Consent Decrees: Thinning Out the Forest of Laws
The Forest of Laws
The Department of Justice’s litigators have decided that management of the Minneapolis police department may no longer remain where the law says it must remain. This must be so, they say, because they are on the hunt for policing patterns and practices that allegedly produce racially disparate results. No one wants such things, and so if they exist (emphasis on if) they should be got at, yes? And if they are there, mustn’t that justify a certain . . . latitude . . . in the means employed in getting after them?
There’s something bracing about a righteous pursuit of justice. There’s moral clarity to be found there. A singular focus and sense of purpose, too. Combined, they produce a self-reinforcing (and self-referential) conviction that nothing can (or should) stand in the crusader’s way. In the most intoxicating of moments it’s even possible to see the arc of history bending itself to take up an intersecting course.
It can also be blinding. There’s much to be said about this, but Robert Bolt probably said the most important part in his play “A Man For All Seasons.” So let me start there, and then I’ll turn to why I think the Department of Justice is failing where Sir Thomas More succeeded.
It was the first half of the 16th Century, and King Henry VIII wished to put away his wife in favor of another. But he also wanted Sir Thomas More’s support for his plan—support he could not give with a clear conscience. Meanwhile Richard Rich had been capitalizing on More’s reluctance by plotting his fall from grace. Will Roper knew of Rich’s villainy and implored More to have him arrested. But More demurred because, although a villain, Rich had broken no law. This was of no moment to Roper; it was enough that Rich was a bad man doing bad things, even if the laws of England didn’t make him a criminal. More was for leaving him be unless he were to violate the law.
Out of this tension Bolt crafted an enduring lesson about the necessary persistence of the rule of law even (especially?) in the middle of a righteous pursuit of justice:
More: And go he should if he was the devil himself until he broke the law!
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – Man’s laws, not God’s—and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.[1]
More’s commitment to the law in the face of what was surely sore temptation is worth emulating. I would commend Bolt’s play to the Department of Justice’s attention, but I’m worried their litigators would side with Roper.
Thinning Them Out
The Department and the City did a conceptually curious thing—they settled their differences over the allegations of “pattern and practice” improprieties before filing a lawsuit, but then filed a lawsuit anyway. Included with the complaint was the settlement they had reached along with a request that it be entered as the court’s judgment—a consent decree.
The point of this gambit, apparently, is to confer the force of law on an otherwise unenforceable agreement. Without the court’s imprimatur, this settlement would fall apart for two reasons. Well, two and a half reasons, but it should be three.
First, the agreement requires the City to exercise authority it does not have. The proposed consent decree exceeds 400 paragraphs, and reads like a detailed manual for the management of the Minneapolis police department. Presumably the City Council could adopt these provisions as a series of ordinances; so far so good. But the agreement requires these provisions to remain unchanged indefinitely.
A City Council can do many things, but prospectively forfeiting its legislative power is not one of them. The redoubtable Chief Justice John Marshall observed, some 200 years ago, that “one legislature is competent to repeal any act which a former legislature was competent to pass,” which means that “one legislature cannot abridge the powers of a succeeding legislature.”[2] “The correctness of this principle,” he said, “so far as respects general legislation, can never be controverted.”[3] So if the City Council cannot, in the normal course of its business, enact ordinances immune from repeal, one must wonder why it may accomplish the same thing through a contract. The answer, of course, is that it cannot.
And that has significant implications for a consent decree. The operative power of these hybrid arrangements comes from their contractual countenance: “[I]t is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree.”[4] So if a settling party doesn’t have the authority to make the commitments contained in the agreement, entering them as a consent decree does nothing to make up for this foundational deficiency.
The second reason this arrangement is untenable is that it disposes of the rights of people who are not parties to the agreement. Minneapolis residents vested the city’s legislative power in the City Council. They did not confer on that body the authority to alienate the vested authority, either through its own legislative acts or through contract. The settlement agreement, however, purports to do that very thing, at least in part. It indefinitely transfers the Council’s legislative authority to modify management of the police department to the Department of Justice and/or a federal court. Further, it also abridges their constitutionally-protected right to petition their government for redress of grievances.[5] The City and the Department of Justice are currently asking the court to accept an agreement that not only dispenses with these rights, it does not even mention their existence. To the extent we still believe in the concept of self-government, this has to be counted as a grievous loss to Minneapolis residents’ right to govern themselves—a loss they did not authorize.
Finally, a proper understanding of the federal government’s authority would reveal there is a third reason the proposed settlement is unlawful: It expands the authority of the United States government beyond constitutional boundaries—and in this instance, statutory boundaries as well. The consent decree recites that it is “effectuated pursuant to the authority granted to the United States” under a series of statutes, one of which is the Omnibus Crime Control and Safe Streets Act of 1968. That statute specifically forbids the federal government from gaining control of a police department: “Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.”[6]
But that’s exactly what the settlement agreement accomplishes. The proposed consent decree is nothing if not the embodiment of the Department’s view of how the police department should be managed. And although the court retains authority to modify the decree, the Department would remain free to argue that its policing policies ought to be retained, even if the City objects.
More broadly, the Department of Justice operates outside of constitutional boundaries (in my opinion) when it demands settlement terms it has no authority to obtain directly through legislation or a court judgment. We still acknowledge, as a formal matter, that the federal government is one of enumerated powers, not plenary. But we rarely behave that way. Policing is a matter of quintessentially local concern, one that Congress has no authority to preempt. And yet the United States Supreme Court regularly remarks that the federal government may obtain indirectly what it is prohibited from obtaining directly: “[A] federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial.”[7] If that is so, then consent decrees open up broad vistas of extra-constitutional power where the government may make mischief.
So, in Minneapolis at this very moment the Department of Justice, in its righteous pursuit of racially disparate statistics, is clearcutting the laws circumscribing its own authority, the authority of others, and the rights of those not a party to its endeavors. Will Roper would, I imagine, approve. And that’s an embarrassment to the rule of law.
[1] Bolt, Robert. A Man For All Seasons (Modern Classics).
[2] Fletcher v. Peck, 10 U.S. 87, 135 (1810).
[3] Id.
[4] Loc. No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 522 (1986).
[5] “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” U.S. v. Cruikshank, 92 U.S. 542, 552 (1875).
[6] 34 U.S.C. § 10228(a).
[7] Local 93, Int’l Ass’n of Firefighters, 478 U.S. 501, 525.
January 24, 2025