Government Consent Decrees and the Paradox of “Consent”: A Critical Case Study

Government consent decrees afford unique opportunities for interest groups to shape the outcome of public policy. This is especially so when the defendant agency is controlled by an executive that is sympathetic to the aims of the plaintiff interest group. In such a situation, it is possible for interest groups and agencies to develop policies that go well beyond what a court might ordinarily order as a form of judicial relief, in a way that bypasses legislative branch authority. Such policies will have the additional advantage, from the parties’ point of view, of being irrevocable at the hands of succeeding administrations. Moreover, executive branch officials are able to avoid public accountability for the implementation of policies that are potentially unpopular or divisive. Placing government policy made in this fashion under the rubric of “consent” is highly problematic, because policymaking by consent decree violates constitutional norms and bears none of the indicia of popular consent.