Federal Consent Decree Fairness Act

Mr. Speaker, I rise to claim my time out of order.

I do thank you, Mr. Speaker.

Tonight, I come here as we do each week as members of the Constitutional Caucus come here on a regular basis to present a series of 5-minutes following the day's activities and the day's votes. We do so tonight to focus on really one of the most important and significant issues dealing with our Constitution and threats to our constitutional rights as well.

Before I do that, let me just say this, that I wish to show my utmost appreciation earlier this evening for the majority whip coming out and joining us to discuss a piece of his legislation that goes to this very fundamental issue and also for his efforts to work to protect those basic liberties of every American.

The threats that I am referring to is our Founding Fathers' principles of self-government and the jeopardy that comes in the form of consent decrees. For those of you who are not familiar with exactly what consent decrees are, in essence, they are simply this. They are judicial actions that are entered into between opposing parties, in this case by the party bringing the action, private individuals, usually, and State or local entities. State or local governments are basically compelled at the end of a court case to enter into these agreements. They are then, therefore, called consent decrees. In their name and on their face, they sound innocent enough. In reality, they simply can be because they are protecting rights of some sort or the other. But they can also have in the long-term a cumulative effect, a threat to the legislative process and also to the hardworking American taxpayer who supports it as well.

These decrees have resulted in judges engaging themselves in affairs outside of their constitutional job description, outside of the very framework of the protections that we have established in our documents of checks and balances. I say that their intents are noble and good in many cases, and that is to protect our rights, but by engaging in such blatant activism, they are actually threatening self-government itself, rights outside what our Founding Fathers intended.

I agree with what the majority whip had indicated before. This is not simply a case of dealing with judicial activism because it really goes beyond that and does not engage in that at all times. It is an understanding that our Founding Fathers had, and we have reminded those who have listened to these programs, listened to us coming to the floor each week to discuss constitutional issues, that we must be very mindful always of protecting those rights set forth by the Fathers, especially the rights of States as established in the 10th amendment. All rights not specifically delegated to the Federal Government are retained by the people and the States, respectively.

Consent decrees, therefore, can place an undue burden on the States and local officials. They can last literally for decades, long after the local officials or State officials who may have been involved with those cases in the first instance have long since left office. Newly elected officials may have come into place to find they are bound by those previously entered into decrees. They are now unable to place in policies that could rectify the situation, unable to put in policies that could solve the situation for future generations, and unable to put in policies that basically could save the taxpayers money at the end.

Judges have already tried to engage in other ways in activism, obviously of taking away our rights as we have discussed before, taking away our property rights and the democratic right to construct our marriage institutions.

But consent decrees go one step further. They chip away at the authority of our local officials, allowing judges and not the people who were democratically elected to represent them. This is not just a decision and opinions of Members of Congress. The Supreme Court has also spoken on this. In fact, in a unanimous decision back in 2004, the U.S. Supreme Court called for limiting these types of decrees in the case of Frew v. Hawkins. The court proclaimed there that Federal consent decrees could encroach on State and local power. They continued that these decrees may ``improperly deprive future officials of their designated and executive powers.'' They may also lead ``to Federal court oversight of State programs for long periods of time even absent an ongoing violation of the law.''

Mr. Speaker, for these reasons, I am more than proud to support my good friend from Missouri and his legislation, H.R. 1229, the Federal Consent Decree Fairness Act. This is legislation that would provide relief to newly elected mayors and other State officials who inherit these overly broad and outdated decrees. It would limit their ability to govern. And it would be able to respond to priorities of their constituents for the future.

This legislation will put term limits on existing decrees while setting out guidelines for the future. We must ensure that they are limited in nature, not opening the doors for future violations. Again, I commend the gentleman from Missouri.

Mr. Speaker, I ask unanimous consent to claim the time of the gentleman from Pennsylvania (Mr. English).

Mr. Speaker, I am a member of several caucuses here in the House. I am very proud to be so. But none of those caucuses, I think, are more important than the Congressional Constitution Caucus.

All of us when we came here took an oath to uphold the Constitution of the United States. It is one of the greatest documents ever written, and one that has guided this country and stood us in good stead over the time that we have been a country.

The Congressional Constitution Caucus has a statement of its belief: We ``will be an effective forum to ensure that the Federal Government is operating under the intent of the 10th amendment of our Bill of Rights.''

Those of us on the Congressional Constitution Caucus are very much concerned about the overreaching of the Federal Government. I have spoken on this issue before, but I think it is important that we continue to highlight it for the American people. And I want to read the 10th amendment:

``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''

These historic words penned by our Founding Fathers, some of the most ingenious political minds this world has ever known, set forth an important principle. The Federal Government may exercise its specific powers listed in the Constitution, and the States and the people may exercise all remaining powers.

Unfortunately, as the authors of the Constitution have long since passed, so, too, have many of their foundations for our system of government. Between an ever-expanding Federal bureaucracy that for decades has crept into many facets of traditionally locally controlled government to a Federal judiciary that time and time again completely ignores the intent of the 10th amendment, the Federal Government has become wildly inefficient and is hemorrhaging tax dollars.

Our caucus will point out that not only is State and local control over programs in line with the Constitution, it is a much more cost- effective and efficient way to provide many domestic services to American citizens. It is imperative that we highlight the need to return to a system intended under the reserve clause of the Constitution.

And I want to point out several bills that have been introduced in this session that are initiatives we hope that will move us forward in this regard. The first one is the Sunset Commission legislation. Congressman Kevin Brady has introduced two bills, both of which would establish a Sunset Commission to review the continued need for executive branch agencies and programs on a regular basis and make recommendations to the President to rein in the inevitable mission creep.

Federal consent decree legislation, H.R. 1229. Congressman Roy Blunt has introduced this legislation, the Federal Consent Decree Fairness Act, that

would level the playing field for State and local governments faced with activist Federal judges that are legislating from the bench. Federal consent decrees can be an effective judicial tool, but too often activist judges use them to lock in policy changes long after the State or local official that agreed to the decree has left office. H.R. 1229 would make it easier for State and local governments to amend such decrees.

Local control of education. Congressman John Culberson has introduced legislation that would restore State sovereignty over public elementary and secondary education in H.R. 3449. The bill would require that a State specifically authorize operation of any Federal education program for which it accepts Federal funds, waiving the State's rights to act inconsistently with any strings attached to that Federal funding.

I am proud to be a cosponsor on all three pieces of this legislation, and in the next few weeks the Congressional Constitution Caucus is going to call attention not only to these bills, but others that we are bringing to the attention of the leadership and the American people to get us back into compliance with the Constitution.