Academic

Verkuil on Outsourcing & Delegation

By Lawrence Solum

Paul R. Verkuil (Cardozo Law School) has posted Outsourcing and the Duty to Govern on SSRN.  Here is the abstract:

This article, which will be a chapter in Government by Contract (Martha Minow and Jody Freeman eds., Harvard University Press 2008), addresses the proposition that some duties of government may not be transferred to private hands. It views the executive power as requiring public governance and connects Congress to this responsibility through the Appointments Clause. Officers of the United States are those officials directly charged with doing the public's business and any direct or indirect transfer of their responsibilities would run counter to the constitutional plan. Decisions at the margins, where government remains nominally in control, are less easy to categorize and issues of justiciability are always problematic. However, there remains a core of government responsibilities that must be protected from the increasingly robust privatization movement. This chapter is concerned with the transfer to private contractors of government power that might be considered inherent or significant under governing constitutional, statutory or regulatory norms (especially the Appointments Clause, the Subdelegation Act and OMB's A-76 process). Through a study of the Transportation Security Agency, it seeks to offer workable definitions of these limitations. This chapter connects to prior work by the author in Outsourcing Sovereignty (Cambridge University Press 2007).

Full post as published by Legal Theory Blog on February 20, 2008 (boomark / email).