Judge JACOBS concurs in the majority opinion, and files a separate opinion joined by Chief Judge WINTER and Judges KEARSE, JOHN M. WALKER, Jr., McLaughlin, joseé cabranes, and PARKER.
[149] Judge LEVAL concurs in all but Part II.A. of the majority opinion, and files a separate opinion joined by Judge OAKES and joined in part by Judge CALABRESI.
Judge CALABRESI concurs in the result, and files a separate opinion.
KEARSE, Circuit Judge,
with whom Chief Judge WINTER, and Judges walker, McLaughlin, Jacobs, CABRANES, and PARKER join, and with whom Judges OAKES and LEVAL join except for Part H.A.:
Plaintiffs James Benjamin et al., who are pretrial detainees, appealed from an order of the United States District Court for the Southern District of New York, Harold Baer, Jr., Judge, entered pursuant to the Prison Litigation Reform Act of 1995 (“PLRA” or the “Act”), Pub L. No. 104-134, 110 Stat. 1321-66 §§ 801-810 (1996), codified at 18 U.S.C. § 3626 (Supp. II 1996); see also 18 U.S.C.A. §§ 3626(b)(3), (e)(2), (e)(3) (West Supp. 1998), vacating certain consent decrees entered in 1978 and 1979 (the “Consent Decrees” or the “Decrees”) in actions brought by classes of pretrial detainees against defendant officials of the City of New York (collectively the “City”) to challenge the conditions of confinement of persons held in City institutions awaiting trial or other disposition of criminal charges. The district court rejected plaintiffs’ challenges to the constitutionality of the PLRA’s provision requiring -the termination of consent decrees not meeting criteria set by' the Act, vacated the Consent Decrees, and dissolved the injunctions that had been entered pursuant to the Decrees. See Benjamin v. Jacobson, 935 F.Supp. 332 (1996) (“Benjamin I”). A unanimous panel of this Court upheld the district court’s rejection of the constitutional challenges but reversed the vacatur of the Decrees, ruling that the Act does not call for the termination of consent decrees not meeting the requirements of the Act, but merely limits the power of federal courts to enforce those decrees and leaves the decrees intact and enforceable in state courts. See Benjamin v. Jacobson, 124 F.3d 162 (1997) (“Benjamin II ”). On en banc reconsideration, we conclude that the PLRA requires the termination of consent decrees that do not meet the criteria established by the Act; that that provision does not violate the constitutional principle of separation of powers or infringe the due process, equal protection, and other constitutional rights invoked by plaintiffs; and that plaintiffs should be afforded an opportunity to show that, under the Act’s criteria, the continuation of prospective relief is warranted. We therefore vacate the decision of the panel; we affirm in part and reverse in part the order of the district court and remand for further proceedings.
I. BACKGROUND
This action comprises seven related class actions brought during the mid-1970s by pretrial detainees in certain New York City jails, alleging that conditions of their confinement violated their constitutional rights. See Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y.) (Rikers Island House of Detention for Men, now called the James A. Thomas Center); Forts v. Malcolm, 76 Civ. 101 (S.D.N.Y.) (Rikers Island Correctional Institution for Women, now called the Rose M. Singer Center); Ambrose v. Malcolm, 76 Civ. 190 (S.D.N.Y.) (Bronx House of Detention for Men); Maldonado v. Ciuros, 76 Civ. 2854 (S.D.N.Y.) (Rikers Island Adolescent Reception and Detention Center); Detainees of the Brooklyn House of Detention for Men v. Malcolm, 79 Civ. 4913 (E.D.N.Y.); Detainees of the Queens House of Detention for Men v. Malcolm, 79 Civ. 4914 (E.D.N.Y.); Rosenthal v. Malcolm, 74 Civ. 4854 (S.D.N.Y.) (Rikers Island Adult Mental Health Unit). The Consent Decrees were designed “to ensure that prison conditions became and remained safe and humane.” Benjamin I, 935 F.Supp. at 337. The Decrees, inter alia,
ensure that detainee mail and property are handled properly, and that proce[150] dures in concert with constitutional protections are followed during detainee cell and body searches. On an institutional level, the Consent Decrees seek to maintain the physical plant of the jails in a condition safe for human habitation. They mandate that attention be given to vermin and insect control, sanitation, maintenance and refuse removal. Other provisions govern food services to the detainees and ensure that the detainees are adequately fed while in custody, with food that is prepared and served in a sanitary environment.
Id. As noted in Benjamin II, “[tjhese decrees have generated a judicially administered structure comprising over ninety related court orders and extending to more than thirty discrete areas of prison administration.” 124 F.3d at 165.
A. The PLRA and the Proceedings in the District Court
Effective April 26,1996, Congress enacted the PLRA which, inter alia, provides that in civil actions arising under federal law challenging conditions in prisons (including pretrial detention facilities) “prospective relief’ may not be granted in the absence of certain findings:
[pjrospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A). With respect to judgments entered prior to the effective date of the PLRA, the Act provides for the termination of prospective relief that was ordered without the court having made these findings as to need, narrowness, and intrusiveness:
IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF. — In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
Id. § 3626(b)(2) (“termination provision”). However, the Act provides that even if the need-narrowness-intrusiveness findings had not been made in connection with the entry of the decree, the prospective relief is not to be terminated
if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
18 U.S.C.A. § 3626(b)(3) (West Supp.1998), as amended and made applicable to all pending cases, see Pub.L. No. 105-119, § 123(a)(2) & (b), 111 Stat. 2440, 2470 (Nov. 26, 1997) (changing “current or ongoing” to “current and ongoing”).
In the Act, “the term ‘prospective relief ” is defined to “mean[ ] all relief other than compensatory monetary damages,” 18 U.S.C. § 3626(g)(7), and “ ‘relief means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements,” id. § 3626(g)(9). The term “private settlement agreement” is defined to “mean[j an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding [151] that the agreement settled,” id. § 3626(g)(6); the term “consent decree” is defined to “meant ] any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settlement agreements,” id. § 3626(g)(1).
Shortly after the PLRA’s effective date, the City moved for the immediate termination of the Consent Decrees and related orders on the ground that the Decrees had been entered without the need-narrowness-intrusiveness findings required by the PLRA. Plaintiffs conceded that no such findings had been made and that the requisite findings would not be supported by the record in its present state; but they challenged the constitutionality of the Act as applied to existing consent decrees, arguing principally that it violates the constitutional principle of separation of powers and denies them equal protection and due process. In support of their separation of powers contention, plaintiffs argued that the Act requires the reopening of final judgments and thereby exceeds Congress’s power as elucidated in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (“Plant ”), and impermissibly prescribes a rule of decision without changing the underlying substantive law, contrary to the principle established in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871). They also argued that the Act impermissibly deprives the federal courts of their Article III power to remedy violations of constitutional rights. Plaintiffs requested an opportunity, if the court rejected their constitutional arguments, to create a factual record as to the current conditions in City detention facilities in order to permit the court to make the findings required by 18 U.S.C.A. § 3626(b)(3) (West Supp.1998) for the continuation of the injunctive relief granted by the Consent Decrees. The United States intervened in the action in order to defend the constitutionality of the Act. See 28 U.S.C. § 2403(a).
In Benjamin I, the district court upheld the constitutionality of the Act’s termination provision and granted the City’s motion. See 935 F.Supp. at 358. The court reasoned that the Act does not violate the principle barring Congress from reopening final judgments because a consent decree calling for continued compliance with prescribed standards is not a final judgment in the same sense in which a judgment for monetary relief would be final:
Where the suit is an action at law for damages and the judgment has become final for res judicata purposes, the judgment is no longer subject to congressional enactments. See Plaut, [514 U.S. at 225-26, 115 S.Ct. 1447]. Where the judgment imposes an executory decree, though, and the court retains supervisory jurisdiction, the judgment’s prospective effects are not final for separation-of-powers purposes.
Benjamin I, 935 F.Supp. at 345. The district court viewed “the Consent Decrees [as] executory judgments with prospective effects,” and noted that they “impose[d] injunctive relief over which this Court has retained supervisory jurisdiction.” Id. at 347. The court concluded that the Decrees were subject to alteration by Congress without infringing the principle announced by Plant.
The district court also found no violation of the principle enunciated in United States v. Klein. It reasoned that “while Congress did not amend the substantive law with respect to permissible prison conditions,” it also did not prescribe a substantive rule of decision but merely “changefd] the law governing the district court’s remedial powers.” Benjamin I, 935 F.Supp. at 350. The court also rejected the suggestion that the PLRA prevented the courts from effectively remedying violations of constitutional rights. It observed that the Act allows the courts, on the condition that they make the requisite findings as to relief, to “continue to define the scope of prisoners’ constitutional [152] rights, review the factual record, apply the judicially determined constitutional standards to the facts as they are found in the record and determine what relief is necessary to remedy the constitutional violations.” Id. at 351.
The district court rejected plaintiffs’ due process arguments, reasoning that because the Consent Decrees were not “final” with respect to future conditions, plaintiffs had no vested rights in their continued enforcement. See id. at 356. The court rejected the equal protection arguments, noting that prisoners are not a suspect class and stating, inter alia, that the Act was “supported by plausible legitimate government interests and the means chosen to advance these goals are rationally designed.” Id. at 354.
The court also denied plaintiffs’ request for an opportunity to present evidence as to the need for continuation of the prospective relief provided for in the Decrees. It stated that “[t]he statute provides for ‘immediate termination’ and based on the current record before the Court, the defendants are entitled to vacatur of the Consent Decrees.” Id. at 357. The court entered an order stating that “the Consent Decrees in these cases are VACATED pursuant to 18 U.S.C. § 3626(b)(2).” 935 F.Supp. at 358.
Plaintiffs promptly asked the court to, inter alia, rescind its vacatur of the Consent Decrees pending a hearing as to the existence of continuing violations. They argued that because of the course, complexity, and time-pressures of the litigation, they had not had an opportunity to present such evidence. In the alternative, plaintiffs asked the court to certify questions of the Act’s interpretation and constitutionality for an immediate appeal and to stay its ruling pending appeal. The court denied the motions for rescission and a hearing but granted the motion for a stay until such time as a stay pending appeal could be sought from this Court.
Plaintiffs promptly appealed, and this Court granted motions for an expedited appeal and a stay.
B. The Panel Decision
Plaintiffs pursued their constitutional challenges to the PLRA on appeal. In Benjamin II, the panel unanimously affirmed the district court’s rejection of the constitutional challenges to the termination provision, albeit on different reasoning, and it reversed the vacatur of the Consent Decrees. The panel based its conclusions on its view that the Act does not require the termination of consent decrees entered-without the mandated need-narrowness-intrusiveness findings; rather the panel concluded that the Act merely prohibits federal courts from enforcing such decrees and leaves parties free to seek enforcement of the consent decrees in state courts.
The panel began by noting that the PLRA had been enacted in part to answer the criticism that federal courts had overstepped their authority in the context of prison litigation. After quoting § 3626(b)(2)’s provision for “the immediate termination of any prospective relief if the relief was approved or granted in the absence of’ the specified need-narrowness-intrusiveness findings, the panel stated as follows:
This, language can be read in either one of two ways, each of which, if constitutionally valid, would respond to the criticisms that led to the PLRA. The first interpretation would limit the jurisdiction of federal courts so that these courts could not in the future enforce past consent decrees, except insofar as the decrees were found to be tailored to a federal right. The second would render null and void all past federally approved prison consent decrees unless these decrees met the requirement of being narrowly tailored to a federal right....
The correct reading of the section turns on the meaning of the words “termination of prospective relief.” If [153] “prospective relief’ includes the past Decrees themselves, then these are terminated and annulled under the law. If, instead, “termination of prospective relief’ means that no future relief — that is neither future enforcement nor articulation — is available in federal courts under past Decrees, then the Decrees remain valid, but no longer subject to federal jurisdiction.
At a glance, the second interpretation seems plausible. The statute defines “prospective relief’ as “all relief other than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). It also states that “the term ‘relief means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements.” 18 U.S.C. § 3626(g)(9) (emphasis added). One could, therefore, maintain that “prospective relief’ includes the Decrees because (1) “prospective relief’ includes all relief except damages, (2) “relief’ includes “consent decrees,” and (3) consent decrees are not damages.
But, in fact, such a reading has significant linguistic problems. Taken literally, it would imply that the word “relief,” without more, includes within it “private settlement agreements.” Yet it would be a remarkable twisting of language to describe a contract or an agreement as a form of relief. We simply do not talk that way. The ordinary way of talking and writing is to speak of relief available under or pursuant to a private settlement agreement. Since it is clear that private settlement agreements are not a form of relief, why does the definition expressly exclude them? Under the circumstances, it makes more sense to read the definitional phrase as saying “the term ‘relief means all relief in any form that may be granted or approved by the court, and includes [all relief granted pursuant to] consent decrees but does not include [relief granted pursuant to] private settlement agreements.” While one can define anything to mean anything, courts should be reluctant to read a definitional sentence to mean something that makes another part of the same sentence meaningless or completely superfluous.
124 F.3d at 166-67 (emphases and brackets in original). The panel found that its second hypothesized interpretation (ie., that the Act requires annulment of past federal consent decrees not narrowly tailored to the vindication of a federal right) created serious separation of powers problems, for “[u]nder the second interpretation, the termination provision will strip the plaintiffs of all of the protections they negotiated into the Consent Decrees except for those narrowly tailored to federal rights.” Id. at 168.
Instead, reasoning that “federal consent decrees are not only federal court judgments but also, and separately, contracts arising under state law,” the panel adopted its first interpretation (ie., that the PLRA simply eliminates the federal courts’ enforcement jurisdiction), concluding that the “underlying contract, in its time made into a judgment, is left untouched.” Id. at 178. The panel concluded that the PLRA “simply force[s] the plaintiffs to seek redress for the non-federal aspects of the Decrees in state court as opposed to federal court.” Id. at 168.
The panel also concluded that in light of its interpretation that the Act “does not annul the underlying Decrees, but, instead, only changes the forum in which they can be enforced,” id. at 174, plaintiffs’ constitutional challenges should be rejected. See, e.g., id. at 170, 173, 174, 176-77 (separation of powers); id. at 176 (due process); id. at 177 n. 18 (due process and equal protection).
In sum, the panel concluded that “the non-federal aspects of the Consent Decrees are hereafter not to be enforced by the federal courts,” but that the plaintiffs “should be able to get all the relief from state courts, including specific performance, that had previously been available [154] to them federally under the Consent Decrees.” Id. at 178. “[W]hile the defendants may be entitled to immediate termination of prospective relief from the federal courts, there is nothing to prevent the plaintiffs from seeking the enforcement of the Consent Decrees in state courts.” Id. at 165 (emphases in original). In light of its conclusion that prospective relief entered without the required need-narrowness-intrusiveness findings need not be terminated, and that the Act merely requires that enforcement of that relief be sought in state court, the panel reversed the district court’s vacatur of these Consent Decrees and ruled that plaintiffs are entitled, at their option, to have an evidentiary hearing in the district court on their allegations of current and ongoing violations of federal rights or to “seek enforcement of the Decrees in their entirety in state court.” Id. at 180.
C. Rehearing En Banc
The City petitioned for rehearing, with a suggestion for rehearing en banc, arguing principally that the panel had misinterpreted the PLRA, and in doing so had “vitiate[d] the -redress that Congress sought to provide to overburdened states and municipalities by transforming a statute intended to protect defendants from extra-constitutional burdens into one that ensures the perpetuation of those burdens via the state courts.” (City Petition for Rehearing at 3.) In December 1997, we agreed to rehear the appeal en banc.
On rehearing, plaintiffs contend principally (1) that Benjamin II’s construction of the PLRA as terminating only the Decrees’ enforceability in federal, not state, court, was correct, and (2) that this Court should nonetheless conclude that the Act’s termination provision violates Article III of the Constitution and the principle of separation of powers, and that application of the termination provision to the Decrees denies them due process and equal protection. -They also urge, if the Act’s termination provision is upheld, that they be given a meaningful opportunity to present evidence to the district court that the Decrees should be continued.
The City disagrees with Benjamin II’s interpretation of the PLRA. It argues that the district court’s decision upholding the constitutionality of the PLRA and vacating the Decrees was correct, and it urges that the order of the district court be affirmed. The State of New York has filed a brief on behalf of itself and numerous other States as amici curiae, supporting the position of the City. The United States, as intervenor, has filed a brief arguing that the Act is not unconstitutional, that the panel opinion in Benjamin II should be reversed to the extent that it does not uphold the PLRA as written, and that the matter should be remanded to the district court for further proceedings to determine the need for continuation of the future relief ordered in the Decrees.
For the reasons that follow, we conclude that the Act provides for the termination, though not the annulment, of consent decrees that do not meet the need-narrowness-intrusiveness criteria established by the Act; that plaintiffs’ constitutional challenges to the termination provision were properly rejected; and that plaintiffs were entitled to an opportunity to show, in accordance with the Act, that any or all of the prospective relief ordered by the Decrees should be continued. We therefore vacate the panel decision, affirm the district court’s rejection of plaintiffs’ constitutional challenges, reverse the district court’s vacatur of the Consent Decrees, and remand for further proceedings.
II. INTERPRETATION OF THE PLRA
A. The Scope of the PLRA’s Termination Provisions
The PLRA sets limitations on, inter alia, the power of the courts to continue certain forward-looking relief in civil actions challenging conditions in prisons or [155] pretrial detention facilities. It provides, in pertinent part, as follows:
(b) TERMINATION OF RELIEF.—
(2) IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF. — In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
(3) LIMITATION. — Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
(c) SETTLEMENTS.—
(1) CONSENT DECREES. — In any civil action with respect to prison conditions, the court-shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in subsection (a).
(2) PRIVATE SETTLEMENT AGREEMENTS. — (A) Nothing in this section shall preclude parties from entering into a private settlement agreement that does not comply with the limitations on relief set forth in subsection (a), if the terms of that agreement are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled.
(B) Nothing in this section shall preclude any party claiming that a private settlement agreement has been breached from seeking in State court any remedy available under State law. ■
18 U.S.C. §§ 3626(b)(2), (c); 18 U.S.C.A. § 3626(b)(3) (West Supp.1998).
The most pertinent terms used in these provisions are defined in the Act as follows:
(1) the term “consent decree” means any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settlements;
(5) the term “prison” means any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law;
(6) the term “private settlement agreement” means an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled;
(7) the term “prospective relief’ means all relief other than compensatory monetary damages;
(9) the term “relief’ means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements.
18 U.S.C. §§ 3626(g)(1), (5), (6), (7), (9).
In interpreting a Congressional enactment, we generally assume that the ordinary meaning of language used in the statute accurately expresses Congress’s purpose, unless the statute contains a contrary indication. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). If the statute includes an explicit statutory definition, we accord that definition controlling weight, see, e.g., Meese v. Keene, 481 U.S. 465, 484, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987), even if it varies from common usage, see, e.g., Western Union Telegraph Co. v. Lenroot, [156] 323 U.S. 490, 502, 65 S.Ct. 335, 89 L.Ed. 414 (1945).
The PLRA’s termination provision affects only “prospective relief.” In order to determine whether that provision is meant to be applied to consent decrees, therefore, we look to the Act’s explicit definition of prospective relief and, as necessary, to the definitions of the terms to which that definition refers. The definition of “prospective relief’ does not refer in haec verba to consent decrees but states simply that prospective relief is any “relief’ other than compensatory monetary damages. The definition of relief, however, expressly “includes consent decrees.” 18 U.S.C. § 3626(g)(9). This inclusion ,is reinforced by the definition of the term “consent decree” itself, which “means [consensual court-ordered] relief.” Id. § 3626(g)(1). These definitions make it doubly plain that a consent decree, to the extent that it awards a remedy other than compensatory monetary damages, constitutes prospective relief within the meaning of the Act. We thus conclude that the termination provision applies to consent decrees.
The Benjamin II panel reached the opposite conclusion principally because the definition of “relief” also expressly excludes “private settlement agreements,” an exclusion the panel found superfluous because one does not ordinarily characterize an agreement as relief. We share the panel’s view that this is not a natural characterization; nor do we think it entirely natural to characterize a consent decree itself, as contrasted with the decretal provisions it contains, as relief. The awkwardness in this instance does not, however, obscure Congress’s intent. In defining relief to exclude private settlement agreements (ie., agreements that are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled), Congress simply excluded those agreements from the governmental obligations that must be based on need-narrowness-intrusiveness findings, and hence preserved them from termination.
Congress may, of course, choose to formulate its enactments in any of a number of ways. It might, for example, state in haec verba that “A, B, C, and D are prohibited.” Or it might state simply that “X is prohibited,” and define “X” to mean “A, B, C, or D.” The scope of both statutory prohibitions would be the same. Congress’s selection of the definitional structure for the PLRA, stating that the court must terminate “prospective relief’ not supported or supportable by need-narrowness-intrusiveness findings, and defining prospective relief to include consent decrees but to exclude private settlement agreements, is the equivalent of a provision stating that the court is to terminate consent decrees as to which need-narrowness-intrusiveness findings have not been and cannot be made, but it is not to terminate private settlement agreements even if such findings could not be made. We think it clear from the statutory terms distinguishing between consent decrees and private settlement agreements that Congress intended to free governments from judicial constraints not based on need-narrowness-intrusiveness findings, but not to relieve them of their private contractual obligations — however broad— that are not judicially ordered.
We do not see any basis for inferring that Congress meant federal consent decrees that are not based on need-narrowness-intrusiveness findings to remain in effect and amenable to enforcement in state courts. It seems implausible that Congress meant to forbid a federal court to enforce these federal judgments but to allow them to be enforceable in a state court, and the language of the Act is contrary to any suggestion that a decree not supported by the-mandated findings is to be allowed to remain in effect. Although the word “termination” is not defined in the Act, its ordinary meaning is the antithesis of continuation.
[157] We also note our disagreement with the Benjamin II panel’s view that federal consent decrees not supported by the mandated findings remain enforceable in state courts' on the theory that settlement agreements are both private agreements and consent decrees. An agreement leading to a consent decree is normally conditional, setting out actions and forbearances to which the defendant agrees and stating that the settlement is conditioned on being so-ordered by the court. See, e.g., Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y. Nov. 29, 1978) (Stipulation for Entry of Partial Final Judgment at 1 (“IT IS HEREBY STIPULATED by and between the undersigned attorneys for the plaintiffs and the defendants herein, and subject to approval by the Court ” (emphasis added))). A plaintiff willing to settle constitutional claims by way of a consent decree seeks the assurance that, if the defendant fails to fulfill its agreed obligations, those obligations will be enforceable through the court’s exercise of its contempt power. We are not aware of any practice whereby the plaintiffs, especially in institutional litigation involving constitutional claims for injunctive relief, agree to a consent decree and also agree — either in the same document or in a separate document — to give up their claims unconditionally in exchange for undertakings by the defendants that would not be enforceable except through the commencement of a new lawsuit for breach of contract.
Where the parties have made an agreement to settle conditional on approval by the federal court, there is no enforceable agreement if the condition fails. The parties may of course enter into an agreement that is not conditioned on such approval, but that would be a different agreement from an accord envisioning a consent decree. The court’s approval of any judgment, whether litigated or consensual, is of course subject to change if the conditions underlying the judgment change. See, e.g., System Federation No. 91, Railway Employes’ Department, AFL-CIO v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961) (“System Federation ”) (“court will not continue to exercise its powers [ junder [a consent decree] when a change in law or facts has made inequitable what was once equitable”); Fed. R.Civ.P. 60(b)(5) (“court may relieve a party ... from a final judgment ... [on a showing that] ... it is no longer equitable that the judgment should have prospective application”).