Frew v. Hawkins
Do states waive their
immunity when they sign consent decrees?
Decided January 14
Something for everyone with an interest in federalism: Frew v Hawkins, which
grew out of a Medicaid lawsuit in Texas, takes up Section 1983 law, statutory
intent, state sovereign immunity, and the enforceability, in federal court, of
state consent decrees. (As an added attraction, there's a passionate amicus
brief signed by the odd assemblage of the AARP, the ACLU, nineteen attorneys
general and the anti-defamation
league).
After being sued for failing its obligations to
children under Medicaid law, Texas agreed to change its ways by signing on to a
federal consent decree. Plaintiffs weren't impressed with the results and, two years
later, filed a motion in federal court to enforce the agreement. Texas health
officials, in response, claimed to be in
compliance with the decree, thank you very much, and immune from compliance
action under the 11th Amendment.
The Supremes did not agree. Consent decrees are entered
into by states, explained a 9-0 bench, to comply with federal law. States'
rights arguments carry little water in this context. ("Consent decrees
entered in federal court, Justice Kennedy explains, "must be directed to
protecting federal interests.") While the Court expresses sympathy for
states who feel "undermined" by onerous and open-ended rules, there is
no constitutional principle to relieve them. Federal courts should simply be
more circumspect when they apply their mighty powers. ("If the State
establishes reason to modify the decree, the court should make the necessary
changes.")
A
reasonable enough ruling, if one ignores forty years of judicial overreaching in
this area--and the reluctance, of federal judges, to undo what has been
implemented. As Professor Sandler and Schoenbraod have recently explained,
consent decrees are "binding blueprint(s) enforced by judicial power—a
unique, custom-designed management protocol that channels a local government's
budget and resources, overriding the political process by which decisions about
public policy are normally made. In principle, decrees are supposed to be lifted
when the city complies. In practice, they can be interminable In the most
difficult areas of public policy, local governments rarely achieve sustained
compliance sufficient to wipe the slate clean."
decision
here
5th Circuit opinion here
Sandler
and Schoenbrod make their case in City Journal
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