When the two sides of a court case are actual adversaries, a consent decree makes sense. But when both sides of a lawsuit are actually on the same side, consent decrees become very different: They become a means of writing new laws without a single vote, and plundering the public treasury in the meantime.
The strategy works as follows: A progressive plaintiff (typically a non-profit) sues a government department alleging some kind of legal violation — typically of civil rights, environmental, or election law. And then, critically, they win without ever even going to trial to hear the case on its merits. Instead, the defending government body announces that the case is simply so strong, so unstoppable, that they must settle before trial. The resulting settlement is then legally binding on the government.
Consent decrees allow government to do quickly what would otherwise be time-consuming or outright impossible. For instance, new federal regulations are typically required to go through a lengthy rule-making process that usually takes two to three years. By intentionally losing a lawsuit to a left-wing plaintiff, bureaucratic agencies can have these regulations “forced” on them in far less time through a legal settlement.
But consent decrees don’t just create new regulations for Americans. They also serve to directly enrich those filing the lawsuits. Routinely, the federal government agrees to pay thousands or even millions of dollars to cover the legal fees of those who brought the complaint.