Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases

60 Pages Posted: 22 Nov 2013 Last revised: 24 Sep 2016

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: November 20, 2013

Abstract

Consent decrees raise serious Article III concerns. When litigants agree on their rights and jointly seek the same relief from a court, they are no longer adverse and a justiciable controversy no longer exists between them. In the absence of an actual controversy between opposing parties, it is both inappropriate and unnecessary for a court to issue a substantive order declaring or modifying the litigants’ rights. Whether Article III’s adverseness requirement is seen as jurisdictional or prudential, federal courts should decline to issue consent decrees and instead require litigants that wish to voluntarily resolve a case to execute a settlement agreement, which, as a private contract, does not implicate the same justiciability problems.

Consent decrees raise unique separation-of-powers issues in lawsuits against government entities concerning the validity, proper interpretation, or enforcement of statutes or regulations. Government agencies and officials may accede to such decrees to entrench their policy preferences against future change, impose legal restrictions and obligations on their successors, and constrain those successors’ discretion — all without a court determining that such relief is legally necessary. Such concerns would not arise if government defendants resolved such cases through settlement agreements, because the reserved powers doctrine and general prohibition on specific enforcement of government contracts prevent government entities from using settlement agreements to improperly limit their (and their successors’) discretion and authority.

If courts are not willing to refuse to categorically decline to issue consent decrees on Article III grounds then, at a minimum, they should require litigants in government-defendant cases to demonstrate that the plaintiff has stated valid claims and that the requested relief is required to remedy the legal violations at issue. Courts must ensure that government defendants do not use consent decrees to circumvent the traditional legislative and regulatory processes and establish binding requirements for which there is not actually any constitutional or legal basis.

Keywords: consent decree, remedies, settlement, federal courts, entrenchment, injunction, public law, constitutional law

Suggested Citation

Morley, Michael, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases (November 20, 2013). 16 U. Penn. J. Const. L. 637 (2014). Available at SSRN: https://ssrn.com/abstract=2357622

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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