Government by Consent Decree?

June 9, 2005

Edited transcript prepared from a tape recording.

7:45 a.m.	Registration
8:00	Panelists:	Senator Lamar Alexander
		Representative Roy Blunt
		Michael S. Greve, AEI
		Wade Henderson, Leadership Conference on Civil Rights
		Simon Lazarus, National Senior Citizens Law Center
	Moderator:	R. Shep Melnick, Boston College
10:00	Adjournment

Proceedings:
MR. GREVE:  I'll turn things over immediately to Shep Melnick who will moderate this panel, but before I do so I really do want to extend a warm welcome to all of you.  I especially want to thank Senator Alexander and Congressman Blunt for agreeing to appear here to discuss what we all believe is a very serious and important piece of legislation that's been proposed.  Shep.
 
MR. MELNICK:  It's a pleasure to be here and to see so many people interested in consent decrees.
[Laughter.]
 
MR. MELNICK:  The topic of our discussion this morning will be legislation that's been proposed by Senator Alexander and Representative Blunt to limit both the life and to narrow the scope of consent decrees against state and local government.  This legislation is significant both for the citizens and office holders of many states in the nation, but it's also important and interesting from a broader perspective of democratic self government.  What kind of consent is required to bind future generations and future office holders?
 
We have five panelists who are going to address these issues.  Many of them are very well-known to you.  Senator Lamar Alexander from Tennessee has seen this issue from a variety of points of view, serving not only in the Senate, but as Secretary of Education and Governor of Tennessee.  Representative Blunt is House Majority Whip, and member of the Energy and Commerce Committee and a co-sponsor in the House of the legislation, and I believe that Representative Blunt has to leave at 9:00--is that right?
 
We will interrupt to allow people in the audience to ask a few questions before Representative Blunt has to leave.
 
Michael Greve, whom most of you know, is the John G. Searle Scholar at AEI, Director of the Federalism Project and the Liability Project and, for a person with a Ph.D. in political science, writes with surprising verve, humor, and insight.
 
Wade Henderson is the Executive Director of the Leadership Conference on Civil Rights and is the Joseph L. Rau, Jr. Professor of Public Interest Law at the David A. Clarke School of Law at the University of the District of Columbia.
 
Simon Lazarus is a Senior Counsel with Sidley, Austin, Brown, and Wood, and the Public Policy Counsel at the National Senior Citizens Law Center.  Many, many years ago, when we had a Democratic President whose name was not Clinton, he served as associate director of the White House Domestic Policy Staff.
 
We are going to hear first from Senator Alexander and Representative Blunt to explain their legislation and the rationale for it.  We will then move on to Mr. Henderson, Mr. Greve, and Mr. Lazarus.  We will have about five or 10 minutes each.  Please.
 
SENATOR ALEXANDER:  Thanks.  I first want to thank AEI for doing this, and Michael for his persistent attention to federalism, which is one of the most important principles we have.
 
I think of our politics here in Washington really as usually a conflict of principles with which all of us agree.  If the question is immigration, it's rule of law versus equal opportunity, for example.  Federalism is one of those principles and one of my purposes as United States Senator is to try to push it up as high in the debate as I think it deserves to be.  It doesn't always trump every other principle, but it deserves to be considered.
 
I like the format you've selected here, and I'll try to set a good example and honor it.  It's better than a hearing.  I remember when I went to my first hearing as United States Education Secretary.  I was well-prepared and ready to talk, and I got there and each Senator had 10 minutes, and I didn't get a word in.  I thought it was a very unsuccessful hearing.  But I found out later that from the Senators' point-of-view it was a very successful hearing because they got to talk.  So a hearing in the Senate is more a “talking” than a “hearing.”
 
I'm going to keep my remarks to the point, and hope that I might learn something from the other distinguished panelists here today that will improve this legislation that Representative Blunt and I, as well as Senator Pryor and Representative Cooper, who are the lead Democratic co-sponsors, have offered.
 
People may wonder sometimes, “Where do these legislators get their ideas?”  So let me tell you where this idea came from.
 
It actually came from scholarship, from a book by a couple of professors at New York Law School.1  One of them, I will disclose, was my roommate at New York University Law School years ago.  Early in their careers, they were lawyers for the Natural Resources Defense Council.  So they were public interest lawyers for many years themselves focusing in the environmental area.  So in this book, they're a little bit like reformed smokers lecturing about tobacco use.  They see an imbalance that they'd like to correct, and it's very good scholarship.
 
I mention that because I think it sometimes helps to know where an idea comes from.  They tell the story of thousands, literally thousands in their opinion, of outdated consent decrees that were entered into over the last thirty or forty years by state and local governments and plaintiffs in the federal courts and that persist.  They say there's really no record of them.  No one knows how many there are, so it's very possible you could be elected mayor of New York City or Governor of Tennessee and halfway through your term someone would show up and tell you that they're in charge of what you thought you were elected to do, and you're not.  And that happens around the country.
 
Sandler and Schoenbrod tell a variety of stories in their book, but one of them is about a 1973 federal consent decree order in New York City.  They say that there are hundreds of these in New York City.  But one between the school board and a plaintiff's lawyer that was agreed to in 1973 governs the way the English language is taught there.  It requires that it be done in a certain bilingual way and that whenever there are more than ten children in a particular language, you have to get a teacher for that language.
 
That's still the rule for teaching those children, even though some parents would like to change that.  But the people they elected to change that are unable to change that because they can't undo the federal court consent decree that was entered into some time ago.
 
This happens in Los Angeles in terms of transportation cases, where there's a federal court agreement that at the time may have been a very good idea, between the plaintiff's lawyer and the elected official at the time, but it puts almost all of the transportation money--I believe it's into buses.
 
Now, a newly elected official would like to change that, but it's not possible to change that easily.  Former EPA Administrator Mike Leavitt, who's in this President's Cabinet, agreed to a federal court consent decree in 1994 in Utah on foster care.  He was warned by all his advisors never to do that, because it will never end.  He thought he was smarter than they were, so he wrote into the consent decree that everyone agreed it had to end in 1998.  It still is in existence today, even though there was the agreement to end it.
 
This scholarship has brought endorsement from a great many people ranging from Bill Bradley to Chris DeMuth here and others.  That's where this legislation comes from.
 
The second place it comes from is from my experience as governor.  When I left the governor's office in Tennessee, we were spending about fourteen cents of every state tax dollar on health care and fifty-one cents on education.  Today, it's forty cents on education and twenty-six cents on health care.
 
And so the Democratic Governor in Tennessee ran on a platform of saying, “I want to get health care spending under control so that we can have a pre-school education program and do some other things in education.  Rather than lead the country in number of prescription drug benefits written, we'd like to reduce that and use some of those dollars to do a better job in pre-school education.”  The problem is, not only does he have to persuade the federal government about that, he has to persuade not one, but two federal judges who find themselves involved in Tenncare (or Medicaid) program--who are basically running the program, approving all of the changes in the program based on three consent decrees by predecessors of this governor, which go back thirty years.
 
Now, we may argue about whether it would be better to spend money on prescription drugs or pre-school education, but the point is we elected a governor to do that, and if we don't like the governor and the legislators and their policy decisions, we should throw them out.
 
So this bill has broad bipartisan support.  Senator Mark Pryor is the lead Democratic sponsor in the Senate.  He was a former Attorney General of Arkansas.  He and Ben Nelson, former Governor of Nebraska, had similar experiences in their prior public lives.
 
The bill is limited.  It seeks to do three things really.
 
One, it basically would put term limits on federal court consent decrees.  In other words, if I'm elected governor, I have a right to go into the federal court and ask that it be vacated or modified.  Today, it's a more complicated procedure to do that.
 
Second, when I do that, then the plaintiff, the person who feels it ought to continue, has the burden of proving that it should.
 
And third, the bill picks up some language from a recent Supreme Court decision [Frew v. Hawkins, 540 US 431], which had some dicta that suggested that these sorts of consent decrees were getting out of hand, ought to be more limited, and it ought to be the responsibility of the federal judge to get the case back into the hands of the elected officials as soon as possible.
 
The bill is narrowly drawn.  It is based on this scholarship, as I say.  It only affects state and local governments.  We specifically excluded school desegregation cases.  We didn't want that clouding our deliberation of this because that's an exceptional case in our nation's history.  These federal court consent decrees are still entirely in the hands of the federal court.  Nothing in this bill takes it out of the federal court.
 
In the opinion of these two professors who have spent a lot of time studying this, the consent decree will still be a very useful tool for litigants and state and local governments who wish to use it rather than to argue in court, and the bill is formulated in a bipartisan way.  So it's introduced.  We'll be having a hearing in the Senate soon.  I'll let Representative Blunt talk about the House.  We're here to listen and learn and if there are ways that we need to improve the legislation, I would certainly welcome the suggestions.  Thank you.
 
MR. MELNICK: Thank you, Senator Alexander.  Representative Blunt.
 
CONGRESSMAN BLUNT:  Thank you, Shep.  It's great to be here this morning.  I apologize for having to leave in a little while, but that way I leave my good friend, Senator Alexander, to answer all the questions, which may be good strategy.  Every Thursday morning, we have the Deputy Whip Meeting which is when we talk about our work for that week and the plans for the future, and I know you wouldn't want the majority in the House not to have a plan.  It's tough enough sometimes when we have a plan.  Just imagine how it might look if we had no plan at all.  So I'll be leaving to go to that meeting before too long.
 
I'm pleased to be working on this with Senator Alexander.  He's a person whose public service I've admired during his entire career.  It's great to get to work with him on this.  As you can tell from his remarks, he feels strongly about this issue, and I think has an appropriate appreciation, as I hope I do, for the positive impact that this issue can have as we really change the view of these decrees.  I also like, as it turns out, sponsoring what I consider major and important legislation with folks from Tennessee.  Harold Ford and I have the Charitable Giving Act that passed the House by a huge margin in the last Congress and, for reasons that still baffle me, didn't quite ever get out of a conference committee, where there's also a huge margin on the Senate side.  But we're coming back with that bill again this year.  And Harold and all of the other House members from Tennessee have joined Representative Cooper, the principal Democratic sponsor, as co-sponsors of this legislation as well.  I think the Senator has explained the legislation better than I could have.
 
Let me make a few points here.  This may be the principal point I would want to make:  I really think this is more about inactive public officials than about overly active judges.  Consent decrees are too often used by elected officials as the reason that they can't do anything about an area that should be their responsibility.  The principal goal of this bill is to get the responsibility for public policy and public institutions back in the hands of elected officials.
 
When you've got consent decrees that go on for three decades, four decades, you've had a series of public officials during that period of time, every one of whom has said, ”I'd really like to do something about the transportation system here in Los Angeles County, but I can't because of that consent decree.”  Or, “I'd like to do something about the jail situation, the prison situation here in the city, but I really can't because we're so hampered by the consent decree on something else.”
 
Consent decrees, in my view, have become a major place for public officials to hide behind, both in the area that the consent decree specifically affects and as an excuse not to do things in other areas where public officials should have responsibility.
 
So again, let me repeat.  I think this is more about inactive public officials, elected officials, than it is about overly active judges.  I know there's a lot of discussion right now about judicial activism.  And it would be easy for this to be confused with that debate, which I really think is a very different debate.
 
As Senator Alexander has pointed out, this creates not only an opportunity, but if we pass this bill, really an obligation on the part of newly elected officials to look at every consent decree out there that their predecessor was part of and to either defend why they shouldn't be doing something or to go to the courts and say, ”Here are the reasons we think that this consent decree no longer applies.”  The burden then is on the plaintiff, the manager of the consent decree, to explain to the judge why it's important that that consent decree continue.  The book that Senator Alexander held up and lots of other scholarly work is filled with example after example after example of places where consent decrees have become so much more, not only than they were intended to be, but also have become major obstacles to public officials doing other things.
 
Let me give you another couple of examples here.  The Senator mentioned the New York City case, which is a good case.  There are a couple of major cases in Missouri, where I'm from.  The federal courts in 1983 began to oversee the foster care system in Jackson County, which is Kansas City and Jackson County.  As a result, in order to comply with the now twenty year-old consent decree, a disproportionate share of all the foster funding for the state goes to Jackson County.
 
This extends to health care and mental health as well.  Missouri's Department of Mental Health has operated now under five consent decrees, two of which date to the 1970s.  The bilingual case in New York City was mentioned.  In Los Angeles County, there's a 1996 consent decree that required mass transit to reduce overcrowding, expand bus service, and set specific fares.  It even sets the fares for this greatly expanded service.  In six years, the mass transit authority has spent $621 million to comply.
 
Now, mass transit alone-- this is bus service--takes up 47 percent of the Los Angeles County budget. 

This leaves 53 percent for street improvements, for MetroRail, for Metro Link, debt reduction, and for everything else the county does, while 47 percent goes to this consent decree.
 In 1991, the Connecticut Department of Children and Families had a consent decree that now costs the state over a million dollars every year.  In 2003, there was a significant state budget shortfall.  Eighty-two Department of Children and Family employees were let go as an across-the-board proportion of what happened in every other department in Connecticut.  Because of the consent decree, those 82 employees had to all be put back to work, and employees in other departments had to be cut further to meet the balanced budget requirement in that state.  And so really our goal here is to return public policy responsibility to elected officials as soon as it is defensible.  That's really how our system is supposed to work.  You know, people at the ballot box don't have any real control over what a federal judge does.  They have a lot of control or they should have a lot of control in our system over what public officials do, but when those public officials use this consent decree as their defense in not just the specific topic, but every other topic, it is an unreasonable intrusion into the process, and our legislation, frankly, would change the burden of who has to prove that the consent decreee needs to be continued.  The idea that the new public official should have the opportunity to take responsibility for this area is the principle behind this bill.  I'm glad that all of you have taken such interest today.  I'm also very pleased to be here with this panel, not only my good friend, Senator Alexander, but also the other individuals on the panel whose public service is significant, and I'll look forward to their comments.
 
MR. MELNICK:  Thank you very much.  Our next speaker will be Sy Lazarus.
 
MR. LAZARUS:  Thanks very much.  Thanks to Michael for arranging this, and thanks especially to Senator Alexander and Congressman Blunt for taking the extremely unusual step of coming down off the Hill during working hours and participating in a substantive discussion of an issue that they're working on.  I'm not familiar with a direct precedent for that.
 
So I think that's very impressive and very gratifying, and I also have to say even though we may have some disagreements, as I often say to Michael, people who care about issues as arcane as consent decrees and federalism need to support each other because--
[Laughter.]
 
MR. LAZARUS:  I think that we all recognize that the devil is in the details of how government works.  I think this shows that you all care, as we on our side care, about how those details are structured and that that's really quite critical.  If I can speak on behalf of a very large community of people who are very interested in-- concerned about--this legislation: we welcome the opportunity to dialogue with you, because I think a number of the things that you all said resonated.  First of all, the point that we quarrel about principles we all agree on is very important and very important to keep in mind, and I have no doubt that that is the case here.
 
Secondly, I wanted to underscore a point that Congressman Blunt made and that is that the problems--insofar as there are problems here--are more often, or at least often, inactive public officials and not courts.  I think that's something that really needs to be stressed, and I think that that is a point that comes out of the Schoenbrod/Sandler book that Senator Alexander is keeping by his side there.  One of their most prominent examples was an example of a successful consent decree. In that case, the relevant commissioner in the New York City government seized control of the situation, insisted on retaining his prerogatives in shaping the decree, and the authors say that that worked very well.  What I would ask you all to consider is how to encourage good administration of the statutory mandates of these decrees by all concerned, including especially the local public officials.
 
I am Public Policy Counsel for the National Senior Citizens Law Center.  We are very much involved in litigation and public policy advocacy and scholarship about these kinds of issues.  We are involved in Medicaid cases.  I myself don't litigate them, but we're very much involved in them.  Regrettably, we're very concerned about this legislation and oppose it.
 
Our basic feeling is that this legislation is not necessary and not likely to be an effective answer to the problems that you're concerned about and people in your states are concerned about.  And unintentionally, no doubt, it will do grave damage to a huge variety of landmark federal statutes that have been passed over the last decades that are extremely important to the health and security of older Americans and many other Americans.  And I hope that you will consider seriously some of the effects of the legislation that are certainly not what your objectives are, but which we see.
 
I'd also like to start to explain this with an example, because there are a lot of examples of successful consent decrees.
 
Consent decrees are such a central part of the modus operandi of the way these major federal statutes are administered that one finds them everywhere.  Just by very casual examination of news reports over the last week, three developments came to my attention, and I'm going to share one of them with you because I think it's quite instructive.
 
On last Friday, June 3rd, it was reported that a court terminated a consent decree by mutual request of the Justice Department, the Environmental Protection Agency, and Wayne County, which, of course, is Detroit.
 
This was a case involving a suit brought more than 11 years ago.  The consent decree required the county to upgrade its sewer systems because the sewer systems were so antiquated that when there was a lot of precipitation, they caused untreated sewage to be dumped into drains and eventually into the Detroit River.  That was the only way of preventing it from backing up into basements.
 
The centerpiece of the improvements required by the decree was a massive sewer tunnel, costing almost $300 million.  The county says it's going to spend another $100 million, and it's currently seeking approval for a major bond issue to finance that.
 
The parties told the court that the objectives of the decree have been met.  Now, this case, I think, shows four important things.
 
First of all, it shows the scope of the laws that will be damaged and how badly they will be damaged if this legislation as written goes into effect.  This legislation will cover every kind of federal statute that we can identify.  It covers cases not just brought by overly enthusiastic public interest lawyers, but by the United States Government.  And it involves some of the most important commitments that the Congress makes or has made.  This consent decree would not have been possible under this legislation.
 
The case also shows that some of these consent decrees need to last eleven years.  You can't upgrade a sewage system in one year or two years or three years or at most four years, which is the length of time that decrees will last before they're sunsetted under this legislation.
 
It also shows that the consent decree option as a way of enforcing the law is a sensible option.  You couldn't have figured out how to do the upgrading if a federal judge just ordered a plan.  You'd have to do it by having all the people involved get together and work out a sensible plan, and that's what consent decrees make possible.
 
So taking that option away from courts and litigants just doesn't seem like a very sensible thing to do and although I know you don't mean to do this, we think that your legislation really is going to take that option off the table.
 
Now, it also shows, of course, that the parties to consent decrees know how to end them when it's time to end them.  We don't have to have a one-size-fits-all, very draconian deadline imposed on every situation in the country by Congress, with all respect.  We think that it is possible for the parties to end them, and they have done so in this case, although it is certainly true that there are a lot of these decrees sitting around, and one has to wonder why that is the case.
 
I have to refer to something that Congressman Blunt said about inactive public officials.  If these decrees are sitting around, you have to ask yourself why that is the case.  (And we will get to the issue of how easy or hard it is to change or end them when it's necessary.)  They are, after all, consent decrees.  They are not imposed by the courts.  That's something we have to remember.  These are agreements that the local government has agreed to.  There's no limit to the kinds of provisions that can be put into it.  These agreements can have time limits of their own.  They can have pauses.  They can have any kind of procedural proposal for reexamination that one could want.
 
And it's completely flexible.  It gives maximum total discretion to everyone involved, and you have to ask yourself, “Could we have a better way of giving all people involved, including local officials, the freedom to determine what they should do?”
 I'm going to be very brief with the rest of what I want to say here.  I left on the table a chart out of the Schoenbrod-Sandler book that shows all of the federal statutes, that “regulate states.”
 
This very conveniently gives you an idea of just what we're talking about here.  We are talking about getting involved in the administration of virtually every significant law that addresses domestic national problems that we can think of--the Clean Air Act, the Clean Water Act, the Family Medical Leave Act.  You name it, they're all here.  So we need to be extremely careful about imposing one-size-fits-all solutions on all of this because it's going to have a tremendous impact.
 
The second thing that I passed out, and I wanted to draw attention to, was an excerpt from this decision by the Supreme Court only a year ago that you all referred to, Frew v. Hawkins.  I think the passage that you quoted, Senator Alexander, is really not dicta.  It's really the instruction that a unanimous Supreme Court, which includes Justice Thomas as well as Justice Stevens and everyone in between, gives to local district courts when they have to consider a request to change a consent decree.  I don't want to read all of this to you.  It's been passed out, but I will note a couple of things.
 
The Court says that when a district court is considering a request to change a decree, principles of federalism “require that state officials with front-line responsibility be given latitude and substantial discretion.”  The Supreme Court also says that the federal court must exercise its equitable powers to “ensure that when the decree’s objects have been attained, responsibility for discharging the state's obligations is returned promptly to the state and its officials,” just as Congressman Blunt stated was an appropriate objective of public policy.
 
Officials of the state must be presumed to have a high degree of competence in deciding how best to discharge their responsibilities, and then the Court does another thing, which I think is very important.  It says in the ordinary course, a state depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources.  This is clearly, explicitly saying, I think, that if provisions in a decree like some of the ones that you mentioned are costing more compared to other items in a state or a local budget than they were originally thought to provide, that's something that needs to be taken into account.  That's a legitimate thing for a new official to address and to come to the court about.
 
So what I'm really asking you is, ”What's wrong with this test?  Why isn't this test the right test?”  It seems to specify all the considerations that you've noted, and I would agree are important.  It leaves it in the hands of the courts to apply.  One could presume that the lower federal courts are so narrow-minded that they won't apply this test in good faith, but I don't think there's any indication that that's true, and I would think it would be a little bit premature to assume that it's true.  As an example, one of the cases, Senator Alexander, that you cite in Tennessee as being particularly problematic for the state government there: in that case, the Sixth Circuit Court of Appeals has reversed, as I think you probably know, the district court, and quite summarily and promptly.
 
So I leave it with you to ponder whether this isn't the right test and leaving it for the time being anyway in the hands of the courts isn't an appropriate solution.  Thanks.
 
MR. MELNICK:  Thank you.  Our next speaker will be Michael Greve.
 
MR. GREVE:  I think Representative Blunt has the analysis exactly right.  This is not about tyrannical, runaway judges.
 
I believe those judges exist.  Contrary to what Sy just said, I think that's the situation in Tennessee.  Judge Haynes, who's been running TennCare for the past years and thinks he owns it, has not been reversed once by the Sixth Circuit.  He's been reversed repeatedly, and he doesn't care what the Sixth Circuit says.  The same is true of Judge Nixon, who runs the other half of TennCare.
 
But I think those judges are now really the exception, and besides this legislation probably doesn't address that particular problem because judges who don't care what their immediate appellate courts have to say probably also don't care what the United States Congress has to say.
 
This is really about evasion up-and-down the line and about shirking responsibility.  It's about restoring some democratic accountability to a process that is completely out-of-control and on autopilot.
 
What's the basis of all these suits?  Well, as Sy mentioned, there are tons of statutes and all of them, by and large, work on the same principle.  The federal government says, “Here are certain programmatic goals we want to achieve.  We want to achieve them through local and state governments.  We give you some money to do so.”  And then the programs say that the funding conditions are privately enforceable.  They say that to varying extent.  That is to say, the bargain between the federal government and the state or local government is enforceable by private litigants.
 
Every federal country in the world that I'm aware of has these transfer programs from federal to state and local governments.  Not one country other than the United States and, with some exceptions, Canada makes these contracts between the feds and the states privately enforceable.  Why not?  Is it that the Germans or maybe the Austrians don't believe in the welfare state and don't want to help poor people?  No, not bloody likely.
 
There are two reasons why they don't do it.  One reason is that, as Justice Breyer has explained, they think that the autonomous administration of these programs by the states is an important aspect of federalism.  You cannot have autonomous state administration if all of it is superintended by some federal judge or by some private litigant who looks over your shoulder.
 
The second reason is that in those countries, you can come out--in fact, you have to come out--and say, “I am for a big, robust transfer economy.”  You cannot say that in America and hope to be elected, at least in most states you can't.  Therefore, the entire welfare state has to be run by subterfuge, and that is what the private-enforcement provisions do.
 
When something goes wrong in a case brought by a private party against a state and local government, everybody is off the hook.  Congress can say, “Whoa.  We didn't mean that.  The costs mount, the libraries close.  We didn't mean that.  It's these private litigants and some crazy judge who did that.”  The state can say, ”Jeez, when we took the federal dollars, we had absolutely no idea that we'd be exposed to this kind of nonsense and that these would be the consequences.”  The federal judge can say, “Hey, guys, what do you want from me?  I'm just enforcing the law.  It's what's on the books.  Don't blame me.  Go to Congress to complain.”  And the plaintiffs say what Sy just said: “These are important congressional commitments.  We won these entitlements fair and square.  We now have the right to enforce them.  It would be unconscionable not to.”
 
Nobody is responsible when the costs mount and things get out of control.  The programs are on autopilot, and everybody up-and-down the line inside these policy silos wants to expand the programs.  The congressional committees want to expand them.  The federal bureaucrats want to expand them.  The state bureaucrats want to expand them.  And the private litigants want to expand the programs, and so everything is in the direction of expansion.  There is no check on that system at all.
 
Just to show what a moderate fellow I am: if I had my druthers, I would repeal any and all private-enforcement provisions in the federal code--any and all of them--tomorrow.  That will upset everybody inside Sy's coalition, but I'll give you one example of why I think this is not extreme.  What is the one unquestionable public policy success we've had over the past twenty years domestically?  Answer:  the 1996 welfare reform, which was very, very good for poor people.  What was the core provision of the 1996 reforms?  One sentence answer:  “Nothing in this statute shall be read to confer any entitlement on any individual.”  Congress had to do it that way because otherwise, the poverty groups and federal judges and local-state bureaucrats would have taken the reform apart in two years, no more.   But they couldn't because the reform programs are not privately enforceable, and so you had states actually in a position to run these programs.
 
Now, short of adopting the moderate proposal of repealing all private-enforcement provisions, why concentrate on consent decrees?  Because I think they pose special problems.
 
First, consent decrees very, very frequently expand the programs beyond the statute.  They embody what no plaintiff could demand, what no court could order on its own as a form of injunctive relief, what no state could agree to, and they constrain executive discretion and legislative budget authority for years and years and years and years without any finding of any violation of any federal right.
 
This bill would allow officials to request a termination.  There's no real change, as Sy said, because they can do that now.  The true change is, I think, the shift in the burden of proof to which Senator Alexander alluded.  The plaintiffs must show a violation of some federal rights if there's a request for termination.  It gives some additional incentives to state officials to try this with a somewhat greater chance of success, and it diminishes the incentives to obtain new consent decrees.
 
I think that is the right approach because consent decrees are not just contracts among parties.  They have to be based on some law that entitled the plaintiffs to relief in the first place.  So I think there are only three possibilities when these requests for termination trickle in.  Either there's a right that was violated back at the outset, and it's still being violated, in which case the relief will continue.  Or else the right was violated in the past, but now the violation is cured.  In that case, it's very hard to see why the plaintiffs should be entitled to any further relief.  Or, most likely, the right was never violated in the first place, in which case the plaintiffs basically got two, three, four years of free relief to which they weren't entitled, in which case it's hard for me to see why it is a bad bargain that it's now being terminated.
 
I think the problem with this bill, if any, is that there may not be enough incentives for local or state politicians to ask for termination.  There's bureaucratic inertia.  There are funding streams that the officials want to keep coming.  There are political costs that attend to saying that they want to terminate a judicial order.  It really takes extreme circumstances to make politicians stand up and say, “I want to terminate this.  I want to take responsibility.”  But it's a very, very badly needed step in the right direction.
 
MR. MELNICK:  Thank you.  Our final speaker and clean-up hitter will be Wade Henderson.
 
MR. HENDERSON:  Thanks, Shep.  Good morning ladies and gentlemen.  I want to pick up on a point that Sy Lazarus made at the outset of his presentation about the significance of having both Senator Alexander and Congressman Blunt here attending such a forum.  Before the presentations began, I had the pleasure of talking to both gentlemen.  I think, for example, that Senator Alexander clerked for the great John Minor Wisdom, one of the most distinguished jurists of the 20th century and someone deeply committed to many of the principles of law that we share.  And, of course, Congressman Blunt and I talked about the possibility of working together on issues around which we agree. Genuine commitment, I think, attends both gentlemen in terms of their overall principles to fairness and their commitment opportunity I think is unquestioned.
 
Having said that--and, Michael, I'm honored to have been invited to be here at AEI--I have to say that the intensity of some of the points that you made belie the moderation that you profess behind your view.
[Laughter.]
 
MR. HENDERSON:  The perspective that the Leadership Conference brings to the table has been set forth in the handout, which we included in the material today--a letter signed by eighty-five various organizations--national civil rights groups, environmental organizations--an assortment of others deeply committed to principles of fairness and opportunity.  We cite many reasons why the coalition that I represent--185 national organizations committed to advancing equal opportunity for all--would really oppose the Consent Decree Fairness Act.
 
I have to point out, by the way, that the most pertinent point is one on which all of the speakers agree, and that is existing federal law already permits modification and dissolution of consent decrees; that courts currently apply a generous and flexible standard for allowing state and local governments to modify or terminate existing consent decrees.  If you look at the most recent Supreme Court decision to speak to the issue, which has already been cited, Frew v. Hawkins, they include one line that I have to read, because I think it's so directly on-point in terms of its view:
 
“If the State establishes reason to modify the decree, the Court should make the necessary changes.  Where it has not done so, however, the decree should be enforced according to its terms.”  That is a unanimous view held by our Supreme Court in all of its majesty.
 
Now, I want to step back for just a minute to put this discussion in a bit of an historic context because I think when we talk about the principles of federalism, we have to take into account what we're talking about in terms of the rights and responsibilities of citizenship. This is particularly important in a nation such as ours, which has extraordinary diversity, which we have actually turned into a net strength, unlike most other countries in the world today.  If you look at what's happening, whether it's in Europe, whether it's in the Middle East, whether it's in Africa, diversity and managing diversity has posed an extraordinary challenge.  We're one of the few nations that has taken diversity and that liability and flipped it on its head and turned it into an incredible strength.  It's the very strength and essence of what this country represents.
 In order to maintain that posture in the world, it requires us to function under certain established principles of law, and that is indeed what we're talking about in the context of this discussion on federalism.
 
I want to put this in a brief bit of historic context and then fast forward to where we are so we can talk about the issues at hand.
 
Look, obviously we all know of the important history of our own country in overcoming some of its most profound disabilities, whether it's the issue of race and racial discrimination, whether it's the issue of integrating women, language minorities and others into the body politic.  We know that the Congress legislated three important constitutional amendments: the Fourteenth, Fifteenth, and Nineteenth.  The struggle, however, to achieve meaningful opportunity has been difficult to accomplish.  The 1954 decision by the Supreme Court in Brown v. Board of Education, which culminated from five separate decisions, took an extraordinary length of time to put into place.  And even after Brown, it became clear that we would need other forms of federal intervention to level the playing field in meaningful ways.  Hence, the Civil Rights of 1964, the Voting Rights of 1965, the Fair Housing Act of 1968.  And I could go on to cite other legislative efforts that have been intended to accomplish that result.
 
Consent decrees have proven from the standpoint of advancing the right and opportunity agenda, and that's really what we're talking about here.  We're not talking about guaranteeing a particular result in terms of any of the things that we're talking about.  We're talking about maintaining a level of opportunity.  It has required the intervention of both the federal government and state actors to carry out those responsibilities.
 
Now, the federal government does have a very meaningful role to play, and it has undertaken that role in a variety of different ways, including litigation.
 
However, the federal government's enforcement responsibilities have not been fully met nor have they achieved the equal opportunity that the statutes that Congress and the American people have called for.  Therefore, private attorneys general, organizations like those that we represent--whether it's the Lawyers Committee for Civil Rights Under Law, or the Mexican-American Legal Defense and Education Fund, or in the environmental context, the Sierra Club Legal Defense Fund--these organizations play an important role in helping to ensure that the intent of these statutes to be enforce and to create a level playing field indeed are carried out.
 
The people that we represent often don't have access as a general matter to the courts; don't have access to the corridors of power; and don't have the resources needed to make that work.  Therefore, we as a community rely on consent decrees to advance a common agenda.
 
Now, I want to give you one example of why a consent decree in the context of the limitations imposed on this bill present a real challenge.  I want to pick up on something Senator Alexander said: this bill exempts education cases because, as he pointed out, rightly, this is a unique area of our history, so deeply tied to this concept of equal opportunity that the authors of the bill recognized that should be set aside and be enforced under existing principles of law.
 
And yet the same argument can be made, I think, with respect to many of the other areas of enforcement of civil rights and meaningful opportunity because of the same analysis that you applied in the education context, because opportunity has not been uniformly applied.  It has been elusive and difficult to accomplish.
 
Now, here's an example.  In 1971, the Mississippi Department of Public Safety, better known as the Mississippi Highway Patrol, was an all-white institution, not surprisingly.  Of its 743 employees, only seventeen were African-American, and they all served as cooks and janitors.  The Department had never employed an African-American as a sworn officer.  Following litigation brought by the Lawyers Committee, consent decrees were entered into by the parties.  These decrees included provisions for recruiting and training African-Americans to serve as sworn officers and not just cooks.  And the importance of this is not merely to give a black employee of the department a job above that of a cook or janitor.  It really is about the national interest that we serve in common of having an integrated workforce that reflects the values of the American people.  The contradiction between having us embrace democracy abroad and not addressing levels of discrimination at home--that contradiction continues to bedevil American democracy.  And it's something that we need to reconcile.  And that's what consent decrees are intended to do.
 
Now, over the ensuing decades, the decrees were modified to reflect economic and other changes in the state, but the underlying agreement for the highway patrol to desegregate its workforce remained and the consent decree worked.  On January 11th of this year, the court entered an order based on an agreement of the parties to formally vacate the consent decree.  This consent decree lasted, therefore, from 1971 until 2005, and it was modified throughout the existence to reflect changes in circumstances.  But no party was allowed to walk away from their agreement just because it took more than two or three or four years to correct the problem, or because new local or state officials were elected.
 
Today, the Mississippi Highway Patrol workforce is approximately 25 percent African-American, and the immediate past commander of the Highway Patrol himself was an African-American.
 
The point that I'm making here is that change can be glacially slow for those of us who are on the other side of change, who are feeling the difficulty and constraint of facing discrimination of economic disparity or living in a community where the water and sewage are dreadful and where state officials, for whatever reason, examining those motivations that really determine how politicians respond and that is who votes, who brings money to the table, who represents the broad array of interests that you as politicians have to sort through,[WW1] those are the people who are most faced with some of the great difficulties of our time.  And so even though I celebrate the extraordinary change that we've made in our country over the past 50 years, I'm old enough to have remembered growing up here in the nation's capital in a segregated world that for many, many years continued long after civil rights statutes themselves were enacted.  And the constraints of that circumstance continued to bedevil lots of the people who live here who came up behind me.
 
What I'm telling you is that moving on a consent decree process when, in fact, existing law already establishes a procedure which has now just been unanimously endorsed by the Supreme Court--it's the equivalent of using an elevator to crush a nut.  You don't have a problem that needs a solution of the magnitude proposed.
 
And I have to think that there are ways of addressing these issues that go far beyond the need to enact legislation when the courts themselves have been so clear about how these questions can be resolved.  Thanks.
 
MR. MELNICK:  Thank you.  Before I open the floor to questions, let me ask Representative Blunt if you have any comments before you have to leave?
 
CONGRESSMAN BLUNT:  Well, I do, and I'll stay for a couple minutes.  I'm so interested in the debate, and it's always nice to have a discussion with the most worthy of adversaries, even if misguided, as we would think you are.
 
Wade, I appreciated particularly your comment about how our country has turned diversity into a net strength, so uniquely a strength of ours that I think we often overlook it.  Arguably, in fact, our major struggle in the world today is with those who can't understand how we can be as strong as we are with the diversity we have; those that advocate a monolithic tyranny of thought and action and dress and activity that is so out of the realm of the strength of America, and while it relates to our discussion, it relates in a bigger way to what our country is all about.  I don't know if I've ever heard it said exactly that way or any better.  And I think it's such an important sense of who we are.
 
In terms of the House bill, particularly thinking of my other co-sponsors, we took civil rights cases off the table totally.
 
The Senate bill takes education cases.  I think this is an issue we want to work through and decide where exactly that line should be.  I'm not sure it should be quite as far as we've gone or where the Senate bill stands.  But we took all those cases off the table.
 
In response to a couple of points that Sy made, and made well: just because it takes eleven years or so to build a sewer system, for example, doesn't mean it should take 11 years for a court to have to see that that sewer is being built.  All our legislation would do is let the next elected public official come back to the court and express a desire to the court that they be allowed to carry out the goal of this decree without the court being there all the time.  Certainly, there is a procedure to terminate consent decrees, but we don't even know how many times that procedure has not been used.[WW2]
 
One of the things that Senator Alexander and I have discussed as we move forward with this bill is some future sense of how many decrees there are even out there.  There's no record, there's no clearinghouse, no way to look and see how many of these decrees are out there and frankly how few of them we believe public officials ever express a desire to have changed.
 
This at least creates a new obligation on the part of a public official not necessarily to go to the court and say, “We'd like this consent decree changed,” but to explain why, in fact, they still think the court is a better place to have this issue concluded than it is to have the elected public official take responsibility for what clearly should be their responsibility.
 
There's nothing in this legislation that automatically ends consent decrees.  There's nothing in this legislation that requires a public official to go to the court and ask them to end a consent decree, but there is a new obligation.  Without any question, there's a new obligation on the public official to defend why they don't want to reassume this responsibility, and the burden clearly shifts to the plaintiff at that point; once that public official triggers that new obligation, the burden clearly shifts to the plaintiff to explain to the judge why the court and the people appointed by the court to carry this out should continue to be the people that do it rather than the newly elected public who didn't enter into this decree but who now says, “Let the locally elected officials go back and carry out what the goal of this consent decree was.”
 
MR. MELNICK:  Michael has a quick point and then Wade.
 
MR. GREVE:  Just one very quick point, prompted by the repeated reference to Frew v. Hawkins and those three pages of Justice Kennedy's, exhorting trial judges to pay attention to the needs of state and local governments and their political authority.
 
Two remarks about that:  One, there is an actual case and a holding on congressional attempts to deal with consent decrees.  That's the Miller case dealing with the Prison Litigation Reform Act, which is the same idea as this statute, but a much more draconian statute.2  And that holding says plainly that there is no problem with Congress passing something like this, no problem whatsoever.  Thank you very much.
 
My second point is this:  there are many, many, many, many more judicial Supreme Court exhortations to trial judges to limit consent decrees, to be careful in using their authority.  In the school desegregation area alone, I'm aware of three or four cases where the Supreme Court has said that once the violation stops, the decrees have to stop.  You district judges cannot supervise these things forever.
 
Has that made any difference on school desegregation litigation?  No.  These decrees drone on and on and on and on.  If you think that federal appellate court supervision or the judicious exercise of judicial equitable powers is a solution to this problem, you're just fooling yourself.
 
MR. MELNICK:  Sy.
 
MR. LAZARUS:  There are lots of things I'd like to respond to.  Michael, you know, you were once a public interest lawyer yourself for a long time.  And you won some very significant cases, which you probably think have been very good for the nation and wouldn't have happened without the unique American institution of the private attorney general.  But passing that, Congressman Blunt, I just want to point out some things about what's actually in this bill.
 I have no doubt that both of you think that this bill is merely a shifting of the burden and an opportunity to take another look at a consent decree.  In practice, we don't think that that's true.
 
Let me point out some of the things that are in it.  First of all, 90 days after a request to modify or terminate a decree has been filed--90 days--if there's been no decision, the decree is no longer valid.  The notion of trying to try one of these Clean Water Act cases in ninety days, I submit, is not even remotely possible.  So why someone would put a limit like that on it--I don't think you did, but whoever drafted it did.  They knew what they were doing.
 
SENATOR ALEXANDER:  I did, and I'll tell you why. I thought it should be shorter.
 
MR. LAZARUS:  Okay.  You know, I'm not really a litigator, but I believe that many of these important cases couldn't possibly be litigated appropriately in that short time-period or anything like it.
 
Secondly, the bill requires that the decree ends if it's not necessary to enforce a federal right.  As Michael knows, “federal right” has become a very esoteric term-of-art, and we don't know exactly how this would be interpreted by the courts.  But the fact is, under very important recent Supreme Court decisions, that there's no federal right to enforce the Clean Air Act.  There's a distinction between having a requirement of federal law and someone having a "right" to enforce it.
 
So it is entirely possible that you could not renew a consent decree affecting many of the most important statutes under the language of the bill as it might well be interpreted.  So I would leave that out. Because that acts as the death sentence.
 
I also point out to you that although the bill provides for consent decrees to last up to four years, in practice, because of the timing of elections, it's not very often going to be four years.  It's likely to be much less than four years.
 
So if you're the Department of Justice or you're a private lawyer, I think that you're going to say that consent decrees are not an option.  What's the point of bringing one of these incredibly complicated cases--and they are incredibly complicated--only to have a piece of paper that's not going to be worth anything in a year and a half?  I think you're going to force people to litigate these cases to the end, which is a remarkable waste of resources, with all due respect.
 
There are some technical things that we could raise, but I'm not really going to do it now.  Thanks.
 
SENATOR ALEXANDER:  Thanks.  First, I appreciate the suggestions and the way they were presented, and I appreciate your being here.
 
Let me try to respond specifically.  I know there may be questions out there.
 
One, why ninety days?  Let me step back.  The suggestion is made that this somehow ends federal court consent decrees.  This law would not end one single federal court consent decree.  They all still stay in the court.  They all still stay before the same judge.  All that it does is give a newly elected official an opportunity to go in and say, “Judge, I'm Governor Bredesen.  I was just elected to solve the TennCare problem in Tennessee, and I have a plan.  And I have a budget.  And I want to allocate this number of millions of dollars to pre-school education.  We find abuse over here in the TennCare area.  There are a number of optional programs which I'd like to stop so we can spend the money to create better universities, and so I ask that this consent decree be modified or vacated.”
 
Now, all the newly elected official can do is ask that that happens.  Today he can't do that.  Or she can't do that, because a burden under Rule 60, as the authors of this book point out, makes this much more difficult.  According to professors Sandler and Schoenbrod, presently the governor must go in and say that something unforeseen got in the way of carrying out the consent decree that Governor Alexander agreed to twenty-five years ago, at a moment when he might not have been paying attention to what was going on.  Or that they didn't assume the risk of change of circumstance or that modification doesn't go beyond that which is necessary to accommodate the change of circumstances.  In other words, it's not easy for a newly-elected official to go into court and even get a hearing, even have the right to have the judge consider the matter.
 
All this does is get the governor or the mayor or the school board into court.  And then the judge can decide what to do.  It's entirely up to the judge.  The judge may say, “Mississippi still only has one highway patrolman who's an African American.  Don't come back here until you have made a lot more progress.”  Or he or she may say, on the other hand, that how children who are newly-arrived in the country ought to be taught English is something that ought to be decided by today's elected school board and by parents of children today rather than back in 1973.  So it's still up to the judge.  No consent decree is ended.
 
Why would it have to be decided in ninety days?  I'll give you a good example.  Each month that the federal judge in Nashville took to himself a decision that I think should have been in the hands of the governor or the mayor cost the state $43 million.  Forty-three million dollars is enough money to give every teacher in Tennessee an $800 pay increase.  That's big bucks.
 Now, you may say I'd rather have that $800 spent on helping Tennessee TennCare recipients receive more prescription drug benefits than any other state in the country, but the governor--who's a Democrat I may say--is saying, “I'd rather Tennessee start a pre-school education program.”  So that's why ninety days.
 
And you don't have to decide the case in ninety days.  All you have to do is decide whether it ought to be continued or vacated.  Then, if there are any rights to be argued about, they can still be argued about in court.
 
Now, Roy, I know you have to leave.  Do you want to say anything before you go, and then I've got one other point I wanted to make.
 
CONGRESSMAN BLUNT:  Yeah, the only thing I'd like to say is I'm absolutely confident as I leave, Senator, that you and Michael will be more than adequate to uphold our side of this discussion.  And as has been pointed out several times, we don't do this very often.  It's been great to be here, and believe it or not, difficult for me to decide to leave, but I really don't have any choice.  So thank you.
 
SENATOR ALEXANDER:  May I continue with just one or two points, then we'll give it to somebody else?
 
The Wayne County EPA case is probably a pretty good example.  Here's a case of Congress passing, or the EPA passing what we would call “an unfunded federal mandate.”  In other words, they're telling Wayne County that the storm water runoff is problem and that they must fix it.  The only problem is that they don't send any money to fix it.  So Wayne County has to take the money out of its program for paying cops more money or out of its program to help disabled children or raise taxes or some other thing.  Unfunded mandates make mayors and governors the maddest:  Some character in Washington coming up with a big idea, holding a press conference, ordering the governor or mayor or school board to do it, and then ordering them to pay the bill also, and then going home and making a speech usually the next week about local control.  That's what usually happens.
 
So it's my opinion that the question of how much money to spend ought to be decided by people who are elected to do that, unless a federal right is involved.  We could decide all those things in Washington, D.C., either by courts or by bureaucrats or by Congress, but traditionally we don't.
 
Now, as far as the charge about the problem of leaving the definition of rights to the federal courts, that's what the federal courts are for.  We set those up two hundred and something years ago, because we didn't trust to the elected people the right to define a federal right, and so we created a federal court system with lifetime terms to define that.
 
I think this litigation is mainly about getting decisions that ought to be policy in the hands of elected officials and getting the decisions that ought to be definition of rights in the hands of the federal courts.
 
And my feeling is that making budgets, deciding what kind of English language teaching, deciding whether to spend money on mass transit or on buses are for the elected officials and rights are for the courts.
 
Let me conclude with one point.  I know why the leadership of the Civil Rights Conference see the federal courts as an ally.  They should.  I've lived through the same era you have, and there was a time in our country and in some cases there still is today--much less so than before--when, if it had not been for federal court intervention, such rights would never have been recognized.  As you mentioned, I worked for a federal judge who was a part of the requiring of the desegregation of the South at a time when state and local governments would not do what they constitutionally should have done.
 
Now, Judge Wisdom I'm sure approved some federal court consent decrees.  But on the other hand, he didn't tell the University of Mississippi to have a federal court consent decree about James Meredith.  He just said admit him.  Put him in.  And then he got out of the way for that part.
 
In the case when I was governor and we had a prison problem, Judge Higgins got involved.  But he didn't say, I'm going to run the prisons for ten years.  He said do this and then he got back.  And he said he'd get back in if we didn't, but he didn't require us to turn over the whole management of the prison system to a lawyer and a master and the federal judge.
 
So I hope we always respect civil rights and leave the door open to the federal court when civil rights  need to be defended.  But I hope we don't allow that chapter in our history when discrimination, especially against African Americans, was such a problem, to make other parts of our whole system of government ineffective.
 
So I think we're trying to draw a line here.  That's one reason we deliberately took the school desegregation cases out, to it clear we weren't trying to go that far.
 In a way, Wade said to rely on consent decrees to advance your agenda, I'm sure that's true.  What I would prefer to do in many of those cases is rely on elected officials to make those decisions.
 
MR. MELNICK:  Wade Henderson has a comment, and then we'll go to questions.
 
MR. HENDERSON:  Senator, that was a wonderful conclusion in terms of citing the role of the courts and especially John Minor Wisdom who was so extraordinarily courageous for his time.
 
I think we would all agree that the founders of our republic had an extraordinary genius in constructing this system of checks and balances that we rely upon and now take for granted.
 
And certainly the federal courts have had an historically significant role to play in that regard.  The inherent flexibility, however, of judicial interpretation allows the same institution, the Supreme Court, on one day to decide a case like Dred Scott v. Sanford; fifty years later look at a case like Plessy v. Ferguson; and fifty years later look at a case like Brown v. Board of Education.
 
The fact that the same institution could make such widely variant views of human rights and fundamental rights of citizenship reflects, of course, the individuals involved and the times in which they made their decision.
 
Certainly, the federal courts have proven to be an ally of the civil rights movement in some context.  There were certainly instances, and there still remain instances, where the federal courts cannot be counted upon to be an ally of that very same movement.  So it's not a situation where the courts have played a consistent role in favor of the rights of individuals and groups and in disregard of the rights of the states.
 
Secondly, Congressman Blunt mentioned the exemption in the House bill of "civil rights" legislation.  I think that's a terrific reflection of his commitment and others’ to advancing these goals.  I know that Senator Alexander shares them as well.
 
But I teach first-year law students from time to time and I cite for them a distinction in the law that I call “the fallacy of the misapplied category.”  Sometimes you look at a set of facts and you interpret it in one context, whether it's in torts or in contracts, and in truth it may be a contract issue or it may be a property issue.  The set of principles that you bring to the table dictates a different outcome.  So when you look at civil rights legislation per se, certainly you can ground it in questions of what does Title VI of the Civil Rights Act mean in terms of ensuring that federal funds won't be spent in a racially discriminatory or gender-discriminatory way (that's really Title IX).
 
At the same time from our standpoint: what about kids who are living in communities that are ravaged by environmental problems?  Sightings of, you know, sewage.  And sightings of incinerators and things of that nature, which have an intersection of environment and conventional civil rights analysis.
 
Consent decrees also often save you the need to battle over explicit findings of discrimination that would often be painful to establish for both parties.  There are sometimes instances where an institution doesn't want its face rubbed in its past practices as a predicate for going forward to resolve an issue that we all know deserves resolution.
 
To the extent that you foreclose the reliance upon a consent decree, you are encouraging plaintiffs who bring these cases to battle ferociously over the facts of a particular case to establish the findings necessary to allow the remedies that parties are prepared to accept individually, but would otherwise now be called into question because four years from now, they may have to litigate the very same issue and won't have the backup of the federal government which may or may not be in the same posture and the same hands.  They won't necessarily have the ability to rely upon the resources of these private attorneys general that I referred to earlier.
 
Thirdly, shifting the burden of proof is more than just a flip of a switch.  This involves doing something far more dramatic than that, because we are shifting a burden-- a difficult burden to bear in the first instance--almost impossible to bear after the fact when the federal government may be in a very different posture.
 
So I guess I would say that while I understand the motivations behind it, I still come back to a point that I continue to make over and over again:  that when there is a significant change in circumstance that justifies a modification or termination of the consent decree, current law provides that opportunity.  And if it doesn't, then show me where I'm wrong in that respect.
 
I'm not saying to you that every instance where you think a consent decree should be modified, it is modified.  But I'm saying to you the power to modify the decree exists under current law.  And to the extent that you are providing an opportunity to do what current law already provides, it's redundant and, therefore, I think unnecessary.
 
MR. MELNICK:  Thank you.  Questions?  In the back.
 
MS.[Name Inaudible][WW3]:  I've litigated for over twenty years, including years in the Regan Justice Department.  Right now, I'm a student of aging and an aging person as we all are.  It helps me to look at both sides of many questions.  On this one, I very much appreciate the opportunity to be here today.  And in thinking about this consent decree bill, I wonder if it doesn't stand the principles of federalism on their head.  In other words, aren't you imposing from the federal congress what the Tennessee voters should be instructing their officials to do?
 It seems to me that if the Tennessee voters felt that there should be $800 a year more for their teachers, then they could communicate to their elected officials that their elected officials should go in and follow the mechanisms prescribed to modify a consent decree.
 
Also, as a litigator and including a Justice Department litigator for a number of years, I would have a hard time advising a client to enter into a consent decree under these circumstances.  It buys you virtually nothing.  And, therefore, I think that, by this bill, we would mostly be eliminating consent decrees as a method in our system of justice, and it is a system of justice which I felt as someone who got up and said, “I represent the United States of America,” I didn't feel like I needed a permission slip from Germany or somewhere else to say what those principles are.  I really, really wonder if this is the right way to go about this, but I also very much appreciate the opportunity to discuss this and just have grave concerns about it.  Thank you very much.
 
SENATOR ALEXANDER:  Are you still litigating?
 
MS.  :  I am now an official student of gerontology.
 
SENATOR ALEXANDER:  Oh, that's good.  Thank you very much.  To your two points.  At the risk of helping to re-elect a Democratic governor, I would say the Tennessee voters do agree with what he's attempting to do, and we'll find out when he runs for reelection next year.
 
But they can't get it done, because the two federal judges that Michael Greve talked about won't let go of the case based on three consent decrees that were entered into by predecessors over the last twenty-five years.  The governor and his attorney general are rushing back and forth between Cincinnati to the federal court and then back to Nashville again.  And the difference of opinion is whether to continue to spend this much money on health care or this much money on education.  And it's big bucks.  It's giving Tennessee teacher $800 more dollars as an example.
 
So I think what we're doing is simply defining the rules of the game for the federal courts that the Congress has the right to create, and it says if it's still a good consent decree, then the plaintiff ought to be able to show the court why it still needs to be continued.
 
As far as not allowing consent decrees to continue to be useful, I would respect your experience.  Professors Sandler and Schoenbrod, who've had a lot of experience, too, as litigators and public interest lawyers, believe it still would be a very useful tool.  In practical case, a governor, like Governor Bredesen, is likely to be there eight years.  If you're dealing with him, you've got him for eight years.  The next governor would only be able to go into the court and say, I'd like to change it.  The judge would say why.  The plaintiff would say why it needs to be continued, and if it needs to be continued, the judge would continue it, and then allow it to be changed.
 
So I don't know why lawyers who aren't elected should have more influence over public policy decisions for a longer period of time than governors and mayors who are elected when policy is what we're talking about, not constitutional rights.
 
MS. [Name Inaudible]:  I wanted to emphasize I am speaking on my own behalf.  Also, I wanted to say that if it is the Tennessee judge, then it should be the Sixth Circuit that took care of the problem.  Unfortunately, it will tie the hands of elected officials around the country.  But beyond that, I just thank you for this opportunity.[WW4]
 
SENATOR ALEXANDER:  Well, the Sixth Circuit hears appeals on this case about once every three weeks, and keeps sending them back to the judge, and the judge and the master and the plaintiff's lawyer they make a lot of money on this, you know.  They get paid well and have for the last twenty-five years.  And they like running the Tennessee health care system, and they want more money spent on health care than on education, but they're not elected to make that decision, in my opinion.
 
MR. TAYLOR:  My name is Bill Taylor, and I'm vice-chair of Leadership Conference on Civil Rights.  I have litigated civil rights cases, mainly school desegregation cases, over the course of fifty years.  I might say to you, Senator, on your last remark, I'm sympathetic to the problem of district judges who make rulings that you have to keep taking to the courts of appeals and trying to get things straightened out.  That seems to come with the territory.
 
I debated whether I should say anything because, as Senator Alexander has said, school desegregation should be an exemption under this bill.  Since that's been a prime concern of mine, maybe I should leave well enough alone.  But, as Wade says, I think there are many kinds of issues where the rights of and the interests of young people and equal opportunity would be threatened by this bill, not just desegregation.  So I think we ought to debate it more widely.
 
Also, Mr. Greve seems to think that desegregation is a classic example of why this bill is needed, so I don't take that lightly, either.
 
Just a couple of things really.  The case where I've had the longest experience, the consent decree that we arrived at in 1983 in St. Louis, and the St. Louis suburbs.  (That's another reason I didn't want to alert Mr. Blunt to this issue.) It resulted, after a great deal of discussion, in the largest metropolitan school desegregation program in the country where school children from St. Louis, African-American kids, most of them poor, go to school in the suburbs.  This decree has been modified over the years.  People have learned from experience, and we have gotten to the point where large numbers who attended schools in twenty-two suburban school districts have graduated high school and have gone on to college in much greater numbers than kids who remain in the city.
 
Now, what would have happened if we had this legislation in effect at the beginning?  I will tell you that this was difficult, contentious; that it wasn't federal judges imposing things.  Indeed, over the course of the twenty-two years, the great bulk of the oversight of this case has been in the hands of two Republican judges appointed by Republicans.  One of them is named Limbaugh.  So I'm not ready to buy the notion that these are overreaching judges.  In my case anyway, these are conservative judges and I think that’s true in many other cases.  But they were looking for constructive solutions about things.
 
At the same time, there was so much bitterness that I can say that in the years that immediately followed the agreement, there were new people elected to office who had made this an issue, who, I think, would have been quite prepared to go back into court and open up the decree, and you would have had the same kind of bitterness that you had beforehand.
 
Rather, we got a lot of contention, but over the years we got a constructive process that was put into effect so that toward the end of that process, the support for doing something for the kids under the Fourteenth Amendment and doing something under this consent decree was there.  You got a state legislature which at the beginning would not have voted money that voted money to support the program.  You got support in a referendum, and you had a process that people participated in through the fairness hearing that was allowed to work and to produce a result.
 
I think that will not happen, or at least not happen in important cases, under this kind of legislation.  Again, as Wade said, some of my clients in this case said, ”We don't really want to settle this case.  We would like to have our story told.”  And their story was a pretty bitter story of racial discrimination.  But most people said, “We'd rather have the result than have the opportunity to air our story.”  If people had to go into court and prove this, you would have had a reopening of racial bitterness.
 
So I think all of these things, Senator, ought to be taken into account as you proceed with this legislation.  Thank you.
 
MR. MELNICK:  We have a lot of questions and not nearly enough time for them all, so I would ask you to keep your questions short.
 
MR.  [Name Inaudible][WW5]:  Thank you.  I'm with the Enforcement Office of the EPA, and I note that there are no members of the executive branch on this panel today.  I think you would be well-advised to sit down informally with some of us who do this on a routine basis and talk about it, because I think there's some fundamental misunderstandings of why we do consent decrees.
 
The point has been made by Professor Henderson, and I won't belabor it, that we do this--we make settlements because neither of the parties wish to prosecute the case, and so you take all the issues of liability off the table and you find a result.
 
I should say in fairness that although I stand for an agency that has been complained against bitterly and perhaps properly, I am a fiscal conservative.  I'm very comfortable with the kinds of concerns you have, but the fundamental problem is that the agencies and the private attorneys general are implementing laws where we do not have the freedom to balance competing social needs.
 
We aren't free in a consent decree to say, “Gee, you have to do ‘X’ unless there's a flood, unless we recognize that there are important changes that need to be made in some other program.”  I wish we did.  I have to put this back on your shoulders.  If you want us to take that into account--and I wish we could in a more explicit way than we do now--then you need to give us that authority and that would be a better piece of legislation than trying to control what could be done post hoc.  Thank you.
 
SENATOR ALEXANDER:  Thank you.  If I could just respond.  I don't want give you that authority because that's what I'm elected to do.  And I would suggest if you want that authority, you should run for office.  And I say that not in any mean way, but because going back to Lincoln, this is a government “of the people, by the people, for the people,” and most decisions are to be made in a democratic sense, which means we all get a say.
 
Now, take these important environmental cases.   You enter into a consent decree with the City of Knoxville, for example, about storm water runoff, which is a tough issue, and the mayor consented.  The last mayor was there 16 years.  You can still do that.  And that mayor can continue that.  He could go back into court after four years and--I mean he could come to you after four years and say, “Shall we end this?”  And you might say, “Fine.  We've done it.”  Or he can come to you and say, “Shall we end this?” and you say, “Nope.  You haven't done what I think you should do.  Let's go to the judge.”
 
Under our law, you'd go to the judge within ninety days, and you, the EPA, being thoroughly familiar with the case would say, “Judge he'd like to quit, but he hasn't done what he said he'd do.  The consent decree needs to continue to be enforced according to its terms.”  And the judge is free to say, “I agree with you, Mister EPA.”
 
Now, if there is a new intervening case, the governor or the mayor comes in and says, “We've got to build a new school.  We've got to build a new road.  We've got to do this.  We've got to do that.  And we're spending too much money on storm water runoff.”  And if no constitutional rights are affected, then I think it's up to the voters of Knoxville to decide how to create the budget rather than to put that burden on people who are trying to enforce the laws of the EPA.
 
I hear what you're saying, but I'd rather get those decisions ultimately back in the hands of elected people.
 
MR. GREVE:  I’d like to add something--hopefully, very quickly.  Both Mr. Taylor and Wade Henderson earlier said, “We don't want to take these things to the liability stage.  We don't want to prove them up.  There are good reasons--for flexibility and other reasons--not to do that.  Let's move on.”
 
Yeah, and there are good reasons to be very nervous about that kind of stuff.  For one thing, you run the risk of consent decrees that embody billions of dollars worth of "remedies" without any findings that there ever was a violation, precisely because neither side wants to go to the liability stage.
 
I'll add one more thing.  Wade, this is a genuine question:  I don't quite understand why one would be so willing to give up on the liability aspects.  The allegations here are that some government body intentionally discriminated on the basis of race--in 2005.  Nobody is held to account.  Nobody loses their jobs.  Nobody pays up.  Everybody just says, “Let's move on,” and to be brutally frank, “Let's buy some more school buses.  That will fix the problem.”
 
That just strikes me as an utterly irresponsible system.  To the extent that this bill would focus the attention where it belongs:  “Is there a violation of a right--yes or no?”  I think it's a very well-advised piece of legislation.
 
MR. LAZARUS:  Yes.  Thanks, Shep.  Just very briefly, Michael.  People do not call up the other side's lawyers and suggest that they negotiate a consent decree if they think they're going to win the case.  Let's face it.  Consent decrees get negotiated because the party that initiates the negotiation believes that it has the wrong side of the law.
 
The more important point is the point about unelected officials and elected officials and democracy, Senator Alexander, which is a major theme of the book, a major theme of your bill and obviously something you feel very strongly about.
 
First of all, this is not a question of unelected judges versus elected local officials.  It's a question of the laws passed by elected officials who are Senators and Congressman that have to be administered or implemented by the local officials.  So we have two levels of democracy.  We all know this, but we really are talking about a federal democracy, and the interaction between the federal law that has been democratically enacted and the application of that law by local officials is always going to be kind of difficult.  There's no way it wouldn't be.  And so the question is, ”Do we want federal district judges to be put in this critical place in the process?”
 I have to ask you, what's the alternative?  Would you rather have a vastly expanded EPA with local officials overseeing the state and government officials?  I don't think so.  I actually think that our system has a great genius about it.  Judge Wisdom was uniquely equipped to apply federal law to a locality that wasn't really excited about it, because he came from there.  The local district judges and appellate judges actually, at least traditionally until rather recently anyway, largely get picked by the Senators from that locality, which is a good thing.  I think that they're very much in a position to be knowledgeable.  But in any event, fundamentally, I think that you should look at that.
 
Also I think that the visibility of this whole process in terms of being able to alert the local citizens to what's going on when it's in the hands of a federal court is likely to be higher than it would be if we had some other process.
 
So I think this is probably a pretty good process compared to whatever we might otherwise have.  We should step back before we throw serious monkey wrenches into the way this process operates--and we on this side, and other people from the audience have noted, that there really are serious monkey wrenches in this bill.
 
SENATOR ALEXANDER:  I've got, if I may, just one point.  It's not always good when local people pick the federal judges.  (Judge Wisdom may reappear at any minute--we're talking so much about him.)  The local southern politicians picked the segregationist district judges all through the '50s, '60s, and '70s.  Judge Wisdom and Judge Brown and Judge Tuttle overruled them because the Senators had from that region had nothing to say about their appointment.  The only reason they were able to get appointed was because under the courtesy of the time what the democratic Senators thought only affected the district segregationist judges who were appointed and not the desegregationist appellate judges.  So it's not always good to have locals pick.
 
MR. LAZARUS:  Not only Republican Presidents who could do that were as liberal, whereas the Democratic Presidents wouldn't have been able to.
 
SENATOR ALEXANDER:  Well, that's actually true.  That's actually true.
 
MR. LAZARUS:  I know it's true.
 
SENATOR ALEXANDER:  No, no, that is true.  There's a whole book about that.  Another thing I'd like to keep coming back to:  This doesn't take one single case out of one single court.  If Governor Bredesen wants to vacate the TennCare decree in Tennessee, all he has to do is go see Judge Haynes and Judge Nixon, and if they don't want to modify the existing three consent decrees that have existed for 25 years, they don't have to unless they're overruled by the Sixth Circuit.  And so far, they haven't agreed to modify it, so the best evidence that this doesn't take cases out of courts is the number of judges who today want to keep those cases.
 
MR. MELNICK:  Let's take a couple more short questions, and then we'll have some final comments.  Yes.
 
MR.   [Name Inaudible][WW6]:  I'm with National Health Care Programming.  Senator Alexander, I have a question about the bill.  Among other things, it defines consent decree as a judgment in which the state has in any way acquiesced. Based on my experience, if this bill passed, I will probably just go to trial every time because I've never had a defendant call me and say, “I'm about to win; would you like to enter into a consent decree?”  They know I'm going to win, and I know I'm going to win and so it will take longer, and I'll win.
 
But now I get an opinion from the court.  What usually happens in my experience, almost always, in fact, is the court rules and then asks both sides to propose terms for a judgment, because the court doesn't want to have to sit down and figure out all the messy details.  My question is: if the state has some proposals and I have some proposals, and the judge accepts any of the state's proposals, any of them, is that a judgment in which the state has acquiesced and is that, therefore, subject to your bill despite the fact that it's pursuant to a judgment at the end of the process?
 
SENATOR ALEXANDER:  That's a very good question.  Let me think about that. You may have raised something I haven't thought of.  So that's very helpful.  Let us think about that a little bit.  We've got time to affect it.  My guess would be that this bill would not affect that because it's fairly routine for a judge at the end of a case to ask the litigants to prepare offers and the judge doesn't want to do all that.  And so at the conclusion of the case, he asks for a submission of those things.  Then he approves them.  My initial reaction is that this should not interfere with that.  But let me think about that.  That's a very helpful suggestion.  Thank you for bringing that up.
 
MR. GREVE:  Let me very briefly add something.  I do not believe it is right to say that these decrees are always really fiercely resisted by governments.  A ton of government agencies want to put themselves under consent orders precisely to immunize their budgets.  What was the biggest organization to resist the Prison Litigation Reform Act?  Answer:  the prisons' wardens' organizations.  That's a political example of something that happens all the time.  A ton of these things are collusive in essence if not in real fact.
 
Let me just say one more thing.  You've just said, “They call me because they think they're going to lose, so I don't care about this thing because I'll just prove up the liability and then I'm at the same point.  It just takes longer.” On the other hand, Sy said earlier that this bill adopts a definition of federal right that in effect builds or at least alludes to what the Supreme Court has done with the notion of a federal right over the past 15 or so years, in which case it's not a matter of “I'll just prove it up.”  This bill may actually be quite narrow depending on how it's read in federal courts.  I totally agree with Sy that it may be very, very meaningful here.
 
MS. [Name Inaudible]: I'm [WW7]with the National Senior Citizens Law Center.  Following up on that point about federal right and Sy's question about environmental cases, Senator Alexander, you said that this bill wouldn't take one single case out of the court. As I read it, I respectfully disagree.  And I actually think you disagree, and as I'm reading, I think Michael Greve disagrees as well.  You talked about constitutional rights.  Well, there's certainly no constitutional right to environmental protection and there's really no statutory individual right, either.  If there's sewage in drinking water, that's a public issue.  It's not an issue of individual rights.  When the Justice Department goes in there to enforce the statute, they don't do it asserting individual rights.  They're doing it on behalf of the public and so do you disagree that this bill would immediately terminate all environmental consent decrees?
 
SENATOR ALEXANDER:  It doesn't terminate one single consent decree.  All it does is permit an elected official to go into the court, if he or she chooses, and asks that that consent decree be vacated or modified.  If the plaintiff's lawyer can show that there is no reason to do that, the court may decide to continue it.
 
MS. [Name Inaudible]:  Even if it's an not an individual [WW8]right?
 
SENATOR ALEXANDER:  If it is an existing consent decree, the court may decide to continue it.
 
MR. MELNICK:  We're committed to ending this on time.  So I thought I'd just ask the panelists for a last word.
 
SENATOR ALEXANDER:  I have to leave.  And I don't want to be rude, but I have to be back.  I want to thank Wade and Sy and Michael and all of you, our moderator, whom I met first in New Hampshire, when I was living there for a while.
 
I want to thank you for this, and I would like to introduce John Grant.  John, will you wave your hand?  John is on my staff.  He's at 224-4944 is our number.  We have a hearing coming up in the Senate sometime soon; one in the House sometime soon.  We'd welcome any comments you h