'We the People,' Constitutional Accountability, and Outsourcing Government
Kimberly N. Brown
University of Baltimore School of Law
Indiana Law Journal, Vol. 88, No. 4, Fall 2013, pp 1347-1403
University of Baltimore School of Law Legal Studies Research Paper No. 2014-08
The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the "federal government" itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do not apply to private contractors exercising identical powers. This accountability vacuum is not remedied by prevailing constitutional doctrine, which ignores the realities of modern government by drawing an artificial line between the public and private spheres. I have thus argued previously that all private contractors should be viewed as anatomically related to other quasi-government entities such as independent agencies, residing along a single continuum of constitutional accountability. This Article builds on that premise by positing that private-public relationships be structured to ensure accountability as a matter of constitutional law.
Number of Pages in PDF File: 59
Keywords: Federal outsourcing, private contractors, government contractors, abuses of power, errors, government accountability, constitutional doctrine, public sphere, private sphere, quasi-government entities, independent agencies, constitutional law
JEL Classification: K19, K29, K39, K49Accepted Paper Series
Date posted: February 13, 2014 ; Last revised: September 23, 2014
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