Respondents Brief — Frew v. Hawkins

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In the

Supreme Court of the Anited States

LINDA FREW, ON BEHALF OF HER DAUGHTER,

CARLA FREW, ET AL.,

Petitioners,

ALBERT HAWKINS, COMMISSIONER, TEXAS HEALTH

AND HUMAN SERVICES COMMISSION, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF

GREG ABBOTT

Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General

JEFFREY S. BOYD

Deputy Attorney General,

Litigation

RAFAEL EDWARD CRUZ

Solicitor General

Counsel of Record

MELANIE P. SARWAL

Assistant Solicitor General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

(512) 936-1700

——OOOOoOOOOOOO OOOO

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Does the Ex parte Young exception to the Eleventh

Amendment's restrictions on federal judicial power

permit a federal court to enforce a consent decree by

ordering remedies that substantially exceed the

requirements of federal law?

Do state officials who lack authority under state law

to waive the State’s Eleventh Amendment immunity

clearly and voluntarily invoke the jurisdiction of the

federal courts by deciding to settle an Ex parte Young

lawsuit with a consent decree that lacks any explicit

waiver statement?

TABLE OF CONTENTS

Page

Questions Presented ...ccccccccssccecessssessesssneceneemseneeminsnantons i

Dalshe of Came occcccccccesccussccesssessnsissneniesnncemenmenmuamnians ii

Dalle of Asttinartthet.....ccccccosecocecessssssetecssensecemenstemeaneinnn vi

Respondents’ Be lal ......ccccccsscosesescccssessesssnesescsnsstoscapeconenns 1

Statement of Che CaGS..cccccccocescccccsssssnssvsnovecesessoeossonseneees 1

Summary of the Argument ...............sscssesssssssssssssssscesoees 6

DS GERGOE 00000cc0c0sccssscscsessscsenesnseiensnennienmemnesinnaimnintn 9

I. The Ex parte Young Exception to the Eleventh

Amendment Does Not Permit Enforcement of

- Consent-Decree Provisions That Exceed the

Requirements of Federal Law...........-s:ssesssseee 9

A. The Ex parte Young Doctrine Is a Limited

Exception to the Sovereign States’ Eleventh

Amendment Immunity from Suit ................ ~ 10

B. The Material Jurisdictional Inquiry for

Enforcement of a Consent Decree Is

Whether the Motion to Enforce—Not the

Underlying Complaint—Identifies an ~

Ongoing Violation of Federal Law .............. 12

C. A Consent Decree Does Not Expand the

Teme tty ..0000ccccccccceceonsncesnesnssssensnssesssscssosses 16

D. Eroding the Federal-Law Basis for Young

Would Raise Serious Federalism and

Separation-of-Powers Concerns.................. 22

7 7 7 2

Il.

TABLE OF CONTENTS—Continued

Page

1. The exercise of the federal judicial

power under Young should respect the

separation of powers of state

2. Maintaining Young’s constraints

ensures that federal courts operate

within the bounds of federalism and

separation of powe®S .................ccccceeeeeees

E. Consent Decrees Will Not Lose Their

Utility in the Absence of the Enforcement

Power Advocated by Frew ...............cccccees008

The State Does Not Consent to Suit in Federal

Court When State Officers Agree to Settle an

Ex parte Young Case Through a Consent

A. Frew Defaulted the Argument That the

State of Texas Consented to Suit in

B. Negotiating and Proposing the Consent

Decree Was Not a Clear Waiver by the

1. A’ State’s Eleventh Amendment

immunity from suit is not relinquished

except when done so expressly and

eee

2. A State does not voluntarily invoke the

jurisdiction of a federal court when

state officials settle an Ex parte Young

iv v

TABLE OF CONTENTS—Continued TABLE OF CONTENTS—Continued

Page Page

a. Entry into a consent decree is not a Ill. Even If the Court Decides That the State

voluntary invocation of federal Relinquished Its Eleventh Amendment

court jurisdiction....................cccceee 36 Immunity, the State Retained Other Inviolable

. Attributes of Sovereignty That Restrict the

b. Vol t t be se

Meg ayy a nen “hc District Court’s Enforcement Power.................. 49

the State is not a party.................... 37 ED eihcsiereteniciehteiiniasiaiiiaiiiancipieaieasalainatiaaiaasaitiiteaeain 50

c. The language of the decree does not |

a 39

3. Lapides did not alter the requirements -

for a State’s consent to suit in federal

court for federal-law claims................... 40

C. An Assistant Attorney General's |

Representation of State Officials in

Negotiations and Proposal of a Consent

Decree Cannot Be Regarded as the

Consent of the Sovereign....................ss.sss++++ 43

1. The Attorney General for the State of

Texas is not authorized to waive the

State’s immunity from suit in federal

D. Limiting a Federal Court’s Enforcement

Authority to Violations of Federal Law

Effectuates the Eleventh Amendment’s

Jurisdictional Constraints on Federal Power

and Does Not Promote Gamesmanship or

Impugn the Integrity of Federal Courts......... 48

TABLE OF AUTHORITIES

Page

Cases

Alden v. Maine, 527 U.S. 706 (1999)..........ccccccceeeeeeees passim

Alexander v. Choate, 469 U.S. 287 (1985) .........cccccceeeeeeeeee 15

Arizonans for Official English v. Arizona,

SEE 14

Atascadero State Hosp. v. Scanlon,

I, __-__—_—_———————————————————————— 35

Baker v. Ives, 294 A.2d 290 (Conn. 1972) ..........-.cccceeeeeeeees 46

Bd. of Educ. of Okla. City Pub. Sch. v. Dowell,

0, yyy————————————————— 19

Bell v. Wolfish, 441 U.S. 520 (1979)...........cccceceseeeeeeeeeenees 2°

Blessing v. Freestone, 520 U.S. 329 (1997) .........-..:e-eeeeees 14

City of Hutchins v. Prasifka, 450 S.W.2d 829

SO 19

City of San Angelo v. Deutsch, 91 S.W.2d 308

(0 18

Clark v. Barnard, 108 U.S. 436 (1883)................+. 37, 38, 48

Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

GBT UB, GBS CIID cccccccccccccsccscccsescesccsccssssesssssesesess passim

Demarest v. Manspeaker, 498 U.S. 184 (1991)............-++ 34

Edelman v. Jordan, 415 U.S. 651 (1974). ..........cccceeeees 35, 37

Evans v. City of Chicago, 10 F.3d 474

fl) 24, 26, 30, 32

Ex parte Young, 209 U.S. 123 (1908) ..............:eeeeeees passim

Firefighters Local Union No. 1784 v. Stotts,

RE 18, 19

Vii

TABLE OF AUTHORITIES—Continued

Page

Fla. Dep't of Health & Rehab. Servs. v.

Fla. Nursing Home Ass’n, 450 U.S. 147 (1981)............. 41

Ford Motor Co. v. Dep't of Treas.,

Be ey eT ncnsicnieinncundntnicssntctiinaiainmmsasteitin 43, 44, 45

Gardner v. New Jersey, 329 U.S. 565 (1947)...... i .37, 38, 48

Gen. Bldg. Contractors Ass’n v. Pennsylvania,

a cieresihaitientacsinrriaeicintiriaaceceaaaiitaaiatienas 16

Gen. Servs. Comm’n v. Little-Tex Insulation Co.,

ee I SE crrerternessisintcitiniceminsensiniiniinicuietmaniel 44

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)............000. 14, 15

Green v. Mansour, 474 U.S. 64 (1985)................... 11, 15, 31

Gunter v. Atl. Coast Line R.R., 200 U.S. 273 (1906) ...13, 38

Hans v. Louisiana, 134 U.S. 1 (1890) .............0.0.... 10, 27, 47

Heckler v. Cmty. Health Servs. of Crawford County,

re ae Ce rrricritenineensinicatieiiinnnimntatrceinapamanasis 18

In re Hood, 319 F.3d 755 (CA6 2003), pet. for cert.

filed, 71 U.S.L.W. 3724 (U.S. May 2, 2003)

Se Ee eresaseeinriicenncinareslintiatsietiaahciiasentiina einai 34

Kentucky v. Graham, 473 U.S. 159 (1985)...........000000. 11, 12

Kokkonen v. Guardian Life Ins. Co., : ,

ae es itech crnrninnerinieuenttnemiiiiiaeiiiaicnmasiig 12, 16

Lapides v. Bd. of Regents of the Univ. Sys. of Ga.,

ee I ctrhrsnrriiectsiasessiarieiiinieiimaneeataantaatas passim

League of United Latin Am. Citizens v. Clements,

eC ctrrcicnrreitiienrieenseeniasinasieninnieegl 45 .

Lelsz v. Kavanagh, 807 F.2d 1243 (CA5 1987) ..............0+. 15

see

TABLE OF AUTHORITIES—Continued

Page

Local No. 93, Int’l Ass’n of Firefighters v.

City of Cleveland, 478 U.S. 501 (1986)........ 15, 17, 20, 21

Meyer v. Holley, 123 S.Ct. 824 (2003)..........cccccceeeeeereeeeeeees 34

Milliken v. Bradley, 433 U.S. 267 (1977)........cccccceeeeees 21, 22

Missouri v. Jenkins, 515 U.S. 70 (1995)............0000000 passim

Office of Pers. Mgmt. v. Richmond,

PE ee 18

Overton v. City of Austin, 748 F.2d 941 (CA5 1984).......... 26

Pennhurst State Hosp. v. Halderman,

GE Te, Bp Ca ccccenscsescsestttttannatetvecsssscssssessacsscces passim

Perry v. Del Rio, 67 S.W.3d 85 (Tex. 2001) ..........ccceceeeeeeees 46

Pope v. United States, 323 U.S..1 (1944) .......cccccceceereeeeeees 17

Power v. Summers, 226 F.3d 815 (CA7 2000).............00000+ 34

R.I. Dep't of Envtl. Mgmt. v. United States,

BG BG GE GEAR GI cccncesersvssssececcescsssscscsscsssssssccsssesesi 34

Raygor v. Regents of the Univ. of Minn.,

BO The, Ga ccc cnsnsnsnnnsnnssscssenscensecsecssnssesssssscamenest 37

Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997)......... 44

Rizzo v. Goode, 423 U.S. 362 (1976) .......ccccccccceeerereesereeees 19

Rufo v. Inmates of Suffolk County Jail,

OO TG, BEF Cp ccsccenssnsescnsenscscenssccsssscsecccssssssss0es 21, 30

Ry. Employees v. Wright, 364 U.S. 642 (1961)............0000+8 18

Saahir v. Estelle, 47 F.3d 758 (CA5 1995) .............000cceeeeees 15

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ....... 10

Suter v. Artist M., 503 U.S. 347 (1992)..........ccccccseeeerseeeeees 13

eee

~~ eC Se

TABLE OF AUTHORITIES—Continued

Page

Taylor v. Freeman, 34 F.3d 266 (CA4 1994) .0.............cceeee 22

Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991).............. 45

Tex. Natural Res. Conservation Comm’n v. IT-Davy,

Fs GE icetncnetnicuciensninnnieninisanencssniestenl 44

United States v. Armour & Co., 402 U.S. 673 (1971)........ 36

United States v. ITT Cont’l Baking Co.,

a ee Or icciitiniiarnnnicasianianiniiiittinariininiemsamsmmaaes 17

United States v. Mississippi, 380 U.S. 128 (1965)............. 32

United States v. Swift & Co., 286 U.S. 106 (1932)............ 17

United States Parole Comm’n v. Geraghty,

ee I rcctiicieitatintnrenretarcnigintiiinenniiaiianinanmmnensasnens 14

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,

ee Ce ee Ca tecitrennctcnninenecccnstecsnettzemeensces 12, 13, 22

Washington v. Penwell, 700 F.2d 570 (CA9 1993)............. 26

Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990)...........0..... 14

Will v. Mich. Dep't of State Police,

ee Ce ee eiatnnercancrcrninesaniiibinenicntintiessnevenmmeanasens 11

Wis. Dep't of Corr. v. Schacht, 524 U.S. 381 (1998) .....37, 38

Statutes, Rules, and Constitutional Provisions

1 TEX. ADMIN. CODE §357.1-.29 .0........:cccccccceesseeeseceeeenes 28, 32

a Oe GR cccccccnsccntnntccctensssesseseeecscccteses 28, 32

EE 15

ee I ccctirssnnsinsctuniinndtupnsnenessnitiimcsasel 28, 32

ey Se cerittnnccnenctnnensccnnteniinenssnatinnenensniiins 2

ee CI tencienetntenencnsnesiennensnntiiinessenmesectnsl 2, 15, 28

TABLE OF AUTHORITIES—Continued

| Page

Ga, Be cecncesnscscssenensrenmenennnnmnnnnie 2

GD ae BE cncccercccensnccsssncocsnescssenstcssccrsscemescee 28, 32

ee Se icetecniccnssninicsninintoacininntioninniaee 1, 3, 14, 15

Oe 3

BR 8 Fy eee 31

Tes, GORRIE. GOR Bh, BBG cccnsenscescsccscnsecescsccccssesessssessssenscoensi 46

TE I, TE Ti cecsatinrctentnunininatenimmminciesanmmmnenaiii 25

TE, GOV'T COBB BOGB.GOG ccocococesecescessccsescscccccccscewseceseseees 45

pg fe ee 44

TEX. HEALTH & SAFETY CODE §12.021 ...........ccccccceceeeeeeeees 44

FG: FO passim

Other Authorities

Frank H. Easterbrook, Justice and Contract in

Consent Judgments, 1987 U. CHI. LEGAL F. 19

Donald L. Horowitz, Decreeing Organizational

Change: Judicial Supervision of Public

Institutions, 1983 DUKE L.J. 1265 ..0...........cccceeeeeeees 26, 47

Michael W. McConnell, Why Hold Elections? Using

Consent Decrees to Insulate Policies from

Political Change, 1987 U. CuI LEGAL F. 295

Thomas M. Mengler, Consent Decree Paradigms:

Models Without Meaning, 29 B.C. L. REv. 291

TABLE OF AUTHORITIES—Continued

Robert Nagel, Separation of Powers and the Scope

of Federal Equitable Remedies, 30 STAN. L. REV.

See i beuiinestinecicerttiniasitinetinbtenimiinannasenianetetiiindimibiainmedis 27

THE FEDERALIST, No. 47

(Benjamin F. Wright ed., 1961)..............ssscssesessssessseseeeees 9

Special Joint Meeting of the Texas House of

Representatives Committee on Public Health

and Appropriations Health and Human

Services Subcommittee (audiotape on file with

Texas House of Representatives Media Office)

ERIE ISITE sis TI

RESPONDENTS’ BRIEF

In Ex parte Young, the Court crafted a narrow

exception to the States’ Eleventh Amendment immunity

that allows prospective injunctive suits against state

officers to remedy ongoing violations of federal law. This

case requires the Court to decide whether the limitations

of Ex parte Young apply when a court is enforcing a

consent decree, or whether a federal court in equity may

order relief against States that exceeds any requirement of

federal law.

Additionally, in the eleventh hour, Petitioner Frew has

added a new allegation that the state officials’ decision to

settle the case by consent decree waived the protections of

the Eleventh Amendment. Therefore, the Court may also

choose to decide whether settling an Ex parte Young suit

through a consent decree—after the State has been

dismissed on Eleventh Amendment grounds—constitutes a

clear and unequivocal waiver of Eleventh Amendment

immunity.

STATEMENT OF THE CASE

This case involves a district court’s long endeavor to

oversee Texas state officials’ administration of a cooperative

federal-state Medicaid program aimed at the health care of

indigent youth. In 1993, Petitioners’ filed this class-action

lawsuit seeking prospective relief under 42 U.S.C. §1983

against two state agencies—the Texas Health and Human

Services Commission and the Texas Department of Health

1. Petitioners are the named plaintiffs. Pet’r Br. ii. Because Linda

Frew is the lead Petitioner, Respondents reference Petitioners

collectively as “Frew.” See 2.R.652.

——

ioe)

—and officials of those agencies. 1.R.1.’ The suit was filed

in the Eastern District of Texas, before Judge William

Wayne Justice. Frew claimed that Texas’s “early and

periodic screening, diagnostic, and treatment services”

(EPSDT) program did not “assure” that class members

received screening services—nor treatment services for

problems discovered through screening—and that it did

not “effectively inform” class members about the

availability of program services. Pet. App. 6a-7a; 1.R.1;

3.R.821-22; 1.R.16-17.

The federal requirements for the States’ EPSDT

programs are limited to three categories of services: (1)

informing eligible recipients of the services available; (2)

providing screening services when they are requested; and

(3) arranging for corrective treatment of needs disclosed

through screening services. See 42 U.S.C. §§1396a(a)(43),

1396a(r). Participating States are required to develop a

plan for administering an EPSDT program and to submit

it to the Secretary of Health and Human Services, who

must approve it if it satisfies the statutory conditions. See

id. §1396a(b).

In November 1993, the state agency defendants

moved to dismiss on Eleventh Amendment grounds.

1.R.42. Frew’s response acknowledged the State’s refusal

to waive immunity: “Defendants object to suit against

them in federal court and assert the protection from

federal litigation that the eleventh amendment provides to

them. Given Defendants’ refusal to consent, Plaintiffs do

not object to the dismissal of the two state agencies from

this case.” 1.R.215.

2. References to the court of appeals’s record are cited as “__.R._.,”

with the first numeral representing the volume of the record and the

second numeral indicating the page. “__.SR.__” references are to the

supplemental record.

ae - OC

In June 1994, before ruling on the state agencies’

motion to dismiss, the district court certified a class of

Texas Medicaid recipients under the age of twenty-one,

estimating that the class included over 1.5 million Texas

youth. Pet. App. 7a & n.6, 54a; 2.R.668. Two months later,

the district court granted the state agencies’ motion and

dismissed them from the lawsuit based on the State’s

Eleventh Amendment immunity. 3.R.818-20.

The district court refused, however, to dismiss Frew’s

claims against the state officials and denied their motion

to dismiss, in which they had argued that class members

lacked the necessary federal rights to make their claims

actionable under 42 U.S.C. §1983. 3.R.807; 1.R.42;

2.R.446.

Soon thereafter, the parties began settlement

negotiations and developed a consent-decree proposal. Pet.

App. 7a & n.7; 3.R.875, 1013; 4.R.1028. The proposed

decree was filed with the district court in July 1995.

4.R.1028. The decree describes itself as an “attempt by the

parties to resolve many of the issues in this litigation

amicably, in the best interests of the class and without the

need for the Court’s intervention.” Lodging 7301.° After a

fairness hearing in December 1995, the district court

entered the consent decree. 3.R.993; Pet. App. 7a;

4.R.1028; see also FED. R. Civ. P. 23(e). The decree is a

lengthy document, entailing 308 paragraphs of detailed

and specific procedures for Texas’s EPSDT prograin. Pet.

App. 7a-8a & n.9. Almost one half of the document is

devoted to the program’s outreach and informing efforts.

See id., at 1710-142. The decree’s requirements range from

“effectively inform[ing]” recipients about the program, id.,

3. Frew has lodged the consent decree with the Court. See Pet. 1.

References to the consent decree are cited as “Lodging {___,” with the

numeral indicating the relevant paragraph number of the consent

decree.

at 9911, 52, to providing regular data reports to Frew, id.,

at 9286, to offering toll-free telephone assistance that will

be answered “promptly” by “knowledgeable, helpful, and

polite” individuals, id., at 1247.

Texas made dramatic improvements in its program.

For instance, the number of workers assigned to the

program increased from about ten in 1993 to almost 500 in

2000. Pet. App. 3a. The program also made particular

progress in the area of outreach. See Pet. App. 3a; see also

Pet. App. 69a n.17. The number of outreach contacts

increased from two million in 1995 to 4.8 million in 1999.

5.SR.880. And the state officials entered into a $7.6 million

contract for an outside group to provide outreach

services—the largest EPSDT contract for outreach

services in the United States. See Pet. App. 70a-71a n.19.

In addition to the substantial improvements in

outreach efforts, there were significant improvements in

the two required “participation ratios,” federal-

government measures of the percentage of eligible

recipients who have at least one annual screening visit.

Pet. App. 3a (explaining that the “participation ratio”

increased from eighteen percent in 1991 to sixty-six

percent in 1998). Utilization of dental services increased in

Texas from 1996 to 1998 while, at the same time, the

national average declined. Pet. App. 3a. And, the medical

transportation budget increased by 300%. 5.SR.883. In

1993, about 750,000 medical transportation rides were

provided, while in 1999 there were 2.5 million rides.

5.SR.884. The success of Texas’s EPSDT program is best

reflected by the fact that there was no evidence that any

eligible individual requesting medical or dental services

was denied those services. See Pet. App. 4a, 33a, 101a-02a

& n.51; 11.R.3668.

Despite these tremendous advances, Frew filed a

motion to enforce the consent decree in November 1998,

contending that state officials had not complied with her

interpretation of the decree. See Pet. App. 4a, 9a-10a;

5.R.1697. The state officials responded that they had

_— ee ee

complied with the consent decree. The district court

conducted an enforcement hearing in March 2000, 1.SR-

6.SR, and, five months later, issued a 175-page decision

agreeing with Frew. Pet. App. 54a. The district court

rejected the state officials’ contentions that the decree was

largely unenforceable due to an absence of federal rights,

that the State’s sovereign immunity precluded the district

court from enforcing the decree beyond the requirements

of federal law, and that Frew’s extraordinarily expansive

interpretation of the decree’s provisions was not supported

by its text. 11.R.3628; Pet. App. 10a, 54a-275a.‘

State officials appealed the order, which the Fifth

Circuit stayed during the pendency of the appeal. Pet.

App. lla.’ The Fifth Circuit vacated the district court’s

order and remanded the case. Pet. App. 46a. Recognizing

the Eleventh Amendment’s restriction on the district

court’s jurisdiction, the court of appeals held that the Ex

parte Young doctrine permitted the district court to enforce

the consent decree only to the extent of federal-law

violations. Pet. App. 19a-28a. To determine whether Frew

alleged decree violations to which the Young exception

4. The district court did not direct that any particular class

members receive medical services; rather, it embarked on a process of

retooling the entire EPSDT program. See, e.g., Pet. App. 196a n.136

(suggesting detailed oversight of the promptness with which the

program’s toll-free information lines are answered). As the court of

appeals remarked, the district court “has become overseer of the State’s

Medicaid plan.” Pet. App. 29a.

5. Notwithstanding the pending appeal and the stay, Frew

successfully sought leave in the district court to file a supplemental

complaint adding new claims regarding dental services. Pet. App. lla.

The district court denied the state officials’ motion to dismiss the

— ——_ on the basis that the decree-enforcement

appeal divested district court of jurisdiction to grant the motion to

supplement. After state officials filed a second appeal from that ruling,

the Fifth Circuit consolidated the two appeals. Jd.

applied, the court of appeals considered whether Frew's

allegations of decree violations implicated federal rights

that the district court could enforce. Pet. App. 13a-19a,

33a-39a. The Fifth Circuit held that no enforceable rights

were the subject of the district court’s decision. Pet. App.

12a. The Fifth Circuit explained that “‘in enforcing the

consent decree,’” the district court had erred by regarding

itself as “ ‘bound solely by [the decree’s] language,’” and by

therefore concluding “that ‘an interpretation of the decree

must be based strictly on the language of the decree and

not on the legal requirements of the Medicaid Act.’” Pet.

App. 14a (quoting Pet. App. 71a) (emphasis added); see

also id., at 33a.

Because the district court decided that the consent

decree, but not federal law, had been violated, the court of

appeals concluded that the district court’s invocation of ‘its

enforcement authority was not predicated on ongoing

violations of federal law. Accordingly, it held that Young

did not permit enforcement.*

SUMMARY OF THE ARGUMENT

Our Federalism respects the fundamental sovereignty

of the States and precludes federal-court jurisdiction over

the States absent clear and unambiguous consent. The Ex

parte Young fiction—which deems injunctive suits against

state officers not to be against the State—is a narrow

exception to the Eleventh Amendment’s constraints on

6. The Fifth Circuit did not reach the alternative grounds raised

on appeal challenging the district court's construction of the consent

decree. The state officials contended that the district court's

enforcement of the decree should be reversed because it modified the

decree’s terms and held the state officials to requirements not reflected

in the decree and never agreed to by the parties. The state officials

maintained that under a proper reading of the decree,

established rules of construction, there would be no basis to find

violations.

I -

federal judicial power. Justified by the Supremacy Clause,

Ex parte Young affords federal jurisdiction only for the

limited purpose of remedying ongoing violations of federal

law.

In this case, the federal district court, which has been

supervising the Texas youth Medicaid program since 1996

pursuant to a consent decree, ordered a plan of relief that

would extend far beyond anything required by federal law.

Authority for such broad relief, Frew urges, can be found

in the general equitable powers of a district court to

administer a consent decree, powers that have been

elaborated upon by this Court in the context of civil rights

suits against local municipalities.

A suit against a State is different. General equitable

powers of a federal court do not trump the Eleventh

Amendment. Rather, this suit has proceeded only under

the Ex parte Young fiction, and the federal court has no

jurisdiction under that doctrine beyond remedying ongoing

violations of federal law. If federal law does not require it,

a federal court may not order it.

The fact that state officials agreed to a consent decree

does not alter those constraints. Absent an ongoing

violation of federal law, the fundamental predicate for the

Ex parte Young fiction is eliminated, and jurisdiction is

lacking.

Were it otherwise, the Young fiction itself could be

jeopardized by the serious structural constitutional

infirmities that would result. As a basic tenet of state and

federal separation of powers, one administration may not

bind the next, one officeholder may not bargain away the

constitutional authority of his or her successor. As a

concomitant tenet of federalism, federal courts should not

be administering and prescribing the day-to-day

operations of state programs and agencies. To conclude

that a state official, by agreeing to a consent decree, can

endow a federal court with perpetual jurisdiction to direct

the operation of state programs—irrespective of the

requirements of federal law—and can divest future state

legislatures and executives of budget and policymaking

authority over those programs, would run afoul of both

federalism and separation of powers.

Limiting government by consent decree is not, as

Frew suggests, detrimental to the interests of States.

Settlements will still occur, by private agreements and by

consent decrees consistent with federal law, without

federal courts needing to be empowered to subject States

to equitable remedies unmoored from the dictates of

federal law. And, since the outer boundary of what a

plaintiff could achieve litigating an Ex parte Young case to

full victory on the merits is delimited already by the

mandates of federal law, it would be untenable to say that

plaintiffs must be able to get more than they could from

full victory at trial in order to have an incentive to settle.

Nor is Frews newest argument—that joining the

consent decree waived Eleventh Amendment immunity

altogether and rendered Ex parte Young irrelevant—

consistent with this Court’s jurisprudence. At the outset of

this lawsuit, the State of Texas was a party. Texas moved

to dismiss based on Eleventh Amendment immunity, and

that motion was granted. All that remained was the Ex

parte Young suit against the state officials, which

proceeded to this day.

Texas law makes clear that only the Texas Legislature

can waive the State’s sovereign immunity. Given that the

State had already prevailed on Eleventh Amendment

grounds, it renders the Ex parte Young fiction a farce to

claim that the remaining state officials—lacking any state

authority to do so—could undo that dismissal.

Moreover, even if the Texas Attorney General were

empowered to waive sovereign immunity, nothing he did

constituted the clear and unambiguous statement that

this Court requires for waivers of Eleventh Amendment

immunity. And nowhere in the consent ‘ecree is there a

provision purporting to waive such immunity.

The Court’s recent Lapides decision is not to the

contrary. Lapides v. Bd. of Regents of the Univ. Sys. of Ga.,

535 U.S. 613 (2002). Lapides is limited to the narrow

question of removal of a state-law claim, for “which the

State has explicitly waived immunity from state-court

proceedings.” Jd., at 617. At issue here instead are federal-

law claims for which the Texas Legislature has not waived

sovereign immunity. And in Lapides the Court deemed the

State’s removal of the case to federal court to be invoking

the jurisdiction of that court; here, in contrast the State

was haled into federal court as a defendant, and the state

officials entered the decree in an attempt to avoid a federal

court adjudication and end the litigation. Moreover, in Lapides,

the Court reaffirmed its insistence that any waiver of sovereign

immunity be both clear and voluntary. Id., at 620.

In splitting the atom of sovereignty, the Framers

never envisioned that the federal government would seize

the mantle of directly running state agencies. Madison,

and Montesquieu before him, did foresee the risk that

judges might assume “‘legislative and executive powers

... united in the same person,’” THE FEDERALIST, No. 47,”

and the Constitution guards against that peril. Together,

federalism and separation of powers ensure that federal

courts cannot do what the district court has attempted—to

use a consent decree to take over a state program and

dictate its daily operation, freed in equity from the

constraints of federal law.

ARGUMENT

I. THE EX PARTE YOUNG EXCEPTION TO THE ELEVENTH

AMENDMENT DOES NOT PERMIT ENFORCEMENT OF

CONSENT-DECREE PROVISIONS THAT EXCEED THE

REQUIREMENTS OF FEDERAL LAW.

a The Eleventh Amendment constrains a federal court’s

jurisdiction over a suit against an unconsenting State, and

7. THE FEDERALIST No. 47, at 338 (James Madison) (Benjamin F.

Wright ed., 1961) (quoting Montesquieu).

the existence of a consent decree does not remove that

constitutional limitation on a federal court’s equitable

powers. The exception to the Eleventh Amendment

afforded by Ex parte Young permits federal courts to

remedy state officials’ alleged violations of federal law, but

it does not empower courts to impose obligations on States

in excess of what federal law requires. Absent an ongoing

violation of federal law, a federal court lacks authority to

regulate state officials’ conduct, and both federalism and

separation-of-powers principles preclude the free-ranging

enforcement power Frew advocates.

A. The Ex parte Young Doctrine Is a Limited

Exception to the Sovereign States’ Eleventh

Amendment Immunity from Suit.

Although the Constitution establishes a national

government, it also specifically recognizes the States as

sovereigns in their own right. See Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 71 (1996). The Constitution assumes

the States’ “continued existence and active participation in

the fundamental processes of governance,” and, through

the grant of only limited and enumerated powers to the

branches of the national government, “underscores[s] the

vital role reserved to the States by constitutional design.”

Alden v. Maine, 527 U.S. 706, 714 (1999).

A fundamental aspect of state sovereignty is

immunity from suits by individuals absent the State's

express and unequivocal consent. See, e.g., id., at 712-14;

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 681-82 (1999). This residuary

and inviolable attribute of sovereignty includes a specific

immunity from suit in federal court that is confirmed by

the Eleventh Amendment. U.S. CONST. amend. XI

(withholding the “judicial power” of the federal courts from

“any suit in law or equity ... against one of the United

States by Citizens of another State”); see also Hans uv.

Louisiana, 134 U.S. 1 (1890).

Certain limited circumstances exist, however, under

which federal courts may exercise jurisdiction over suits

alleging that state officials are committing ongoing

violations of federal law. Although such official-capacity

suits are typically deemed suits against the State barred

by the Eleventh Amendment, the Court recognized an

exception to this rule in Ex parte Young, 209 U.S. 123

( 1908), which permits official-capacity suits against state

officials to proceed when the suit seeks prospective

injunctive or declaratory relief from an ongoing violation

of federal law. See Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 & n.10 (1989); Kentucky v. Graham, 473 U.S.

159, 166, 167 n.14, 169 n.18 (1985); Pennhurst State Hosp.

v. Halderman, 465 U.S. 89, 99, 114 n.25 (1984); Young, 209

U.S., at 158-60.

Young’s exception rests on the notion that state

officials’ acts in contravention of federal law are ultra vires

and, therefore, not attributable to the State. 209 U.S., at

159-60. By creating the “fiction” that such suits are not

brought against the State and, consequently, do not

implicate the Eleventh Amendment, Young reconciles state

sovereignty with federal-law principles enforceable against

the States through the Supremacy Clause. See, e.g., Green

a 474 U.S. 64, 68 (1985); Pennhurst, 465 U.S., at

The justification for Young’s exception to the Eleventh

Amendment, however, exists only when a plaintiff suing

the State alleges ongoing violations of federal law. See

Green, 474 U.S., at 68. Absent this predicate, the state

officials’ acts are not ultra vires, and an official-capacity

8. The Court originally limited the Young exception to suits

alleging violations of federal constitutional rights, 209 U.S., at 159-60,

but later extended it to encompass suits alleging violations of federal

statutory law as well. See Pennhurst, 465 U.S., at 105-06.

suit remains a suit against the State that is barred by the

Eleventh Amendment. See Kentucky, 473 U.S., at 169.

B. The Material Jurisdictional Inquiry for

Enforcement of a Consent Decree Is

Whether the Motion to Enforce—Not the

Underlying Complaint—Identifies an Ongoing

Violation of Federal Law.

Frew and the United States erroneously contend that

Frew’s 1993 complaint in the underlying lawsuit provides

jurisdiction for the district court to enforce the consent

decree because the complaint initially alleged violations of

federal law (i.e., the Medicaid Act). See Pet’r Br., at 34-37,

43; U.S. Br., at 22-23. An enforcement action, however, “is

more than just a continuation or renewal of the [original]

suit, and hence requires its own basis for jurisdiction.”

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 378

(1994). Accordingly, the material inquiry is whether the

motion to enforce provisions of the decree alleges

violations of federal law, not whether Frew’s underlying

complaint properly invoked Young jurisdiction at the time

the suit was filed. See id., at 380-81 (evaluating the

trial court’s “ancillary jurisdiction” by considering the

dismissal order and parties’ settlement agreement, not the

underlying complaint); cf., e.g., Missouri v. Jenkins, 515

U.S. 70 (1995).

Nor, contrary to Frew’s and the United States's

assertions, does Verizon Maryland, Inc. v. Public Service

Commission of Maryland, 535 U.S. 635, 649 (2002),

suggest that Frew’s 1993 complaint created jurisdiction for

the district court to enforce the decree. Pet’r Br., at 36;

U.S. Br., at 22-23. Verizon did not involve a consent decree

or a settlement agreement. Rather, the Court analyzed

whether a federal court could entertain a suit for

injunctive relief against state utility commissioners

who the plaintiffs alleged were violating federal

telecommunications law. 535 U.S., at 638. Because the

issue was whether the suit could proceed in the first

instance, the Court understandably examined the

allegations in the complaint. Jd., at 646. In a suit involving

enforcement of a consent decree, by contrast, the issue is

not the court’s jurisdiction at the time the underlying suit

was filed, but its ability to enforce provisions of the decree —

that resolved the suit. Thus, the motion to enforce, not the

complaint, provides the benchmark against which

jurisdiction must be measured.’

Frew and the United States also place substantial

reliance on Gunter v. Atlantic Coast Line Railroad, 200

U.S. 273 (1906), for the proposition that “the Eleventh

Amendment has no application to an ancillary proceeding

to enforce a judgment against a State, as long as the Court

legitimately acquired jurisdiction over the State in the

original proceeding. ...” U.S. Br., at 7; see also Pet’r Br.,

at 33. But Gunter was a case that was fully adjudicated on

the merits. 200 U.S., at 278-79. The trial court found and

enjoined an ongoing violation of federal law, and, years

later, this Court ruled that the trial court retained

jurisdiction to prevent that violation of federal law. Id., at

292. Thus, contrary to Frew’s and the United States’s

argument, Gunter is entirely consistent with the State’s

argument that federal jurisdiction exists only to prevent

ongoing violations of federal law.

As with any other jurisdictional constraint, the

Eleventh Amendment’s limitation of a federal court’s

9. Frew misplaces reliance on Suter v. Artist M., 503 U.S. 347

(1992), in suggesting that the Court determines jurisdiction over

consent decrees by reference to allegations in the complaint. See Pet’r

Br., at 37. Suter is inapposite. It did not consider or discuss Eleventh

Amendment immunity. It did not speak one word about the proper

source of jurisdiction for consent decrees, in the complaint or otherwise.

Indeed, Suter did not even involve a consent decree, and the only

mention of one was in a single footnote, which noted in reference to a

consent decree in another case that “[that] consent decree has no

bearing on the issue the Court decides today.” Suter, 503 U.S., at 354

n.6.

equitable powers endures throughout a federal-court

action. Cf., e.g., United States Parole Comm’n v. Geraghty,

445 U.S. 388, 397 (1980) (observing, in the context of

mootness, the requirement that jurisdiction must exist at

all stages of a case). The mere filing of a complaint that

includes Young allegations does not perpetuate federal

jurisdiction for all time and all purposes. Instead, when

plaintiffs ask a federal court to impose obligations on state

officials—here through Frew’s motion to enforce the

consent decree—a federal court must determine whether

the specific request implicates an ongoing violation of

federal law. If not, Young does not provide jurisdiction for

an enforcement action.”

10. Although one of the questions presented, as framed by Frew,

asks whether decree enforcement depends on a “violation of a federal

right remediable under §1983,” Pet’r Br., at i, Frew does not identify a

single decree provision for which the court of appeals found an ongoing

violation of federal law but denied enforcement because a federal

“right” was lacking. In fact, the court of appeals examined whether

Frew’s enforcement action alleged violations of federal law; and,

because it did not, the court determined that Young jurisdiction was

lacking. See Pet. App. 28a-39a. :

The material issue is not the enforceability of violations of federal

law as opposed to violations of federal rights, as the AARP amici

erroneously suggest, see AARP Br., at 24, but whether 4 court may

order broad equitable remedies unconnected to an ongoing violation of

federal law. Although the Fifth Circuit referenced established

standards for determining if a federal statute confers a “federal right,”

those standards merely ensure the existence of a “binding obligation

intended to benefit the plaintiff. See Wilder v. Va. Hosp. Ass’n, 496 U.S.

498, 510-11 (1990); see also Blessing v. Freestone, 520 US. 329, 340-41

(1997). As such, federal-rights analysis mirrors traditional standing

requirements applicable in any suit. Compare Gonzaga Univ. v. Doe,

536 U.S. 273, 283 (2002) (quoting 42 U.S.C. §1983) (rejecting the notion

that a federal right exists when a plaintiff “falls within the general zone

of interest that the statute is intended to protect” because “broad[ ] or

vaguel } ‘benefits’ or ‘interests’” are not enforceable federal rights), with

Arizonans for Official English v. Arizona, 520 US. 43, 64 (1997)

(explaining that a party establishes standing by showing “an invasion

— —- -

oe ee ew

Because EPSDT programs are creatures of both state

and federal law, an alleged violation of a program

provision may, or may not, constitute a violation of federal

law. All aspects of the EPSDT program not required by

federal law are matters of state law and state policy—left

to the State’s discretion in formulating its plan for

submission to the Secretary of Health and Human

Services. See 42 U.S.C. §1396a(a) & (b); see also, e.g.,

Alexander v. Choate, 469 U.S. 287, 307 (1985) (noting “the

States’ longstanding discretion to choose the proper mix of

amount, scope, and duration limitations on services

covered by state Medicaid”). Accordingly, Frew’s attempt

to enforce consent-decree provisions not required by

federal law would require a federal court to second-guess

state decisions effected through state statutes,

regulations, and executive policies. Because the Eleventh

Amendment precludes such use of federal judicial power,

see Pennhurst, 465 U.S., at 106, the Fifth Circuit correctly

held that the district court lacked jurisdiction to entertain

Frew’s enforcement claims."

of a legally protected interest that is concrete and particularized and

actual and imminent”). Moreover, federal-right and Young analyses

overlap to the extent both focus on the dictates of federal law. Just as 42

U.S.C. §1983 “provides a remedy only for the deprivation of ‘rights,

privileges, or immunities secured by the Constitution and laws’ of the

United States,” Gonzaga, 536 U.S., at 283 (quoting 42 U.S.C. §1983),

Young permits a federal court to exercise jurisdiction only to remedy

federal-law violations, Green, 474 U.S., at 68. The Fifth Circuit never

indicated, however, that there were any provisions of the decree

required by federal law that could not be enforced because they did not

additionally implicate federal “rights.”

11. Frew’s amici also attack the court of appeals’s judgment by

challenging Fifth Circuit precedent distinguishing a district court’s

power to enter a decree from its power to enforce a decree. See U.S. Br.,

at 8, 22; AARP Br., at 13 (criticizing Lelsz v. Kavanagh, 807 F.2d 1243

(CA5 1987), and Saahir v. Estelle, 47 F.3d 758 (CA5 1995)), which

distinguished the decree-entry standards suggested in Local No. 93,

International Association of Firefighters v. City of Cleveland, 478 U.S.

C. A Consent Decree Does Not Expand the

Young Exception to Eleventh Amendment

Immunity.

Although a federal court has inherent equitable power

to issue injunctive relief and “to manage its proceedings,

vindicate its authority, and effectuate its decrees,

Kokkonen, 511 US., at 380-81, that power does not

supersede the constitutional constraints on jurisdiction

imposed by the Eleventh Amendment. Therefore, the

Court should reject Frew’s attempt to transform a courts

equitable powers into a license to enforce all consent-

decree provisions against a State—even when those

provisions impose obligations that exceed federal-law

requirements and, consequently, lie beyond a federal

court’s limited jurisdiction under Ex parte Young. Cf. Gen.

Bldg. Contractors Ass’n v. Pennsylvania, 458 US. 375,

398-99 (1982) (recognizing that “fundamental limitations

on the remedial powers of federal courts” permit the

exercise of such powers “only on the basis of a violation of

1 (1986), from enforcement standards in a Young suit). In this case,

aaa the court of appeals did not rely on any distinction between

entry and enforcement power. Rather, the court focused on the extent to

which the Eleventh Amendment constrains efforts to enforce a decree

against state officials through a Young suit. Thus, this Court need not

decide whether different standards govern entry and enforcement of

consent decrees—either in general or in the context of a suit against a

State—because Frews suit implicates only the constitutional

limitations on a federal court’s enforcement power when a plaintiff

seeks to impose obligations on a State that exceed requirements under

federal law. : .

. For this reason, the United States’s reliance on Kokkone n's

ouutinn of enforcing preexisting court orders, U.S. Br., at 16 (citing

Kokkonen, 511 U:S., at 381), is unpersuasive; Kokkonen was considering

ancillary jurisdiction over court orders generally, not injunctive orders

addressed to sovereign States, for which jurisdiction depends on

continued compliance with Ex parte Young.

the law” with remedies that “extend no farther than

required by the nature and the extent of that violation”).

Frew erroneously proposes that litigants’ agreement

to a settlement by court order obviates the need for further

consideration of Eleventh Amendment constraints on an

enforcement action against a State, provided that: (1) the

underlying settlement resolves a dispute over which the

court initially had subject-matter jurisdiction; (2) the

enforcement action requests relief in the “general scope” of

the original allegations; and (3) enforcement promotes the

“objectives” of the federal law on which the underlying suit

was based. See Pet’r Br., at 42-43. Such loose criteria

ignore the narrow justification for the Young fiction, which

creates an exception to the Eleventh Amendment for the

sole purpose of vindicating supreme federal law. See supra

Part LA.

By making the terms of the parties’ settlement

agreement dispositive of the court’s jurisdiction, Frew’s

contract rationale is not susceptible to objective

limitations. Cf. Jenkins, 515 U.S., at 98-99 (noting the

district court’s limitless authority and “numerous policy

choices” when it moved beyond curing constitutional

violations). The Court should reject Frew’s proposed

approach because a federal court is “more than a recorder

of contracts from whom parties can purchase injunctions.”

Firefighters, 478 U.S., at 525 (citation and quotation

omitted). Although a consent decree has some attributes of

a contract, see, e.g., United States v. ITT Cont'l Baking Co.,

420 U.S. 223, 236 n.10 (1975), it is nonetheless a judgment

predicated on the Article III power of the federal court.

See, e.g., Pope v. United States, 323 U.S. 1, 12 (1944);

United States v. Swift & Co., 286 U.S. 106, 115 (1932).

And, when a decree settles a Young suit against state

officials, the federal court’s Article III power—and,

necessarily, its enforcement power—cannot exceed the

jurisdictional constraints of the Eleventh Amendment or

the limited exception to state immunity that Young

affords.

Frew’s contract-based enforcement theory also ignores

that a federal court’s power to adopt a consent decree does

not derive from the parties’ consent but “comes only from

the statute which the decree is intended to enforce.” Ry.

Employees v. Wright, 364 U.S. 642, 651 (1961). In Wright,

for example, employees sued under a provision of the

Railway Labor Act prohibiting discrimination against

non-union workers, and the suit resulted in a consent

decree forbidding such discrimination. When Congress

subsequently amended the Act to permit union shops, a

union moved to modify the decree to reflect the change in

federal law. Although lower courts reasoned that the

agreement was enforceable because non-union shops

remained legal, the Court held that failure to modify the

decree “would be to render protection in no way authorized

by the needs of safeguarding statutory rights.” Id., at 648.

The parties’ agreement to the decree did not suffice

because “it was the Railway Labor Act, and only

incidentally the parties, that the District Court served in

entering the consent decree now before us. . . . The parties

have no power to require of the court continuing

enforcement of rights the statute no longer gives.” Id., at

651-52; see also Firefighters Local Union No. 1784 v.

Stotts, 467 U.S. 561, 576 n.9 (1984).

Frew’s theory that a federal court should have

enforcement jurisdiction to prevent state officials from

breaking a contractual commitment depends on an

unsupportable contractual theory of federal judicial

power.” A district court’s authority to modify a decree

13. Frew also hints at some type of estoppel theory but has never

identified, much less satisfied, the elements of estoppel, which include

affirmative misconduct and detrimental reliance. See, e.g., Heckler v.

Cmty. Health Servs. of Crawford County, 467 U.S. 51, 67 (1984); City of

San Angelo v. Deutsch, 91 S.W.2d 308, 309 (Tex. 1936). Moreover,

estoppel arguments do not apply to sovereign States. See Office of Pers.

Mgmt. v. Richmond, 496 U.S. 414, 419 (1990) (noting “[fjrom our

earliest cases, we have recognized that equitable estoppel will not lie

— 4 —_

“cannot be resolved solely by reference to the terms of the

decree and notions of equity.” Jd. Moreover, enforcement of

a decree entered in a Young suit should not be undertaken

lightly because it entangles an arm of the national

government in another sovereign’s governance by

requiring continuing supervision by a federal court. See

infra Part I.D; cf. Jenkins, 515 U.S., at 98 (noting the

“federalism concerns that are implicated when a federal

court issues a remedial order against a State”); Rizzo v.

Goode, 423 U.S. 362, 379-80 (1976) (same). The affront is

most severe when enforcement actions coerce state

officials into assuming obligations not required by federal

law, as such obligations interfere with a State’s authority

to “order the processes of its own governance” and offend

4 States’ “inviolable sovereignty.” Alden, 527 U.S., at

against the government”); City of Hutchins v. Prasifka, 450 S.W.

835 (Tex. 1970). —

14. Frew contends that the district court should have the power to

enforce the decree provisions at issue to preserve the federal courts’

“integrity.” Pet'r Br., at 16. But when no constitutional or federal

statutory violation is alleged, judicial integrity is not impugned. Nor, as

Frew’s amici erroneously contend, do alleged violations of a decree

equate with violations of “federal law” when the terms of the decree are

not required by federal law. If that view prevailed, a federal court could

invest itself with unlimited jurisdiction simply by entering a broad

decree, rendering irrelevant the dictates of federal constitutional and

statutory law as well as Young’s constraints on federal-court

jurisdiction over a sovereign State.

Moreover, while the Court has utilized Young to enforce the federal

_ Constitution, see 209 U.S., at 159-60, and federal statutory law, see

Pennhurst, 465 U.S., at 105-06, Young has not served as a vehicle for

vindicating court orders generally, and the Court should decline Frew’s

invitation to expand Young to permit enforcement of consent decrees

against States that do not implicate violations of federal law. Federal

decrees were never conceived as permanent displacements of state and

local administration of programs. See, e.g., Bd. of Educ. of Okla. City

Pub. Sch. v. Dowell, 498 U.S. 237, 247 (1991) (“[Flederal supervision of

Finally, Firefighters v. City of Cleveland, on which

Frew relies heavily, does not support her contract-based

theory of enforcement or the district court’s exercise of

enforcement powers in this case.” Critically, suit in

Firefighters was brought against a city, not a State. Thus,

Firefighters was not a Young suit seeking entry, much less

enforcement, of a consent decree imposing obligations on a

State in excess of federal law.” Accordingly, the Court had

no occasion to consider the permissible parameters of an

enforcement action in a Young suit. Instead, Firefighters

was a statutory-construction case that addressed whether

a consent decree in a Title VII suit against a city was an

“order of the court” that, under that statute’s terms, could

not provide relief for individuals who were not the actual

victims of a defendant’s discriminatory practices. 478 U.S.,

at 514 & n.5, 515. The Court reasoned that the decree did

not fall under Title VII's statutory prohibition because

Congress did not intend to restrict employers from

local school systems was intended as a temporary measure to remedy

past discrimination”). Instead, the overarching goal of a federal decree

should be the “eventual restoration” of state control. Jenkins, 515 U.S.,

at 88. Limiting enforcement actions to violations of federal law ensures

that federal courts will not retain unwarranted control of state

programs that should be administered instead by state officials.

15. To decide that it had jurisdiction to enforce the decree

violations it identified, the district court first concluded that its original

entry of the decree was proper under Firefighters, Pet. App., at 247a,

then reasoned that, because entry was proper, broad enforcement

powers necessarily followed. Pet. App., at 260a.

16. Because Firefighters did not involve an enforcement action, or

a suit against a State, the Court's statement in dicta that “a federal

court is not necessarily barred from entering a consent decree merely

because the decree provides broader relief than the Court could have

awarded after a trial,” Firefighters, 478 U.S., at 525 (emphasis added),

is of little service to Frew, who seeks to enforce—against a State—

provisions of a consent decree that exceed federal-law requirements.

—- --2- -—— > —_

entering into voluntary agreements to resolve Title VII

disputes. Id., at 521-24.”

Frew and her amici also misplace reliance on the

Court’s statement in Rufo v. Inmates of Suffolk County

Jail that a court may enter a consent decree in which the

parties undertook “to do more than the Constitution

requires ... but also more than what a court would have

ordered absent the settlement.” 502 U.S. 367, 389 (1992);

see Pet’r Br., at 38. Rufo concerned the proper standard for

modification of consent decrees in institutional reform

litigation—not jurisdiction to enforce such decrees.

Moreover, like Firefighters, Rufo did not address the

limitations imposed by the Eleventh Amendment and the

Ex parte Young doctrine.

In other decisions, the Court has recognized

limitations on federal courts’ remedial authority to enter

consent decrees that result in federal oversight of state

and local governments. In Milliken v. Bradley, for

example, the Court recognized three guiding principles for

a federal court’s exercise of its remedial authority: (1) the

remedy must be defined by the nature and scope of the

federal-law violation; (2) the decree must be remedial in

nature; and (3) the decree “must take into account the

interests of state and local authorities in managing their

17. Although the United States now argues that a “court has

inherent authority to enforce a valid decree,” U.S. Br., at 22, and that a

consent decree that satisfies the Firefighters factors may provide

broader relief than that available in a litigated judgment, U.S. Br., at

14, that position directly contradicts the United States’s position in

Frew’s enforcement attempt, the United States contended in

Firefighters that a district court’s remedial authority to enter a consent

decree extends only as far as necessary to remedy a violation of federal

law and that the Firefighters decree was void because the district court

would have lacked the power to order such a judicial decree had the

matter gone to trial. See U.S. Br., Local No. 93, Intl Ass'n of

Firefighters v. City of Cleveland, 1985 WL 670128, at *22 (Jul. 2, 1986).

own affairs, consistent with the Constitution.” 433 U.S., at

280-81; accord Jenkins, 515 U.S., at 88." In a case like

Frew’s, in which a consent decree against state officials

contains no admission or adjudication of liability under

federal law, the district court’s power should remain

directly tied to alleged federal-law violations to ensure

that the decree is truly remedial in nature and that it

respects the State’s authority to manage its own

governmental affairs. Cf. Taylor v. Freeman, 34 F.3d 266,

269 (CA4 1994) (explaining that far greater judicial

caution is necessary when ordering injunctive relief

against state officers prior to an adjudication on the

merits).

D. Eroding the Federal-Law Basis for Young

Would Raise Federalism and Separation-

of-Powers Concerns.

Extending federal-court jurisdiction beyond the

constraints of Young, and allowing equitable orders

against States to do more than remedy ongoing violations

of federal law, would go a long way toward making “the

Eleventh Amendment, and not Ex parte Young, ... the

legal fiction.” Verizon, 535 U.S., at 649 (Kennedy, J.,

concurring). Indeed, as one Member of the Court has

observed, “[t]wo clear restraints on the use of the equity

power—federalism and the separation of powers—derive

from the very form of our Government. Federal courts

should pause before using their inherent equitable powers

to intrude into the proper sphere of the States.” Jenkins,

515 U.S., at 131 (Thomas, J., concurring).

18. Moreover, the Framers did not intend Article III to imbue

federal courts with the limitless equitable power envisioned by Frew.

See Jenkins, 515 U.S., at 126-27 (Thomas, J., concurring) (concluding,

in reviewing Federalist and Anti-Federalist exchanges about the scope

of Article III equity power, that “the drafters and ratifiers of the

Constitution approved the more limited construction”).

1. The exercise of the federal judicial power

To ensure that the doctrine of sovereign immunity

remains meaningful, Young should not be expanded to

permit a federal court’s enforcement jurisdiction to ignore

the distinct legislative and executive roles assigned by a

State’s constitution, as the district court did in this case.

Cf. Alden, 527 U.S., at 751 (counseling against federal

assertions of authority that blur the “branches of the state

governments, displacing state decisions that go to the

heart of representative government”) (quotation and

citation omitted); see also Jenkins, 515 U.S., at 88.

Moreover, serious separation-of-powers concerns

arise when one state officeholder is empowered through

a federal court to bind his or her successors and to

bargain away their constitutional authority.” As Judge

Easterbrook explained in his plurality opinion for the en

banc Seventh Circuit, consent decrees can be used to

evade political accountability and the allocation of powers

in representative government:

“‘Chicago’ did not reach a settlement with the

plaintiffs. ... Negotiations were conducted on

Chicago’s behalf by its corporation counsel, who

we may suppose acted with the approval of [the

mayor]. Although the decree purports to last for

all time ... democracy does not permit public

officials to bind the polity forever. What one City

Council enacts, another may repeal .... Today's

19. See Michael W. McConnell, Why Hold Elections? Using Consent

Decrees to Insulate Policies from Political Change, 1987 U. Cui. LEGAL F.

295 (1987) (explaining that consent decrees that deny future

officeholders their constitutionally vested policymaking authority

enable officials to sidestep structural limitations on their own

authority).

lawmakers have just as much power to set public

policy as did their predecessors. ‘Chicago’ speaks

through its elected representatives, and the

people are free to upset even the most

enlightened policies of earlier times. . . .

“Governments are in this respect unlike

corporations or other contracting parties. A

corporate board of directors may enter into

commitments that continue after new directors

take office; a legislature may not. True,

governments may form contracts (for example, to

build a new road or repay a loan) and must keep

these commitments by virtue of the contract

clause of the Constitution, Art. I, §10, cl. 1. But

temporary officeholders may not contract away

the basic powers of government to enact laws—or

in this case to adopt budgets—in the same way

natural persons may make enduring promises

about their own future behavior. Why then

should things differ if the parties choose not the

device of a seal (or even of a statute) but the

imprimatur of a district judge?” Evans v. City of

Chicago, 10 F.3d 474, 478 (CA7 1993) (en banc)

(plurality op.) (citations omitted).

Not only would expanding Young beyond federal-law

violations improperly allow one officeholder to bind

the next, it would permit state executive officers

unconstitutional latitude to bind their legislatures. Cf.

Jenkins, 515 U.S., at 131 (Thomas, J., concurring) (“A

structural reform decree eviscerates a State’s discretionary

authority over its own program and budgets and forces

state officials to reallocate state resources and funds at the

expense of other citizens, other government programs, and

other institutions not represented in court.”).

ee ere ee a oo

The Texas Constitution does not extend legislative

powers to executive officials.” See TEx. Const. art. II, §1

(“no person” of one of the “three distinct departments”

“shall exercise any power properly attached to either of

the others”). Yet the district court here sought to enforce

the consent decree—without the justification of any

ongoing violations of federal law—in a manner that

would enshrine in perpetuity an obligation to expend

considerable resources on endeavors not required by

federal law and not tied to the policymaking choices of the

Texas Legislature.”

Respect for the structural limitations on state officials’

authority, and their role in preserving the character of a

republican form of government, is particularly important

when resolving litigation by consent decree. Institutional

reform litigation has been known to foster friendly

adversaries:

“There is commonly also a desire on the part of

some officials to use a decree entered against

them as a weapon in the politica! struggle to

vindicate their view of the appropriate

treatment, rehabilitation, or other policy goal for

the institution. An adverse decree that would

require additional spending is also a weapon

20. Frew suggests that other officials and individual legislators

had the opportunity to approve the decree. Pet’r Br., at 23. The record,

however, does not reflect any such approvals, and, in any event, it is the

Legislature as a whole—through passing legislation—that is the proper

organ of democratic accountability.

21. See, eg., Speciai Joirt Meeting of the Texas House of

Representatives Committee on Public Health and Appropriations

Health and Human Services Subcommittee (Sept. 21, 2000) (audiotape

on file with Texas House of Representatives Media Office) (comment by

Representative Harvey Hilderbran that district court’s order requires

diversion of financial resources from EPSDT program to satisfy data

reporting requirements of decree that go beyond the federal reporting

system).

used by officials to augment their budget....

Whether the defendants’ friendly view of the suit

derives from policy preferences or budgetary

aspirations, the decree becomes a_ shortcut

around political constraints.” Donald L.

Horowitz, Decreeing Organizational Change:

Judicial Supervision of Public Institutions, 1983

DUKE L.J. 1265, 1294 (footnote omitted); see also

Milliken, 433 U.S., at 293 (Powell, J., concurring)

(explaining that parties to a consent decree are

known to have “joined forces apparently for the

purpose of extracting funds from the state

treasury”).

Because consent decrees can be used to evade the

political power of other branches and levels of government,

a federal court must exercise its powers in a way that

respects the federalist structure of the Constitution.”

Otherwise, the federal judicial power would impermissibly

“deprive the legislature of the power of judging what the

honor and safety of the state may require,” which is an

offense to sovereignty “attended with greater evils” than

22. See, e.g., Evans, 10 F.3d, at 479 (plurality op.) (“(Tyhe court

must ensure that... the obligations imposed by the decree rest on this

rule of federal law rather than the bare consent of the officeholder.

When making these inquiries, courts are bound by principles of

federalism (and by the fundamental differences between judicial and

political branches of government) to preserve the maximum leeway for

democratic governance.”); Washington v. Penwell, 700 F.2d 570, 573

(CA9 1993) (setting aside consent decree provision because state

officials lacked authority under Oregon’s Constitution to commit

funding for prison legal services because that was a legislative

decision); Overton v. City of Austin, 748 F.2d 941, 956-57 (CA5 1984)

(affirming district court’s refusal to adopt consent decree in which city

council agreed to change from an at-large to a single-member district

system when state law required a popular vote for such a change,

explaining that parties’ consent did not supply a sufficient basis).

failure to enforce a consent decree no longer required by

federal law. Hans, 134 U.S., at 21.

2. Maintaining Young’s constraints ensures

that federal courts operate within the

bounds of federalism and separation of

powers.

In our federal system, federal courts should not be

making fundamentally legislative and executive decisions

regarding the priorities of a State and its agencies by

compelling program design, allocating the State’s limited

resources, or determining how to deliver public services.

When a federal court does so, “[t]he substitution of

government by the federal judiciary for local self-

government involves dangerous disproportionality”

inconsistent with the distribution of national powers.

Robert Nagel, Separation of Powers and the Scope of

Federal Equitable Remedies, 30 STAN. L. REV. 661, 664

(1978).

These limitations derive not only from federalism, but

also from federal separation-of-powers principles:

“The separation of powers imposes additional

restraints on the judiciary’s exercise of its

remedial powers. To be sure, this is not a case of

one branch of Government encroaching on the

prerogatives of another, but rather of the power

of the Federal Government over the States.

Nonetheless, what the federal courts cannot do at

the federal level they cannot do against the

States; in either case, Article III courts are

constrained by the inherent constitutional

limitations on their powers.” Jenkins, 515 US.,

at 132-33 (Thomas, J., concurring) (emphasis

added); see also id., at 113 (O'Connor, J.,

concurring).

The exercise of. judicial power involves adjudicating

controversies. By contrast, judicial decrees dictating

budgeting, staffing, data collection, recruitment,

administrative oversight, and monitoring involve decidedly

legislative or executive, rather than judicial, powers. It is

the fundamentally political nature of these types of

decisions that distinguishes them from _ judicial

determinations. If federal courts venture into political

decisions that are the purview of state governments, “they

detract from the independence and dignity of the federal

courts and intrude into areas in which they have little

expertise.” Jenkins, 515 U.S., at 133 (Thomas, J.,

concurring).”

That lack of expertise is hardly in doubt. As the court of

appeals correctly noted, federal courts are simply not

equipped to administer an indigent-youth health-services

program.” See Pet. App. 4a. Courts, by their nature, lack

the capabilities of state government to develop and deliver

social services programs. See Jenkins, 515 U.S., at 112

(O’Connor, J., concurring). (“Courts ... are different. The

necessary restrictions on our jurisdiction and authority

contained in Article III of the Constitution limit the

judiciary’s institutional capacity to prescribe palliatives for

23. Indeed, this specter is a far greater threat to the integrity of

the courts, see Pet’r Br., at 16; U.S. Br., at 5, than would be maintaining

the constitution limits on the court’s authority over sovereign States.

24. In fact, Congress’s design for the EPSDT program assumed

— a States and the U.S. Secretary of Health and Human Services

appropriate capacity. Congress requires each icipati

State to develop a Medicaid plan, which must be sh me ge

Secretary prior to implementation. See 42 U.S.C. §1396a(b). In addition,

Congress established remedial mechanisms to address any

shortcomings of States. The Secretary may curtail or limit federal

payments to States that do not substantially comply with federal

Medicaid requirements. See 42 U.S.C. §1396c. Congress also mandated

a hearing procedure for recipients. 42 U.S.C. §1396a(aX3); 42 C.F.R.

§431.200 et seg.; see also 1 TEX. ADMIN. CODE §357.1-.29. Under the

district court’s interpretation, however, a consent decree overseen by a

federal court will be perpetually substituted for Congress’s planned

remedial scheme.

societal ills.”). State governments not only properly bear

the responsibility for such programs, but they are better

able to make the day-to-day policy, program, and funding

choices necessary to deliver social services. See, e.g., id., at

132 (Thomas, J., concurring) (observing that federal courts

“simply cannot gather sufficient information to render an

effective decree, have limited resources to induce

compliance, and cannot seek political and public support

for their remedies.”).

As this Court has noted with respect to federal prison

injunctions, in recent years, federal courts have

“become increasingly enmeshed in the minutiae

of prison operations. Judges, after all, are

human. They, no less than others in our society,

have a natural tendency to believe that their

individual solutions to often intractable problems

are better and more workable than those of the

persons who are actually charged with and

trained in the running of the particular

institution under examination. But under the

Constitution, the first question to be answered is

not whose plan is best, but in what branch of the

Government is lodged the authority to initially

devise the plan.” Bell v. Wolfish, 441 U.S. 520,

562 (1979).

The institutional inability of federal courts to shoulder

such tasks is accompanied by a decided lack of political

accountability, leaving federal courts without the guidance

of the state electorate’s mandate or the State’s fiscal

priorities. Any presumption that federal courts should

make public policy choices, allocate financial resources,

and set effective administrative policy is at odds with the

adjudicatory nature of the judicial power. “There simply

are certain things that courts, in order to remain courts,

cannot and should not do.” Jenkins, 515 U.S., at 132

(Thomas, J., concurring); see also id., at 113 (O’Connor, J.,

concurring) (agreeing with Justice Thomas’s separation-of-

powers concerns).

E. Consent Decrees Will Not Lose Their Utility

in the Absence of the Enforcement Power

Advocated by Frew.

Allowing federal courts to exercise their equitable

powers as broadly as Frew desires would permit federal

courts to escape their ordinary constraints, and, in the

process, may actually reduce the incentives for settlement

by consent decree. See Thomas M. Mengler, Consent

Decree Paradigms: Models Without Meaning, 29 B.C. L.

REV. 291, 336 (1988) (“Any consent decree model that gives

the courts an overly active role will unnecessarily inhibit

parties from settling by consent decree.”). Frew complains

that there would be little value to a decree that is limited

to federal law under Young. Pet’r Br. 42. Yet compliance

with federal law is ostensibly the precise objective of her

lawsuit; accomplishing that end should, at minimum, be a

satisfactory result.

In any event, incentives for consent decrees will

remain even if they are subject to the limitations imposed

by the Constitution. They will remain an exit strategy for

parties wishing to avoid binding or adverse rulings. See,

e.g., Rufo, 502 U.S., at 383 (explaining that easing the

standard for modification of consent decrees would not

deter consent decrees because parties will still prefer to

avoid trial and a potential loss on the merits); see also

Evans, 10 F.3d, at 482 (plurality op.) (“Recognizing that a

substantial federal claim must undergird a consent decree

does not make plaintiffs less willing to settle: the decree

still provides relief, [and] ... [pJlaintiffs’ alternative

remains a trial, at which they might lose everything or

obtain less suitable relief.”).

Frew suggests that maintaining the existing limits on

Ex parte Young suits may ultimately be detrimental to the

interests of the States. See, e.g., Pet’r Br., at 20. The State

- — —

-— o ————

of Texas and the amici States disagree. The States will

retain ample ability to settle litigation without ceding to

federal courts the authority to run state agencies

unrestrained by the limits of federal law.” Moreover, since

the maximum relief plaintiffs could hope for at trial would

be a prospective injunction against ongoing violations of

federal law, Green, 474 U.S., at 68, it would be a perverse

incentive indeed to offer greater relief from settlement

than from full victory on the merits.”

Frew’s real complaint is that limiting the federal

judicial power to remedying violations of federal law may

impose a litigation burden on plaintiffs because they will

have to demonstrate that a decree violation constitutes a

federal-law violation in order to obtain enforcement. Pet’r

Br. 41-42. Such a jurisdictional showing is hardly an

unreasonable prerequisite. And it is certainly no different

from the many jurisdictional disputes parties litigate in

district courts. Moreover, the requirement does not

necessitate a trial on the merits, as Frew claims, Pet’r Br.

41, and in any event, plaintiffs must always demonstrate

violations before a federal court orders compliance. See,

e.g., 1.SR-5.SR (transcript of enforcement hearing).

And any fear that Medicaid recipients will be left

without remedies if federal courts cannot enforce consent

decrees as broadly as Frew hopes is unwarranted. The

United States can ensure the States’ compliance with

25. Of course, parties wishing to escape the strictures of the

Constitution on a federal court’s remedial authority can always settle a

case on their own terms and file a stipulation of dismissal. See FED. R.

Civ. P. 41(a)(1).

26. By analogy, were a plaintiff auto-accident victim to sue a

defendant for $100,000, no one would maintain that the defendant

would need to be able to offer $200,000 in settlement in order to provide

sufficient incentive to settle. Typically, settlements—which eliminate

the risk of an unfavorable adjudication—are for less than full recovery,

not more.

federal Medicaid law in at least two ways. If not satisfied

with a State’s performance of its Medicaid obligations, it

can sue that State. See United States v. Mississippi, 380

U.S. 128, 140-41 (1965). In addition, Congress has charged

the Secretary of Health and Human Services with

monitoring each participating State’s performance of its

Medicaid plan, and extended to the Secretary the power to

enforce program requirements by terminating or limiting

the payment of federal funds. See 42 U.S.C. §1396c. There

is also a state administrative hearing process for

individuals to complain about services. See 42 U.S.C.

§1396a(a)(3); 42 C.F.R. §431.200 et seq.; 1 TEX. ADMIN. CODE

§357.1-.29. The ability of the United States to file suit, of

the Secretary to withhold funds, of claimants to request

state hearings, and of litigants to proceed under Young—

along with the good faith efforts of the States—together

ensure that States will continue to uphold federal law.

Ultimately, the only settlements likely to be seriously

inhibited are those in which state officials choose to

bargain away matters left to the State’s discretion through

its republican form of government, rather than face the

consequences of litigation. Curtailing such settlements is

not regrettable. The constitutional considerations that

preclude the enforcement of the alleged decree violations

at issue in this case far outweigh any possible deterrence

to the frequency of consent decrees. “[{P]reserving

democratic governance, separating the judicial and

political spheres, [and] respecting state autonomy in the

absence of a federal rule” all take priority over any

preference to assign institutional reform of state programs

to federal courts. Evans, 10 F.3d, at 482 (plurality op.).

II. THE STATE DOES NOT CONSENT TO SUIT IN

FEDERAL COURT WHEN STATE OFFICERS AGREE

TO SETTLE AN EX PARTE YOUNG CASE THROUGH A

CONSENT DECREE.

Perhaps fearing that her expansive view of the district

court’s enforcement jurisdiction may not carry the day,

ee ee

Frew asserted for the first time after briefing in the Fifth

Circuit that the State of Texas waived its Eleventh

Amendment immunity through a particular paragraph in

the consent decree. She now advances a different

argument—that the state officials’ decision overall to

settle the case by consent decree waived the protections of

the Eleventh Amendment. See Pet’r Br., at 26. The Court

should not consider these belated arguments. And, if it

does, Frew’s arguments fail for several reasons.

Frew’s contention cannot survive the fact that the

State invoked the protections of the Eleventh Amendment

early in the case and was dismissed on those grounds. In

addition, the state officials’ agreement to a consent decree

in this Ex parte Young suit did not constitute a clear and

voluntary invocation of the federal court’s jurisdiction on

behalf of the State. And the language of the consent

decree, to which the State was not a party, falls far short of

manifesting a clear and unequivocal intent by the State to

waive its Eleventh Amendment immunity. Lastly, no valid

waiver of immunity could have occurred because any

semblance of an implied consent to suit in federal court

was not authorized by Texas law, and a contrary finding

would disregard the constitutional principles supporting

the political accountability of state governments.

A. Frew Defaulted the Argument That the

State of Texas Consented to Suit in

Federal Court.

By never raising the issue of waiver of sovereign

immunity until after briefing of the case was completed in

the court of appeals, Frew waived the issue. She never

argued in the district court that the State had waived its

sovereign immunity and never raised the issue in the

court of appeals until after the close of briefing. It was not

until October 2001 that Frew contended that the State

somehow waived its sovereign immunity. See Appellees’

FED. R. App. P. 28(j) Letter 1 (Oct. 3, 2001) (asserting with

one sentence that 9303 of the consent decree represented

an express waiver of Eleventh Amendment immunity).

And at no point in the courts below did Frew argue that

the state officials’ mere agreement to the consent decree

waived the State’s sovereign immunity, as she contends for

the first time in this Court.

Frew had ample oppor.wmty to advance properly a

waiver argument in the courts below and failed to do so.

As the Fifth Circuit explained, “[wJaiver of Eleventh

Amendment immunity is certainly not a new concept.” Pet.

App. 39a n.95. Just as with other belated arguments, the

courts of appeals have uniformly barred late invocations of

alleged waivers of sovereign immunity like that of Frew,

even under an “intervening-decision” exception. See, e.g.,

In re Hood, 319 F.3d 755, 760 (CA6 2003), pet. for cert.

filed, 71 U.S.L.W. 3724 (U.S. May 2, 2003) (No. 02-1606);

RI. Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 50-

51 (CA1 2002); Power v. Summers, 226 F.3d 815, 819 (CA7

2000). This Court should confirm the propriety of these

decisions and decline to reach the waiver issue.

Consistent application of the waiver rule to waiver-of-

immunity claims enables courts to evaluate the issue with

the benefit of argument and record development.

Permitting plaintiffs who bring suits against States to

hold in reserve contentions that a State has waived

immunity from suit would be inconsistent with the courts

of appeals’ insistence that parties timely raise issues, as

well as this Court’s practice of declining to consider issues

raised for the first time in this Court.” To indulge the

belated suggestion of waiver invites gamesmanship with

this issue and disserves the lower courts’ ability to

consider and adjudicate the issue. The Court should hold

plaintiffs suing States to the same rules that govern the

27. See, e.g., Meyer v. Holley, 123 S.Ct. 824, 832 (2003); Demarest v.

Manspeaker, 498 U.S. 184, 188-89 (1991).

ees me

presentation of all parties’ arguments and decline to

address Frew’s waiver theory in this case.

B. Negotiating and Proposing the Consent

Decree Was Not a Clear Waiver by the

State of Texas of Its Eleventh Amendment

Immunity.

1. A State’s Eleventh Amendment immunity

from suit is not relinquished except when

done so expressly and unequivocally.

To accomplish an effective waiver of immunity from

suit in federal court, a State must expressly agree to be

sued in federal court or voluntarily invoke the jurisdiction

of the federal court. See Lapides, 535 U.S., at 622; Coll.

Sav. Bank, 527 U.S., at 675-76. Frew has not suggested

that any express waiver occurred in this case. Instead, she

contends that the state officials’ agreement to the consent

decree—to which the State was not a party—invoked the

jurisdiction of the federal court on behalf of the State. See,

e.g., Pet’r Br., at 22. By asking the Court to infer the

State’s consent to suit from the negotiation and proposal of

the consent decree by the defendant state officials, Frew in

effect seeks a resurrection of the long-repudiated

constructive-waiver doctrine. Cf. Coll. Sav. Bank, 527

US., at 667.

The Court has established the prerequisites for an

effective waiver of sovereign immunity. It must be

“unequivocall J” and “express” so as to “leave no room for

any other reasonable construction.” Edelman v. Jordan,

415 U.S. 651, 673 (1974); Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 242 (1985). The Court has also

insisted that a State’s intent to invoke the federal court’s

jurisdiction be voluntary, see Coll. Sav. Bank, 527 U.S., at

676-77, and possessed of “clarity,” Lapides, 535 U.S., at

621. In short, the Court has imposed a “stringent”

standard for waiver of immunity that requires a State to

conclusively register its consent to suit in federal court.

Atascadero, 473 U.S., at 241. “The whole point of requiring

a clear declaration by the State of its waiver is to be

certain that the State in fact consents to suit.” Coll. Sav.

Bank, 527 U.S., at 680 (emphasis omitted).

2. A State does not voluntarily invoke the

jurisdiction of a federal court when

state officials settle an Ex parte Young

suit in federal court.

a. Entry into a consent decree is not a

decree relates only to a decision by the parties to give up

their “right to litigate the issues involved in the case and

thus save themselves the time, expense, and the inevitable

risk of litigation.” United States v. Armour & Co., 402 U.S.

673, 681 (1971). That decision does not demonstrate the

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