Federal Consent Decrees: Good Governance, an Expansion of Federal Power, or Both? [2021 NLC]

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In a 1987 article entitled Why Hold Elections?, Professor Michael McConnell noted a trend that had been emerging since the 1970s: the use of consent decrees to settle federal lawsuits against state and local governments. These decrees are entered as judgements enforceable by contempt, but without full litigation. Nonetheless, these decrees often contain hundreds of requirements that dictate the policies, budgets, and personnel of local government agencies for years or even decades. Professor McConnell thus warned: "To the extent that consent decrees insulate today's policy decisions from review and modification by tomorrow's political processes, they violate the democratic structure of government. They should be repudiated before they become a common part of the legal landscape."

In 2018, then-Attorney General Jeff Sessions issued a memo noting that consent decrees "raise sensitive federalism concerns" and announcing a new set of policies governing (and limiting) DOJ’s use of consent decrees.

In April 2021, Attorney General Garland repudiated the Sessions memo, stating that the "Department will return to the traditional process that allows the heads of litigating components to approve most settlement agreements, consent decrees, and the use of monitors in cases involving state and local governmental entities."

This panel will explore the important topic of federal court consent decrees to settle claims against state and local governments. Panelists will explore the history of such decrees and the arguments for and against their use. Panelists will also discuss the dueling approaches to DOJ’s use of such decrees, as outlined in the Sessions and Garland memos.

Featuring:

- Mr. Andrew McCarthy, Senior Fellow, National Review Institute; Contributing Editor, National Review

- Mr. Jesse Panuccio, Partner, Boies Schiller Flexner LLP; Former Acting Associate Attorney General, U.S. Department of Justice

- Prof. Robert Percival, Robert F. Stanton Professor of Law; Director of the Environmental Law Program, University of Maryland Francis King Carey School of Law

- Mr. Benjamin S. Wolf, Former Legal Director and Institutional Reform Project Director, ACLU of Illinois

- Moderator: Hon. Elizabeth “Lisa” Branch, U.S. Court of Appeals, Eleventh Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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