The Justice Department said yesterday it will no longer settle lawsuits with consent decrees that require the government to change regulations or seek additional funding, saying that such agreements have caused "an unwarranted expansion" of judicial power at the expense of the president.
The new policy, which officials said may force public-interest groups to take more cases to trial, will affect litigation ranging from civil rights and environmental issues to prisons and mental health facilities. Consent decrees are settlements approved by a judge and subject to enforcement by court order.
New guidelines, detailed in a memo from Attorney General Edwin Meese III, said the department will no longer sign consent decrees that order the government either to spend money not appropriated by Congress or to seek new congressional funding. The memo also ruled out decrees that require the administration to propose or revise federal regulations.
Some past consent decrees have served "to preempt the exercise of . . . prerogatives by a subsequent administration," Meese said in the memo.
Assistant Attorney General Charles J. Cooper, head of the department's Office of Legal Policy, said the focus is on decrees that contain "an elaborate recipe on how the executive branch is going to act thereafter. Frankly, I don't think it will be that often."
Cooper cited few examples. In one case, Cooper said, a judge told the Housing and Urban Development Department how it had to run a mortgage assistance program for the poor. In a Chicago desegregation suit, he said, a judge ordered the government to provide millions of dollars to aid schools.
Public-interest groups expressed criticism of the attorney general's new guidelines.
"It appears that Justice once again is abandoning enforcement policies used by previous Democratic and Republican administrations," said Ralph G. Neas, director of the Leadership Conference on Civil Rights. "The net result would be a narrowing of remedies that would be available to victims of unlawful discrimination" and more "prolonged and costly legal proceedings."
Alan B. Morrison, director of Public Citizen Litigation Group, said the guidelines do not sound much different from current practice, but questioned how they would be carried out by Justice officials.
"I think they don't want to be bound" by decrees, he said. "They want to be able to stop litigation and change their minds later. That's why you have consent decrees."
In a hypothetical case involving prison overcrowding, Cooper said, the Justice Department might reach agreement to build a new prison wing, but would not make the same pledge in a court-enforced consent decree. The difference, he said, is that if conditions change, "The judge cannot order the government to spend the money."
Cooper said the policy, which would also limit the use of special masters to hear litigation, is designed to stop judges from assuming powers that they would not have even after a full trial.
He said the guidelines, which can be waived by the attorney general, would generally apply to cases in which the government is a defendant.
Cooper conceded that the approach was generating protests from public-interest groups that regularly sue the government. But, he added, "I doubt the guidelines will be so effective that these plaintiffs won't bring the suits."