64 Pages Posted: 24 Oct 2010 Last revised: 4 Dec 2010
Date Written: December 1, 2010
For decades, policymakers have been privatizing government responsibilities for the customary, and ostensibly exclusive, objective of providing the public with the same goods and services more efficiently. It is becoming increasingly apparent that these policymakers are also doing something different: they are using that purportedly technocratic process to substantively alter the very policies they are supposed to be neutrally administering. And, it is working: these privatization “workarounds” can directly change the content of public education, health, and social welfare programs, the outcome of regulatory enforcement and rulemaking proceedings, and the trajectory of police and national security operations.
Workarounds provide outsourcing agencies with the means of accomplishing distinct policy goals that – but for the pretext of technocratic privatization – would either be legally unattainable or much more difficult to realize. In short, they are executive aggrandizing. They enable Presidents, governors, and mayors to exercise greater unilateral policy discretion – at the expense of legislators, courts, successor administrations, and the people.
Although lively privatization debates abound in the academy and inside the Beltway, both communities have given insufficient attention to this transformative and potentially transgressive practice. This Article, which received the American Constitution Society’s 2010 Richard D. Cudahy Writing Competition on Regulatory and Administrative Law Award, tackles workarounds head-on. Specifically, this Article locates the structural process failures in government contracting that enable workarounds; develops an overarching conceptual framework and typology of workarounds; and prescribes a protocol for analytical and regulatory intervention.
Keywords: Administrative Law, Privatization, Government Outsourcing, Separation of Powers, Executive authority, Constitutional Law, National Security, Bureaucracy, Accountability
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