74 Pages Posted: 14 Nov 2019 Last revised: 2 Dec 2020
Date Written: November 1, 2019
This Article opens a new area of study at the intersection of federalism and federal outsourcing. Public law scholars have decried privatization’s distorting effects on constitutional rights, separation of powers, and administrative law. Missing from the literature, however, is a corresponding account for federalism. This Article pivots into that neglected space, with some urgency. In statehouses and courthouses around the nation, politicians and advocacy groups are mobilizing to hold federal contractors accountable to state law. Against these initiatives, the federal government and its contractors are hoping to find refuge in the Supremacy Clause.
The Supremacy Clause is the Constitution’s primary mechanism for resolving inevitable conflicts of law between two sovereigns operating in the same territory; it was not designed for the triangulated clashes between states and private actors performing federal work by contract. Current doctrine, however, flattens the structural difference. In scattered and undertheorized precedents, the U.S. Supreme Court has held that federal contracts can displace state law, and that the federal government’s constitutional immunity from state law extends to contactors. This Article shines critical light on these Supremacy Clause spinoffs and argues to overrule them on constitutional and normative grounds. Across the regulatory spectrum, contractors routinely stand in for federal actors. But their contracts need not, and should not, stand in for federal law.
Keywords: Supremacy Clause, preemption, intergovernmental immunity, privatization, government contracting, preemption by contract, immigration detention, student loan, loan servicers
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