Federal Policy Making By Consent Decree: An Analysis of Agency and Judicial Discretion
Authors: Shane Peter M. 
Published: December 2018

A core lesson of modern administrative law is that our government of laws is profoundly a government of discretion. Many significant federal administrative decisions are not subject to any great procedural constraint as to their timing, origination, or format. To the extent administrative decisions are limited by congressionally imposed substantive criteria, those criteria frequently leave broad leeway for ultimate implementation. This state of affairs does not mean that government administrators are typically free to act merely on naked personal preference in the performance of their tasks. It does mean, however, that the forces that constrain discretion are often informal and largely beyond the capacity or desire of courts to review. One critical executive function where discretion infuses the execution of the laws is the conduct of government litigation. Not only government decisions to bring suit, but also the host of government decisions entailed in responding to a suit, typically are left to the near-plenary discretion of the Attorney General and subordinate lawyers. These decisions include whether and on what terms to settle litigation-choices that obviously have a great potential impact on the implementation of public policy through litigation. Courts and administrative lawyers have recently expressed substantial concern with one set of settlement decisions that doubly involve the exercise of discretion. These are discretionary *242 decisions to settle lawsuits through commitments that curtail the future exercise of government discretion with respect to particular subjects or particular parties. Such commitments may be embodied in consent decrees or other settlement agreements. Judge Wilkey of the District of Columbia Circuit, reviewing one such discretion-binding consent decree, has gone so far as to warn of the "evil(s) of government by consent decree," including what he believes to be "its potential to freeze the regulatory processes of representative democracy." Last year, the Attorney General promulgated guidelines intended to prevent future resort to such decrees. Part I of this article describes discretion-limiting consent decrees. The remainder of the article addresses the legal and policy problems that they pose. The first set of legal issues concerns the substantive limits on the permissibility of the decrees. Such limits pertain to both executive authority to enter agreements that bind future exercises of executive discretion, and judicial authority to approve such agreements. A second set of legal issues concerns the impact of such decrees on third parties, and the adequacy of existing procedures to protect third-party rights. The policy issues center on the appropriateness of executive acquiescence in a model of public law that, as explained below, legitimates a potentially significant degree of judicial supervision of administrative policy making. An informed assessment of the legality and appropriateness of discretion-limiting consent decrees must account for each of these sets of issues.