Outsourcing the Constitution and Administrative Law Norms

• Published date: 01 June 2005
• Author: Suzanne J. Piotrowski,David H. Rosenbloom
• Date: 01 June 2005
• DOI: 10.1177/0275074004272619
• Subject Matter: Articles

10.1177/0275074004272619ARPA/June2005Rosenbloom,Piotrowski/OUTSOURCING

INVITED ESSAY

OUTSOURCING THE CONSTITUTION

AND ADMINISTRATIVE LAW NORMS

DAVID H. ROSENBLOOM

American University

SUZANNE J. PIOTROWS KI

Rutgers University—Newark

In the United States, the constitutional constraints and administrative law requirements imposed on government

agencies generally have no applicability to private entities performing outsourced public administrative activities.

In this article, the authors broadly explorethe issues associated with outsourcing constitutional and administrative

law norms along with government work by imposing them on private contractors. The authors seek to help frame

these issues morecogently for the public administration community in an effort to promote morecomprehensive and

thoughtful discussion of outsourcingand a greater role for public administrative expertise in determining when and

how to apply constitutional and administrative law norms to government contractors.

Keywords: outsourcing; constitution; administrative law; state action doctrine; freedom of information

The literature on privatization in public administration pays only limited attention to the

stark reality that when government activities are privatizedor outsourced, democratic norms

embodied in constitutional and administrative law are apt to be lost. Notable exceptions

include Moe (1987, 2001), Moe and Gilmour (1995), Gilmour and Jensen (1998), and Rob-

erts (2000).1However, much more space has been devoted to this result of so-called third-

party government in law reviews (Bass & Hammitt, 2002; Feiser, 1999; Freeman, 2003;

Gillette & Stephan, 1998; Guttman, 2000a; Mays, 1995). Failure to more fully address the

effect of privatizationon constitutional and administrative law rights and protections in pub-

lic administration promotes discussion and analysis that focus overwhelmingly on cost-

effectiveness,techniques for privatizing and outsourcing, contract management, and perfor-

mance monitoring. The field’sinstrumental and pragmatic approaches often give short shrift

to constitutional contractarianism (Piotrowski & Rosenbloom, 2002; Rosenbloom, 2003,

pp. 172-176; Rosenbloom & O’Leary, 1997, pp. 17-22). Public administrativescholars and

practitioners, anxious to improve administrative practice, often jump from accurate diagno-

sis of complex problems to the prescription of untested, flawed, or ill-conceived reforms—

many of which fail largelybecause they emphasize managerial values over political and con-

stitutional ones (Caiden, 1991, pp. 1-33, 296-298). This is often manifested in proposals for

Initial Submission: August 6, 2004

Accepted: September 15, 2004

AMERICAN REVIEW OF PUBLIC ADMINISTRATION, Vol.35 No. 2, June 2005 103-121

DOI: 10.1177/0275074004272619

© 2005 Sage Publications

103

third-party accountability that largely ignore law, relying instead almost entirely on nested

hierarchical managerial relationships reaching through the top levels of agencies and poten-

tially culminating in oversight by elected officials (Posner, 2002). In focusing on manage-

ment, contemporary public administration tends to neglect the broader issues of democratic

governance, which were historically at the core of the field’s concerns (Lynn, 2001).

In this article, we illustrate some of the costs of privatizationand outsourcing in terms of

constitutional and administrative law norms as well as why competitive sourcing equations

are incomplete without their full consideration. We explore the prospects for outsourcing

constitutional and administrative law norms along with government activities by subjecting

contractors to some of the requirements these norms impose on public agencies. For

instance, should privatecontractors ’ employees have rights to whistle-blowing, privacy, and

liberty that more or less match those guaranteed to government employees by constitutional

law? Should freedom of information, open records, and open meetings lawsbe applied to pri-

vate contractors? Should the public have the same constitutional and administrative law

protections when they deal with private contractors doing outsourced government work as

when they interact directly with government agencies? Our wider purpose is to bring such

questions to the forefront of public policy discussion and decision making regarding compet-

itive sourcing and outsourcing. Wehope to frame the issues cogently for the public adminis-

tration community in the interests of promoting a more comprehensive and thoughtful

assessment of privatizing, one that brings public administrative expertise to the forefront of

determining when and how to apply constitutional and administrative lawnorms to govern-

ment contractors.

THE ABSENCE OF CONSTITUTIONAL AND ADMINISTRATIVE LAW

NORMS IN THE PRIVATE SECTOR: SOME ILLUSTRATIONS

Apart from the Thirteenth Amendment’s prohibition of slavery and involuntaryservitude

other than as criminal punishment, the U.S. Constitution does not apply to purely private

relationships. As the Supreme Court reiterated in 1988, “Embedded in our Fourteenth

Amendment jurisprudence is a dichotomy between state [governmental] action, which is

subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against

which the Amendment affords no shield, no matter how unfair that conduct may be”

(National Collegiate Athletic Association v. Tarkanian, 1988, p. 191). A relatively narrow

breach of this dichotomy, analyzed infra, occurs when a private entity becomes a state (i.e.,

governmental) actor for constitutional purposes and is therefore subject to constitutional

constraints. Under federal constitutional law, five general types of public-private involve-

ment are most likely to transform a privateparty into a state actor: (a) privateengagement in a

public function, as defined by the courts; (b) government control of an ostensibly private

party; (c) coordinated joint public-private participation in an activity; (d) entwinement of

governmental and private actors to the extent that theyfunction as a single organization; and

(e) empowering private entities to use government’s coercive power such as the power to

seize assets. State-level constitutional law draws similar distinctions between governmental

and private action, although variation in specific applications is to be expected.

For the most part, administrative lawalso incorporates a dichotomy between governmen-

tal and nongovernmental activity.Except with respect to formally consti tuted advisory com-

mittees and negotiated rulemaking committees, federal administrative law—including its

provisions for freedom of information, open meetings, enforcement proceedings, and public

104 ARPA / June 2005