Such decrees in effect represent the consent not of the governed, but of the government.

An excellent account of a much undiscussed oddity of American democracy - Consent Decrees.  From How Federal Cop Control Left Liberals Joyless in Seattle (Also, Tear-Gassed) by Eric Felten,  

Consent Decrees are a reasonably standard tool of governance.  From Wikipedia:

A consent decree is an agreement or settlement that resolves a dispute between two parties without admission of guilt (in a criminal case) or liability (in a civil case), and most often refers to such a type of settlement in the United States.  The plaintiff and the defendant ask the court to enter into their agreement, and the court maintains supervision over the implementation of the decree in monetary exchanges or restructured interactions between parties.  It is similar to and sometimes referred to as an antitrust decree, stipulated judgment, or consent judgment.  Consent decrees are frequently used by federal courts to ensure that businesses and industries adhere to regulatory laws in areas such as antitrust law, employment discrimination, and environmental regulation.

Consent decrees can cut through incompetence and/or corruption at a local level to address critical needs.  For example, Atlanta is under a consent decree from 1998, forcing the city to adhere to various water quality and usage objectives and forcing the City to spend some hundreds of millions on capital projects which it perennially neglected to do.  

A good outcome but from a governance perspective it highlights one of the two critical issues with consent decrees.  Twenty-three years later, Atlanta is still under that consent decree.  And that is not unusual.  

Under the Voting Rights Act of 1965: Section 5 some seven states in their entirety and select jurisdictions in four other states were required to pre-clear any changes to their voting processes with the Federal Department of Justice.  Over the years a number of jurisdictions and states were permitted to bailout from these obligations but it was an onerous process.  

All this came to a head in 2013 with the Supreme Court's decision in Shelby County v. Holder that the enforcement article of the VRA was unconstitutional.  The effect was to free seven states from continuing DOJ oversight for issues and conditions from forty-eight years earlier.

So consent decrees usually do address some serious issue but they become bureaucratically institutionalized, long outlasting their real relevance.  

There is a second issue.  Consent decrees can be used for partisan purposes with long term undemocratic consequences.  For example, see my post A political party was precluded from exercising its political rights? from 2019.  This revelation was astonishing to me for its clear partisan manipulation.  The orginal reporting was from RNC, freed from consent-decree limits, goes on ballot security offensive by Gregg Re. 

The Republican National Committee (RNC) has unanimously approved a major new working group to focus on ballot security measures and support for candidates facing election challenges, following accusations of voting irregularities in key races in Florida, North Carolina, California, and elsewhere.

A federal court consent decree, ended last year, had prohibited the RNC from engaging in ballot security activities for nearly 40 years. The aggressive new step, Fox News is told, is meant to level the playing field with the Democratic National Committee (DNC) as close elections increasingly become litigious and, in turn, bring discord, division and fiery talking points.

The RNC's new initiative was made possible by a decision last year by Newark-based U.S. District Court Judge John Michael Vazquez, an Obama appointee. For more than three decades, the consent decree had effectively prevented the RNC from engaging in ballot security efforts, and made RNC officials reluctant to become involved in lawsuits pertaining to to voting rights and election integrity -- including disputes regarding ballot harvesting, voter ID compliance, or voter registration list maintenance.

[snip]

The 1982 consent decree arose from a Democratic National Committee (DNC) lawsuit alleging that the RNC had targeted minorities to discourage them from voting. And, Republicans have long said, the arrangement gave the DNC a major leg-up when fighting for Democrat candidates in pivotal election integrity disputes.

The decree was renewed several times, but Vazquez ended it in 2018, saying that despite Democrats' accusations, a preponderance of evidence did not establish any violations by the RNC.

So one major political party was able to effectively gag another for nearly forty years through a consent decree.  Now there's a problem.

But the largest issue with consent decrees is that while they may (or may not) be tactically effective, they are grossly incongruent with our political norms which grant authority primarily through the accountability of local representatives through the electoral process.  Consent decrees often transfer accountability from local elected authorities to distant Federal judges who are not locally elected and have no accountability to citizens.  

Felten's piece explores another common form of consent decree - the transfer of responsibility for local police department performance from local and accountable politicians to Federal judges.  Among the examples explored are DOJ consent decrees covering the police departments of Baltimore, Seattle, Ferguson, Cleveland, and Los Angeles.  

Felten is exploring both the governance implications of removing critical functions beyond the control of locally elected officials as well as whether the consent decrees even work at all.  An example:

Advocates for consent decrees, by contrast, argue that “local police departments can’t reform themselves,” as Erwin Chemerinsky, dean of Berkeley Law, put it in the Los Angeles Times. “Bring on the feds.”

Bring on the feds they did in Seattle, but in practice, the feds may well halt reform -- cementing long-standing police practices, and hindering lawmakers’ ability to make timely changes.

The federal investigation into Seattle’s policing that resulted in its consent decree was led by a U.S. attorney, Jenny Durkan. She came from a prominent political family in Washington state described as West Coast Kennedys. Durkan’s federal Department of Justice experience and political ambitions came together when she successfully ran for mayor of Seattle in 2017, trumpeting her role in putting the Seattle Police Department (SPD) under the consent decree. “Durkan's tenure as U.S. attorney for the Western District of Washington,” the Seattle Times wrote in an election season profile, “is the cornerstone of her campaign.”

But the city arguably paid a price for the consent decree Durkan helped secure, and then ran on – the city lost control of its ability to respond to crises involving its police department. Years of training in “Use of Force Principles,” and “Weapon-Specific Policies” mandated by the decree left law enforcement unprepared for the protests and riots of last summer. Local officials were appalled at the SPD’s use of tear gas, “blast balls” and other crowd-control weapons, and last July the Seattle City Council voted 9-0 to ban them.

The council also took up the call to “defund the police,” voting to shift millions of dollars out of the police budget. Mayor Durkan opposed the action, but the lawmakers overruled her veto. And yet, they were stonewalled. It was not police who found themselves hobbled by federal oversight. Instead, the uniformly liberal city council was. It was repeatedly blocked in its efforts to defund the police and limit the weapons that could be used for crowd control as a consequence of the consent decree.

When Seattle copped to a consent decree rather than fight the DOJ’s determination that its policing was discriminatory, violent, and unconstitutional, its police department found itself answering to Judge Robart. (Judge Robart would become nationally known for halting President Donald Trump’s executive order temporarily suspending immigration from terrorism-linked countries.)

Judge Robart declared Seattle couldn’t make changes to policing in the city without his permission, even though he admitted he might not have been an infallible expert on the issues: “I can’t tell you today if blast balls are a good idea or a bad idea,” Robart said in July 2020, “but I know that sometime a long time ago I approved them.” This matter of expertise alone is one of the problems with consent decrees.

“Last summer we asked the court to maintain the consent decree in the face of outsized police response to mostly peaceful protests,” councilmember Lisa Herbold recently wrote in a newsletter to her constituents. Now “we are faced with a consent decree that is a barrier to passage of policy regulating the use of weapons like blast balls and tear gas.” The consent decree had also become a barrier, Herbold said, “to the Council fulfilling our commitment to reduce [the Seattle Police Department’s] budget to hold them accountable.”

Judge Robart went still further. He not only blocked lawmakers from implementing policy reforms, but dressed them down for not recognizing his authority. “I have some rather harsh words for the City Council over the last six months or so,” Robart declared this past February. “I think they have lost sight of the fact that the 100 paragraphs in the consent decree are not 100 paragraphs. They are not even commitments. They are obligations, orders from this court of things that will be done,” Robart said. “And when they decide to take matters into their own hands in contravention of the Consent Decree, then they drag me into a situation that I don’t want to be in, which is telling them, ‘No, you can’t do that.'”

RCI submitted questions to Judge Robart about his control over Seattle police operations. A clerk replied: “Judge Robart does not respond to media inquiries on active matters before the court.” That may be a reasonable judicial policy, but it also means an individual governing a big city police department might go years without taking questions on how he’s doing the job.

[snip]

But where does federal authority leave room for local lawmakers’ preferred policies to be tested? “Defunding” the police may be a good idea; it may be a terrible idea. But without responsibility for the outcome, legislators don’t have to answer for their role in the policy chosen. With judges dictating policy, Schoenbrod says, accountability is lost. Elected officials can say “The court made us do it.”

Michael Morley, professor at Florida State University College of Law, contends that -- consistent with Seattle’s experience -- consent decrees tend to entrench one or another set of policies and stifle change, rather than spur reforms. Such decrees in effect represent the consent not of the governed, but of the government. 

Worth reading at length, particularly as the topic is so underreported.