(1976) (hereinafter, Constitutional Perspectives).
Professor Blumstein expressed particular concern about "the necessarily narrow expanse of a court's analytical horizon". Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 300. The implementation of an injunction or consent decree could require massive state expenditures, forcing the state to either curtail other worthwhile programs or raise taxes, but the court does not grapple with those decisions. "Courts deal with live cases and controversies which center on the grievances of specific parties and their particularized constitutional claims. ... They do not take evidence on [funding] issues, have jurisdiction only over the parties to a lawsuit, and have fewer guideposts [than state officials who routinely make decisions about the allocation of state resources] for determining either what should be given up in order to effectuate a decree or how much must be spent to remedy a constitutional violation." Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 300-01. Blumstein argues that decisions about funding priorities should be made by the politically accountable branches of state government, and not imposed by federal courts. Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 301-03.
Ideally, the fact that the State is a party to the litigation should ensure that the decree, especially a negotiated one, does not impose a legal or financial burden that the State is unwilling or unable to meet. However, there are several instances in which this check does not operate properly.
The first is when a defendant department sees a lawsuit as "an opportunity for it to secure more funds than it might otherwise receive in the budget derby and therefore look[s] on the suit as a friendly one". Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 301. At the least, professionals within a defendant department who are frustrated by the compromises that result from the competition with other claims for scarce resources may welcome an opportunity to dramatize, and perhaps exaggerate their needs in a forum where theirs is the only financial claim under scrutiny. Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 302. At the worst, the court's inability to weigh competing claims for resources creates the "possibility that the judiciary will be used by dissatisfied bureaucrats as an end-run around normal budget-making procedures," resulting in collusive lawsuits between special interest groups and state agencies. Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 301. The are many examples of such "sweetheart suits", most of which did not begin as outright collusion, but nonetheless end with the parties drawing up a "wish list" for the court to approve and the state to finance. See Blumstein, Constitutional Perspectives, 40 Law & Contemp. Probs. at 301-02 nn. 439, 443 (collecting cases).
Another instance in which having the government as a party may not provide the expected check on the scope and cost of a negotiated remedy is when an outgoing administration negotiates a consent decree that it will not have to abide by. The dangers of that situation were amply illustrated in United States v. Board of Education of Chicago, 717 F.2d 378 (7th Cir. 1983), Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984), and Women's Equity Action League v. Bell, 240 U.S. App. D.C. 42, 743 F.2d 42 (D.C.Cir. 1984), all of which involved consent decrees negotiated by the Carter Administration and resisted by the Reagan Administration. See discussion in Jeremy A. Rabkin and Neal E. Devins, Averting Government by Consent Decree: Constitutional Limitations on the Enforcement of Settlements with the Federal Government, 40 Stan. L. Rev. 203, 246-64 (1987).
In these situations, the weakening of the traditional adversary relationship between the parties may result in a decree which the defendant department is happy to sign, but with which the broader administration or the successor administration has no intention of complying. That administration may seek to have the decree vacated as collusive, as occurred in Simer v. Rios. See Simer v. Rios, 661 F.2d 655, 659-60 (7th Cir. 1981) (summarizing case history), cert. denied, 456 U.S. 917, 72 L. Ed. 2d 177, 102 S. Ct. 1773 (1982). Alternatively, the administration may simply refuse to implement the decree. A battle with a resistant bureaucracy costs the plaintiff its settlement, reduces respect for the court, and threatens the court's effectiveness in enforcing the Constitution. As Professor Blumstein noted, state and local governments are particularly well-equipped to resist orders to allocate funds:
Since courts do not have authority to raise funds on their own or even to shift funds from one department to another unless both units are joined as parties in a lawsuit, they must ultimately rely on defendant agencies and state governments to acquiesce, either out of respect or through intimidation. Where courts impose allocation priorities, they therefore risk impairing their own institutional credibility and their political stature if a recalcitrant defendant refuses to appropriate sufficient funds or otherwise aggressively resists judicial action. Such defendants who vigorously oppose implementation of judicial decrees ... have a potent political weapon that could help undermine public support for court interventions. They can place the court in a very unfavorable light by closing out popular and visible programs ... in order to galvanize popular opposition to judicial action.