The Federalism Project

American Enterprise Institute


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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