a 
     balanced system that protects the rights of individuals to 
     hold state and local governments accountable in court, while 
     preserving our democratic process through narrowly drawn 
     agreements that respect elected officials' public policy 
     choices. These goals are not incompatible. Last month, I 
     introduced the Federal Consent Decree Fairness Act, 
     bipartisan legislation that does both by establishing new 
     principles and procedures for establishing, managing, and, 
     ultimately, terminating court supervision.
       The bill takes a three-pronged approach: First, it lays out 
     a series of findings to guide the federal courts in approving 
     future consent decrees. These findings give congressional 
     endorsement to the Supreme Court's call for limiting decrees, 
     as it did in Frew v. Hawkins in 2004. The findings also 
     advocate the entry of consent decrees that take into account 
     the interests of state and local governments and give due 
     deference to their policy choices. And they make it clear 
     that consent decrees should contain explicit and realistic 
     strategies for ending court supervision.
       Second, the bill places ``term limits'' on decrees, giving 
     states and localities the opportunity to revisit them after 
     the earlier of four years or the expiration of the term of 
     the highest elected official who consents to the agreement. 
     These time frames give consent decrees an opportunity to 
     succeed, while not tying the hands of newly elected 
     officials. They also prevent outgoing officials from agreeing 
     to consent decrees as a way to lock in their successors to 
     policies those successors would not normally support.
       Finally, this legislation shifts the burden of proof from 
     state and local governments to the plaintiffs in the case for 
     purposes of the motion to vacate or modify the decree. 
     Currently, a consent decree can be vacated or modified only 
     following a showing by the defendant state or local 
     government that circumstances have so significantly changed 
     as to render the decree unworkable. The practical effect is 
     that they must prove a negative--that the decree is no longer 
     necessary. Yet if the purpose of the original agreement was 
     to protect the plaintiff, it's logical that the plaintiff 
     should demonstrate whether continued protection is justified.


                          RESPECTING DEMOCRACY

       The goal of the Federal Consent Decree Fairness Act is to 
     ensure that when a federal right is no longer threatened, a 
     consent decree meant to protect that right can be 
     expeditiously ended. When the purpose of the decree has been 
     met, or circumstances have significantly changed, or later 
     officials propose new and improved solutions to a problem, 
     there needs to be a better way to remove the strictures of a 
     consent decree.
       The Federal Consent Decree Fairness Act would not impact 
     the court's jurisdiction. It wouldn't eliminate consent 
     decrees or even nullify existing ones. And it exempts 
     desegregation cases. The bill merely creates a new judicial 
     procedure that allows state and local governments to request 
     a review of the consent decree under a shifted burden of 
     proof.
       The intent here is not to diminish the role of the federal 
     courts. Consent decrees are important tools of federalism 
     because they ensure that no government is above the law. From 
     a practical perspective, they save enormous court costs and 
     prevent damaging legal battles.
       Rather, the goal is to level the playing field for state 
     and local governments. There is no democracy when federal 
     courts run police departments, school districts, foster care 
     programs, and state insurance programs. Judges are not public 
     policy experts, and they are not accountable to the 
     electorate for the choices they make.
       While the Supreme Court upheld the consent decree in Frew, 
     its opinion captured the problem: ``If not limited to 
     reasonable and necessary implementations of federal law, 
     remedies outlined in consent decrees involving state 
     officeholders may improperly deprive future officials of 
     their designated and executive powers. They may also lead to 
     federal court oversight of state programs for long periods of 
     time even absent an ongoing violation of federal law.''
       The Frew Court rightly focused on the encroachment of 
     federal power over state and local governments. Our nation's 
     founders envisioned a dynamic but separate relationship 
     between the federal government and the states, and among the 
     three branches of government. The 10th Amendment is clear in 
     its delineation of responsibility: ``The powers not delegated 
     to the United States by the Constitution, nor prohibited by 
     it to the States, are reserved to the States respectively, or 
     to the people.''
       And while The Federalist No. 48 sets forth the idea that 
     some connection between the two levels of government is 
     necessary, its writer, James Madison, issues a clear warning: 
     ``It is equally evident that neither of them ought to possess 
     directly or indirectly, an overruling influence over the 
     others in the administration of their respective powers.''
       Consent decrees have, unfortunately, evolved into a 
     mechanism for the federal judiciary to exercise ``an 
     overruling influence'' on many state and local governments. 
     Reform is desperately needed to fix this broken system. 
     Democracy by decree is no democracy at all.

                          ____________________