# Respondents Brief — Frew v. Hawkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2004 - **Citation:** 540 U.S. 431 ## Text In the Supreme Court of the Anited States LINDA FREW, ON BEHALF OF HER DAUGHTER, CARLA FREW, ET AL., Petitioners, v. 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 ae 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? ii 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 En 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 a 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 Ee 23 27 30 32 33 35 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 ix 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 x 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 xi 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. bo —— 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. 4 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 5 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 - 7 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 8 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., = 9 535 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). 10 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). 11 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. 12 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 13 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. 14 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 — —- - es oe ee ew 15 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. 16 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. 17 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. 18 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 —_ 19 “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 20 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- -—— > —_ 21 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). 22 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”). Oe 23 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). 24 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 25 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). 26 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). 27 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, 28 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. 29 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). 30 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 ———— 31 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. 32 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 33 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 34 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 35 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 PUBLISHER'S NOTE: Page(s) 3’)- SO missing in original. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A05. Public record. Not legal advice.