This column first appeared Feb. 14 on Law and Liberty.

This is the second of two posts regarding an ongoing federal court lawsuit against the state of Texas’ foster care system, M.D. v. Abbott, now pending before the Fifth Circuit.

State-run foster care systems are frequent targets of “institutional reform litigation.” Most states have been sued in federal court by activist groups alleging deficiencies.  The reasons are obvious: foster care is a messy business, fraught with tragic situations and involving the most vulnerable members of society—children. Let us stipulate that child abuse and parental neglect are serious problems, deserving our compassion and attention. Let us also recognize that the problem is complex and defies easy solutions. The disintegration of the family unit is a catastrophe. No matter how much money is spent attempting to repair the damage of broken and dysfunctional families, the results will be imperfect. Critics will always be able to identify flaws, especially in hindsight.

The desire to help children is a powerful temptation to intervene when the status quo seems unsatisfactory—as it often does with intractable social problems. From a more cynical perspective, “compassion” is also an excuse frequently seized upon by opportunistic special interest groups and power-hungry judges to usurp authority properly entrusted to elected officials.  Particularly when children are involved, utopian liberal activists view solving social problems the way JFK viewed a moon landing—as a lofty goal to accomplish with enough taxpayer funding. (Recall that Hillary Clinton’s political mentor, Marion Wright Edelman, was the founder of the Children’s Defense Fund.)

The difference between the space program and institutional reform ligation is that NASA lacked the ability to set its own budget. If the political process fails to deliver enough government largesse to suit the activists’ demand, litigants have learned that federal judges—eager to win the praise of the liberal establishment—will intervene to shake more money out of the taxpayers’ pockets.

In that regard, since 2011 lawyers representing a New York advocacy group (and serial litigant), Children’s Rights, have pursued a class action lawsuit in federal court challenging the state of Texas’ child welfare system. The plaintiffs filed the case in Corpus Christi, Texas, a backwater venue stacked with liberal activist judges–forum-shopping, in other words. (The Left’s meritless challenges to Texas’ voter ID statute were filed in Corpus Christi for the same reason.) The case was assigned to Judge Janis Graham Jack, an appointee of President Bill Clinton, and her rulings have been predictably tilted in the plaintiffs’ favor throughout the litigation.

Texas, with a population of over 28 million people, is home to about 20,000 minors who, tragically, are permanent wards of the state due to parental neglect or abuse. These unfortunate children are enrolled in the state’s foster care system, under the direction of the Texas Department of Family and Protective Services (DFPS). Long-term foster care represents the last resort of social service agencies, reserved for only the worst cases, from irreparably broken or dysfunctional homes. Rescuing children from their near-Dickensian plight is an enormous and perilous undertaking; reality is inevitably more complicated than the sentimental depictions of orphans in movies such as Boys Town.

These problems present an ongoing challenge for the state’s social services agencies, which it is Texas’ sovereign right to administer. Judge Jack, however, saw problems in Texas’ foster care system as an opportunity to anoint herself Social Worker-in-Chief, and to place the DFPS under de facto federal receivership. Jack risibly concluded that the disparate circumstances of Texas’ foster youth, throughout the vast state, presented sufficient commonality to certify a class action of 12,000 foster children under Rule 23. Jack compounded this error by inventing a constitutional right protecting the class members: the substantive due process “right to be free from an unreasonable risk of harm.” Without any precedent whatever, Jack ruled that Texas owes a duty to foster children, under the U.S. Constitution, to protect them from the risk of experiencing any harm, both physical and emotional.

Following the “institutional reform litigation” playbook, Jack appointed two out-of-state “experts” to serve as “special masters,” charging the state’s taxpayers’ $345 an hour to determine what specific measures the state was obligated to adopt to comply with this amorphous duty. The special masters, in turn, commissioned two studies by researchers at the University of Texas. Experts hiring experts, on the state’s nickel, is reminiscent of the New York City special education fiasco.

After two years of work by the special masters (and their staffs), at a cost of $1.5 million, they made 56 quasi-legislative recommendations to Jack, including ordering DFPS to improve supervision, provide better health care, implement better staffing ratios (by hiring more caseworkers), provide a 24-hour hotline to report abuse, create a comprehensive computerized data base incorporating records for each foster child, and many other costly reforms. Again, these unproven, spare-no-expense remedies resemble the model UN ordered by Judge Clark in Kansas City.

On January 19, 2018, over the state’s objections, Jack issued a decision adopting most of the special masters’ recommendations in the form of an injunction—dictating to DFPS how to operate its foster care system.  In effect, Jack ruled that the special masters’ subjective “best practices” for foster care established a minimumstandard under the Constitution. This is pure judicial imperialism.

Because the case has been pending for nearly a decade, with a trial held in December 2014 and a liability finding against the state in December 2015, the Texas legislature had in the meantime appropriated more money to DFPS for foster care reforms—a lot more money.  In December 2016, legislators gave DFPS $150 million in emergency funds to hire more caseworkers. In the last legislative session, DFPS was awarded $ 4 billion for the 2018-19 biennial budget, up from $3.5 billion for the previous two-year budget. According to news reports, “That includes about $300 million to continue pay raises for caseworkers and another $88 million to more than 1,000 caseworkers over the next two years. The department also has $95 million to boost payments to foster care families and other providers.”

Astonishingly, notwithstanding these greatly increased appropriations, Jack concluded that the state’s voluntary remedies, while “indeed admirable, …cannot deprive a court of the power to order relief.” Her attitude was “hundreds of millions of dollars in additional state spending—so what?” In her 116-page ruling, Jack kept the state under the jurisdiction of her special masters as “monitors” for three years! Jack has effectively hijacked the state’s control of its own foster care system, using the lawsuit as a pretense for progressive social engineering. Perhaps the clearest indication that M.D. v. Abbott is a leftist crusade against Texas’ Republican-dominated state government is the liberal establishment’s canonization of the plaintiffs’ lawyer, Paul Yetter, and Judge Jack as “Attorney of the Year” and “Texan of the Year,” respectively.

The protracted litigation has largely escaped appellate review to date, for lack of an appealable final judgment. The issuance of an injunction, however, finally ended Jack’s unsupervised mayhem in the Southern District of Texas, Corpus Christi division. The Fifth Circuit issued an immediate stay of Jack’s decision, pending appeal, a sure sign of disapproval. Texas Attorney General Ken Paxton issued a statement, declaring that:

"Texas has a solemn responsibility to care for children removed from their homes due to neglect and abuse of all kinds, and last year the Legislature approved landmark changes in the foster care system. When unelected judges improperly assume control of state institutions, Texas officials cannot make the policy they’ve been entrusted to make. …The judge and special masters acted outside of their legal authority and ordered a plan that is both incomplete and impractical. We are asking the Fifth Circuit to correct this error. Responsibility for determining policy priorities and implementing best practices lies with the legislative and executive branches of government, and future lawmakers must have the flexibility to adapt as needs change. This plan effectively binds all foster care options in favor of the opinions of the Special Masters."

The Fifth Circuit has an opportunity—and an obligation—to restore popular sovereignty and democratic rule in the Lone Star State. Government by judiciary is inconsistent with federalism, and Jack’s lawless frolic must be resoundingly overturned.

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