Cullen Merritt, Assistant Professor, SPEA, IUPUI
Julia Carboni, Associate Professor, Syracuse University
Deana Malatesta, Associate Professor, SPEA Bloomington
Sheila Suess Kennedy, Professor, SPEA, IUPUI
abstract
Deciding whether to advance public policy goals through government’s own employees or a third-party surrogate can be a complex undertaking largely because legal and policy actors will ask two very different questions: lawyers will ask “did government or someone who can be considered a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of how the concept of “public” has evolved in administrative and legal practice. We analyze the evolution of “public” as defined by the Executive branch in OMB Circular A-76 and the parallel evolution of the judiciary’s “public function” test in state action cases. Comparison of the administrative and legal frameworks in this area offers important insights into the tension between the two. Conceptual knowledge in this area is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions.
INTRODUCTION
Public administration scholars have long sought to develop the concept of “public” (e.g., Bozeman 1987; Moulton 2009; Perry and Rainey 1988; Rainey, Backoff, and Levine 1976). Past efforts have focused on legal ownership (i.e., government versus private), modes of governance, and sources of authority (e.g., government regulation) as ways to distinguish between public and private actors. More recent efforts attempt to reconcile the judiciary’s understanding of state action with public administration scholars’ conceptions of public (Malatesta & Carboni 2014). This task is complicated by the fact that legal and policy actors are asking two very different questions: lawyers will ask “did government or a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of the differences between legal and policy concepts of “public” and how those concepts have developed over time.
We analyze the evolution of public as defined by the Executive branch in OMB Circular A-76, and the evolution of the judiciary’s application of the “public function” test for purposes of the state action doctrine. OMB Circular A-76, “Performance of Commercial Activities”, is a federal document that provides guidance to those charged with determining how government will deliver and oversee “commercial” activities; the emphasis is on enhancing productivity and efficiency. The Circular also provides guidance on distinguishing between commercial activities and “inherently governmental functions” that should be performed by government employees because they are “so intimately related to the public interest as to mandate performance by government employees.”
Though the courts do not have a singular definition of “public,” a subset of state action doctrine cases focus on the discharge of what the Supreme Court designates as public functions. The state action doctrine is a legal principle used by the courts to distinguish between public and private actors for the purpose of assessing constitutional compliance. Courts must decide whether conduct at issue is attributable to the state, making defendants potentially accountable to constitutional restrictions that apply only to state actors. The jurisprudence of state action lacks clarity and consistency, and has been the subject of considerable legal scholarship and debate (Barak-Erez 1994; Carboni and Malatesta, 2014), but that debate has occurred with little or no cross-fertilization with either the policy literature or varying Executive branch directives.
This paper contributes to the growing literature on public-private distinctions. Our contribution is unique, however, in that it traces the parallel historical evolution of “inherently governmental functions” and “public functions” as defined in administrative and legal contexts, respectively. Public administration scholars should be aware of both concepts, recognize the differences between them, and understand the implications of those differences for policy implementation. This issue is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions (e.g., operation of jails, state parks, and delivery of certain social services). We end the paper with a discussion of the implications resulting from the tension between inherently governmental functions and public functions for public administrators, with special emphasis on challenges in the contracting environment.
INHERENTLY GOVERNMENTAL FUNCTIONS ACCORDING TO THE A-76 CIRCULAR
Inherently governmental functions are those activities that federal law and policy have required to be performed by government employees, rather than by contractors or other non-governmental actors. Though public administration literature has addressed the definition of inherently governmental functions to a limited extent, it has neglected documentation of the gradual but significant changes in the federal definition over the years. Instead, the literature has focused upon issues of accountability (Gilmour and Jensen 1998; Kettl 1997), the ethical/moral nature of outsourcing (Verkuil 2007), outsourcing and discretion in implementation of inherently governmental functions (Rosenbloom and Piotrowski 2005), and methods of managing contracts for complex products and services that involve contractor discretion (Brown, Potoski and Van Slyke 2009).
The definition of an inherently governmental function was originally designed for the purpose of distinguishing between commercial functions, defined as those that could properly be outsourced to non-governmental employees, and functions that should continue to be performed by government’s own employees. Criteria for identifying inherently governmental tasks have undergone changes as public administration distinctions between what is public and what is private have evolved. The resulting definitions are broad and vague, providing general parameters to assess whether a function should be considered inherently governmental or commercial.
Although the literature has not been focused upon the nature of inherently governmental functions, its treatment of those functions has evolved along with general trends in public administration research. Beginning with Wilson’s politics-administration dichotomy, traditional public administration has been concerned with issues of leadership and executive action in the public sector; the scholarship advocated a separation between politics and administration, improved efficiency in the public sector, and improved service production through better management (Wilson 1887). Later work emphasized application of general management principles to the public sector in order to improve the efficiency and professionalism of public administration (Gulick, 1937, Urwick 1945). In the 1960s, public administration shifted from an emphasis upon rational actor models and began to consider the human aspects of decision making. The New Public Administration that emerged during this period was largely a rejection of the traditional approach to public administration and, instead, prized social equity, citizenship, and the provision of services to citizens (Waldo 1968). Beginning in the 1980s, scholars in the field embraced New Public Management, a model that advocated a return to general management theory and private sector approaches to service delivery. Contracting out was seen as a way to cut red tape and make government more efficient (Osborne and Gaebler 1993). More recently, there has been a shift back to consideration of democratic values, responsiveness to citizens, and effectiveness, and an emerging emphasis on governance by complex arrangements of actors rather than by public agencies (Bryson et al. 2014; Denhardt and Denhardt 2000; Stoker 2006).
Confounding administrators’ decisions about what may be properly contracted out are two interrelated definitions of inherently governmental functions in US federal law. Those definitions are detailed below. Both begin with the same assumption: certain activities are the domain of government only, and others, considered commercial, can properly be outsourced. A detailed account of the changing understanding of “inherently governmental” from the executive branch perspective can be seen through examination of OMB Circular A-76 and policy letters meant to clarify and expand upon that Circular, namely the Federal Activities Inventory Reform (FAIR) Act of 1998. The FAIR Act of 1998 defines an inherently governmental function as “a function so intimately related to the public interest as to require performance by Federal Government employees.” The FAIR Act requires executive agency compliance with the longstanding OMB Circular A-76 approach to the definition of inherently governmental functions. Its primary focus is on requiring executive agencies to use competitive contracting processes in order to produce the most efficient and cost effective result, particularly in areas where functions were previously discharged by government employees. It also requires executive agencies to report on their commercial activities to both Congress and the public.
The FAIR Act does not specify an exhaustive list of functions that are to be considered inherently governmental; rather, it identifies inherently governmental functions as those that will “require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgements relating to monetary transactions and entitlements.” (31 U.S.C, Section 501). The Act recites that inherently governmental functions are those that: bind the United States federal government by contract, policy, or regulative activities; determine, protect, and advance US property and interests by military or diplomatic action or judicial proceedings; affect the life, liberty, or property of private individuals; control federal employees; or control federal property, including acquisition, use, or disposition. These broad parameters provide a framework for determining what is inherently governmental rather than specifying activities that must be considered inherently governmental. This broad approach is consistent with the OMB Circular A-76 definition.
OMB Circular A-76, “Performance of Commercial Activities”, is a federal document intended to provide guidance on government delivery of activities deemed to be commercial. It is focused upon enhancing productivity and efficiency, and it offers guidance on making a determination of whether it will or will not be appropriate to rely on the commercial sector. OMB Circular A-76 defines an inherently governmental function as “an activity that is so intimately related to the public interest as to mandate performance by government personnel.” Notably, in A-76, inherently governmental functions are defined in contrast to commercial activities. Like the FAIR Act, Circular A-76 does not provide a list identifying inherently governmental functions; it defines inherently governmental functions as those that require discretion in applying government authority or functions which require value judgments in making decisions on behalf of government, and leaves the task of specifying those functions to the agencies, requiring the creation of agency inventories: “An agency shall prepare two annual inventories that categorize all activities performed by government personnel as either commercial or inherently governmental.”
The Executive Branch’s definition of what should be considered inherently governmental has changed over time, as the following timeline illustrates.
1955 The Eisenhower Administration’s Bureau of the Budget (predecessor of OMB) establishes federal policy to obtain goods and services from the private sector. This policy, Bulletin No. 55-4, was the first version of the Circular A-76 and states that the government would depend on the private sector for the performance of commercial activities.
1966 Bulletin 55-4 was developed into formal policy under the new name, Circular A-76, by the OMB. The document restated the policy and reiterated the principle that the government should not compete with its citizens.
1967 OMB Circular A-76 was revised under the Eisenhower Administration to provide formal guidelines for cost comparison procedures.
1970 Reorganization Plan No. 2 of 1970 and Executive Order 11541.
1979 Circular A-76 was revised to recognize that some functions must be performed by government personnel, but recognized that in other cases contractor performance may be cheaper and more effective. It considered whether an agency had a requirement to contract out non-inherently governmental functions.
1983 OMB A-76 was reissued to simplify the cost comparison process under the Reagan Administration. Procedures were also set in place to reestablish the initial objective of the Eisenhower administration so that commercial activities previously performed by the government could be outsourced to private companies.
1990 Chief Financial Officers Act of 1990 (CFO Act) was signed by the George H.W. Bush Administration to improve financial management by calling for the development and reporting of cost information and systematic measurement of performance.
1992 Office of Federal Procurement Policy Letter 92-1.
1993 Government Performance and Results Act (GPRA) mandated performance measurement by Federal Agencies.
Statement of Federal Financial Accounting Concepts No. 1, “Objectives of Federal Financial Reporting”, stated that Federal financial reporting should provide useful information to assess the budget integrity, operating performance, stewardship, and control of the Federal Government.
1995 Federal Accounting Standards Advisory Board (FASAB) recommended standards which produce the Statement of Federal Financial Accounting Concepts No. 4. Concept No. 4 provides standards for managerial cost accounting.
1996 Circular No. A-76 Revised Supplemental Handbook was produced, replacing the supplement issued with the 1983 Circular. The handbook provided updated guidance and procedures for determining whether reoccurring activities should be contracted with commercial sources, kept in-house using Government facilities and personnel, or advanced through inter-service support agreements (ISSAs). The revision added: (1) balance the interests of parties to make or buy cost comparisons, (2) provide a level playing field between public and private offerors, and (3) encourage competition and choice in management and performance of commercial activity.
1998 Federal Activities Inventory Reform (FAIR) Act of 1998 was introduced. The FAIR Act required the head of each executive agency to submit a list of activities performed by federal government sources to the Director of OMB and Congress. This helped prepare executive agencies to evaluate cost efficiencies using the A-76 strategy.
1999 OMB updated the Revised Supplemental Handbook. Revisions outlined that the government can engage in inherently commercial activities if the function is critical to combat effectiveness, if mission effectiveness will suffer because of outsourcing, if a commercial source is not available or does not meet government requirements in a timely manner, if another Federal agency can provide the goods/services, if outsourcing would result in a higher cost to the government, or if items were inherently governmental in nature.
2001 Competitive sourcing through A-76 was identified as a major initiative by the George W. Bush Administration’s Presidential Management Agenda (this initiative was defined by debate/criticism over A-76 competitions; the private sector maintained that the public sector and its employees had the greater advantage under A-76). This included a goal of controlling 50% of the commercial activities operated by federal agencies completed via the competitive sourcing process.
2003 OMB issued the current version of A-76, superseding the prior Circular and any related guidance. Revisions to OMB Circular A-76 made it friendlier to the federal worker by getting rid of presumption that all commercial activities in government belong in the private sector. The goal was to get the best value for the citizen irrespective of who performs the work. Revisions were intended to simplify, clarify, and standardize the execution of the A-76 process.
A significant amount of Circular A-76 competitions occurred between 2003 and 2008 in most Federal agencies.
2007 Public debate ensued over the Walter Reed Army Medical Center in Washington, DC in which living conditions and frustrations of soldiers were reported by the Washington Post. Both administration and bureaucratic failures were concluded to be factors contributing to poor conditions. The public debate led to the prohibition of the conduct of A-76 competitions at military medical facilities, which ultimately led to a moratorium on the conduct of A-76 competitions government-wide. There was concern that some A-76 activities should be considered inherently governmental and should only be performed by federal employees in the DOD.
2008 Congress passed legislation that suspended ongoing public-private competitions for DOD (Section 325 of the National Defense Authorization Act [NDAA] for FY2008) until September 30, 2008.
2009 President Obama signed into law the FY2009 Omnibus Appropriations Act (Sections 212 and 737) which suspended all new, government-wide OMB Circular A-76 studies through FY2009. DOD can use only competitive sourcing to determine how to best accomplish work that is not currently performed by federal employees. The Omnibus Appropriations Act directs OMB to “clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the 2009 NDAA.”
2009 “Managing the Multi-Sector Workforce” Memorandum. This memorandum “provides initial guidance to help agencies improve their management of the federal government’s multi-sector workforce” by requiring agencies to:
- Adopt a framework for planning and managing the multi-sector workforce that is built on strong strategic human capital planning.
- Conduct a pilot human capital analysis of at least one program, project, or activity, where the agency has concerns about the extent of reliance on contractors.
- Use guidelines that facilitate consistent and sound application of statutory requirements when considering in-sourcing.
2010 Section 735 of Consolidated Appropriations Act FY2010 imposed a moratorium prohibiting certain federal agencies from initiating or announcing a new public-private competition under OMB Circular A-76 through Sept. 30, 2010.
Section 325 of the NDAA for FY2010 established a review and approval process from recommencing DOD private-public competitions. Section 322 and 325 of NDAA FY2010 required GAO to assess DOD’s report on public-private competitions and its use of authority to extend the 24-month time limit on the conduct of A-76 competitions.
In Section 8117 of Department of Defense Appropriations Act of FY2010, Congress prohibited any spending of FY2010 funds to conduct public-private competitions under A-76.
2011 In Section 323 of Ike Skeleton National Defense Authorization Act for FY2011, Congress prohibited the Secretary of Defense from establishing quotas or goals for converting functions performed by DOD civilian employees to contractors unless based on research and analysis required by title 10 United States Code.
In the Consolidated Appropriations Act FY2011, federal agencies cannot initiate or announce new public-private competitions (Section 8103 of P.L. 112-10).
2011 Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions”, prohibited outsourcing “inherently governmental functions” and cautions against outsourcing functions “closely associated with inherently governmental.”
2012 Technical correction to Policy Letter 11-01 made “to clarify that the Policy Letter applies to both Civilian and Defense Executive Branch Departments and Agencies.”
In Section 733 of P.L. 112-74, The Consolidated Appropriations Act for FY2012 prohibited funds from being used to begin/announce a study of public-private competition.
Obama Administration FY2013 Budget Request sought to prohibit conduct of future public-private competitions under circular A-76.
2013 Prohibition is continued.
2015 Prohibition is continued.
THE STATE ACTION DOCTRINE AND THE DEFINITION OF PUBLIC FUNCTION
In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and the private sector, including civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors. Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government, and where social entitlements frequently are embedded in the constitution.
As a result of the United States’ approach, sometimes called “negative liberty”, a transfer of authority to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of governmental authority are fundamental to the United States’ political and constitutional order (Kennedy 2012). “The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted” (Kennedy 2012, 1). The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be categorized as governmental (Kennedy 2012). The result, in the opinion of many scholars, has been a loss of essential governmental accountability and thus legitimacy (Brown 2008; Metzger 2003; Kennedy 2001; Gilmour and Jensen 1998).
In making a determination whether state action is present, the courts will consider a number of elements, including but not limited to whether the function in question has traditionally been performed exclusively by government. As the practice of contracting out has grown, courts have increasingly been faced with cases in which the presence of state action sufficient to impose legal liability is less than clear-cut; accordingly, the question of what constitutes a public function for purposes of constitutional jurisprudence has changed over time. The inconsistencies of those changes have prompted calls for clarity from lawyers and legal scholars alike.
Current Status of the Relationship between State Action and Public Function
The Supreme Court has not discarded the idea that some governmental activities are in fact inherently “public functions.” It has, however, over time changed its approach to defining what those activities are, and not in a coherent fashion. In 1992, Justice Scalia began his state action analysis in the case of Lebron v. National Railroad Passenger Corporation with an observation that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.” It is hard to disagree, and subsequent jurisprudence has not remedied the problem.
In the early 1940s, “the Court first expanded the meaning of state action to include private actors performing a government function (Smith v. Allwright 1944) and private action in which the state is significantly involved” (Peretti 2010, 273). Since Marsh v. Alabama in 1946, however, the Court has been wary of too expansive an application of the state action doctrine in public function cases (Wirth 2014). The evolution of legal doctrine defining what the courts will consider to be a public function can be seen not only when the Court finds a particular defendant a state actor, but also when it declines to do so. For example, despite the common assertion that state action will be found when government exercises its coercive power or has provided significant encouragement of the decision at issue, in Blum v. Yaretsky, the Supreme Court declined to find state action even though the private nursing home’s medical personnel were obeying specific government regulations. The ruling in Blum v. Yaretsky, among other cases, highlights the reluctance of the courts to deem private parties state actors. Today, courts will typically find state action under the public function test when three conditions are present: (1) the activities have traditionally been performed only by government; (2) the private actor’s undertaking of the activity substantially replaces the government’s traditional performance of the function; and (3) the private activity is substantially aided by the state.
The Evolution of Public Function Application in State Action Cases
In a number of rulings, the Supreme Court has found private actors’ performance of governmental functions sufficient to make these parties agents of the state. Judicial decisions focused upon state action and public function have centered on the First, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution although, theoretically, state action may be found when any constitutional provision is at issue. The rather limited set of issues on which the Court has based its rulings in this area suggests that the Court is more likely to find state action when the liberty interest involves freedom of speech, cruel and unusual punishment, equal protection and due process, and the right to vote, as Table 1 illustrates.
Cases implicating civil rights, especially the right to vote, led to the birth of state action doctrine and the legal interpretation of public function. In two foundational cases, the court held that conducting elections is “exclusively a state function and invalidated racial discrimination by non-governmental groups (political organizations or parties) who exercised effective control over the selection process of candidates in a primary or pre-primary process” (Hunter, Shannon, McCarthy 2013, 67). In Smith v. Allwright (1944), the Democratic Party of Texas, a voluntary organization, was held to be a state actor when Smith, a black man, was denied the right to vote on the basis of his race. Because the state of Texas governed the selection of party leaders at the county level, the practice of racial discrimination in elections was considered a violation of constitutional rights by the state. In Terry v. Adams (1953), a private association denied a citizen the right to vote on the basis of race. The Supreme Court upheld the precedent in Smith: if a private political party is authorized to influence the outcome of an election, which is a function of government, the private actor will be found to be an agent of the state subject to the Fifteenth Amendment. Smith v. Allwright and Terry v. Adams established that most, albeit not all, election functions traditionally performed by government will be deemed to be public functions.
Court rulings grounded in the First and Fourteenth Amendments (and on two occasions the simultaneous violation of both) (Marsh v. Alabama 1946 and Amalgamated Food Employees v. Logan Valley Plaza 1968), further developed the state action doctrine following the early civil rights cases. In multiple cases, court rulings extended the doctrine beyond government actions to encompass functions that the Court deemed “governmental in nature”. In Marsh v. Alabama, a Jehovah’s Witness disseminated religious literature near a post office in Chickasaw, Alabama, a company town, without obtaining permission from the Gulf Shipping Corporation, the owner and operator of the town. The question before the court was whether the State of Alabama violated Marsh’s constitutional rights under the First and Fourteenth amendments when she was arrested for distributing religious material. In a 5-3 ruling, Justice Hugo Black emphasized that owners of privately held bridges, ferries, turnpikes, and the like may not operate them as exclusively private entities. Rather, because these facilities are built and operated primarily for the benefit of the public and are governmental in nature, they will be subject to state regulation and required to operate in a constitutionally appropriate manner. Even though Chickasaw, Alabama was a “company town” owned and operated by a private corporation, the court emphasized the town’s numerous public attributes, including the fact that the town’s policeman was a deputy from the Mobile County Sheriff’s Department. In Evans v. Newton (1966), the Court built upon the precedent set in Marsh and held that prior governmental involvement in the operation of the public space compelled a finding of state action; the case revolved around the use and maintenance of a tract of land which had been willed to the City of Macon, Georgia in 1911, to be used as a park for white people only.
Freedom of speech was the central constitutional issue in Amalgamated Food Employees v. Logan Valley Plaza (1968). The Court was faced with a case concerning a protest occurring at a shopping center that maintained common areas, including parking lots and driveways; the question was whether the premises were public or private for purposes of evaluating protestors’ Free Speech rights. The Court concluded that individuals may peacefully protest based on their First Amendment rights, since the shopping center was the “functional equivalent” of the business district of a town. Citing Marsh, the Court used the case to further clarify its application of the state action doctrine and the degree to which it will consider common areas sufficiently public to justify constitutional analysis. The more an owner opens private property to public use, the more the owner’s private rights become limited by the rights of the individuals who use it (Amalgamated Food Employees v. Logan Valley Plaza). Legal scholars consider the precedent set in Amalgamate Food Employees v. Logan Valley Plaza the high-water mark of the public function theory (Huss & Simmons, 1976); the difficulty of balancing the competing public and private rights involved becomes apparent in subsequent litigation. The Court would revisit the issue four years later in Lloyd Corp. v. Tanner (1972), and would reverse course in Hudgens v. NLRB (1976).
The court held in Lloyd Corp v. Tanner (1972) and Hudgens v. NLRB (1976) that exclusively private property is not public property just because the public is invited to use the property for its intended purpose. In addition, due process guarantees will not apply to a plaintiff in situations where the state merely acquiesces to private actions (Flagg Bros v. Brooks 1974); when an action is not traditionally or exclusively reserved to the state (Jackson v. Metro Edison 1974); and when no symbiotic relationship exists between the state and private party (NCAA v. Tarkanian 1988; Baker v. Kohn 1982; San Francisco Arts & Athletics v. US Olympic Commission 1987).
In West v. Atkins (1988), a Fifth Amendment case in which a private contractor provided health care services to prisoners for a state hospital, the contractor was operating under state authority and was found to be a state actor performing a public function. In Edmonson v. Leesville (1991), the Court held that the right to trial by a fair and impartial jury is a guarantee issued by government, and the fact that private litigants dictated race-based exclusions during jury selection process would not deprive the litigant of a that constitutional guarantee. When private actors participate in the selection of jurors, they serve a vital function within the government and are agents acting under its authority.
Careful consideration of the issue of state action should be a critical component of decisions by government agencies to contract out. Both the government and the contractor need to understand whether and under what circumstances the contractor’s actions will be legally attributable to the government, and where the ultimate liability will lie in the event of a successful lawsuit by a third party.
[Table 1 about here]
DISCUSSION AND CONCLUSIONS
“The development of a coherent and comprehensive understanding of state action begins with a multi-issue inquiry (ideally by all branches at all levels of government) into the nature of every transfer of government authority.” (Gilmour and Jensen 1998, 25). Inquiry is necessary at three points—when the decision to delegate authority is made, during administrative oversight, and during judicial review. OMB Circular A-76 is concerned with the first point, the initial decision to contract out. It outlines a broad set of criteria to determine whether or not a function is appropriate for outsourcing or should be discharged by government through its own employees. A-76 approaches that inquiry based on issues involving discretion and authority, rather than history. In contrast, the courts’ “public function” test is applied to a situation in which that initial determination has already been made. Courts must determine whether the private entity employed by government was functioning as a state actor, justifying a finding of state action for the purpose of settling claims arising out of action that has already occurred. In the process of assessing the public function test in order to determine the presence of state action, the courts look at several factors, including whether the activity in question has traditionally been performed exclusively by government.
These two approaches, the administrative and the legal, can complement each other, with A-76 providing guidance to public administrators as to whether or not something is a government function – even if it has been contracted out (state action can be attributable to private actors). Even if the Executive Branch approach to defining public function differs from the more limited instances in which the courts will find state action, recognizing the circumstances within which the courts will assess liability will inform contract negotiations and drafting, and avoid inadvertent assumptions of liability. The courts have established a high bar for determining which functions are “public functions” and for determining when a contractor will be found to be a “state actor.” Understanding this jurisprudence may help both government and those with whom they contract to insulate private actors from constitutional claims that would apply if government performed the same functions (Buchanan et al. 1997), without inadvertently depriving citizens of constitutional protection.
Furthermore, encouraging those acting on behalf of the Executive Branch to familiarize themselves with what the courts have held in order to rationalize their respective definitions of public function is also important; when government is engaging in outsourcing, those responsible need to understand how their administrative decisions will be reviewed and interpreted in the event of litigation. What makes this particular inquiry difficult, and may account for what seems to be an existing disconnect between the Executive Branch definition and the legal doctrine, is the lack of specificity of the former and the lack of clarity of the latter. The legal scholarship critiquing the Court’s state action jurisprudence and pointing to the practical problems raised by the incoherence of that jurisprudence is copious. When we counsel public administrators to follow the guidance of the courts, we assume that the courts are actually offering that guidance. When the various tests applied by different Circuit Courts differ from each other and from cases decided by the Supreme Court, guidance is hard to come by.
As Brown’s (2008) law review article concluded, “Balancing the United States Supreme Court’s tests with individual circuits’ applications of these tests, all while carefully excluding inapplicable precedents” (581) is a difficult analytical task facing courts in modern state action cases.
Losing the court’s favorability in recent decades, due in part to the judiciary’s utter confusion with this area of the law, modern courts are hesitant to authoritatively find state action. The state action doctrine is slowly descending into utter confusion, where private parties remain unaware of what conduct subjects them to Constitutional restrictions, and courts are unclear as to the appropriate state action standard. The time has come for the United States Supreme Court to declutter the state action doctrine by combining tests, shedding unnecessary terminology, demystifying the state action doctrine, and giving the lower courts a tangible standard with which to work (581)
The lower courts would not be the only beneficiaries of such clarification. Public administrators and private contractors could base contracting decisions on accessible and consistent guidelines, and (in an ideal world) citizens could be confident that protection of their constitutional liberties was an important and conscious element of governmental contracting decisions.
Clearly, the advancement of public policy objectives is “not the exclusive province of government, nor is government the only institution having public obligations, [though clearly] government has a special role as a guarantor of public value” (Jorgensen and Bozeman 2007, 373-374). As a guarantor of inherently governmental functions and public functions and primary contributor to the public value that emerges from these activities, government will benefit from resolving the tension between administrative and legal conceptions of public.
Cases cited
Smith v. Allwright, 321 U.S. 649 (1944).
Marsh v. State of Alabama, 326 U.S. 501 (1946).
Terry v. Adams, 345 U.S. 461 (1953).
Evans v. Newton, 382 U.S. 296 (1966).
Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
Blum v. Yaretsky, 457 U.S. 991 (1982).
Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
San Francisco Arts & Athletics v. United States Olympic Committee, 483 U.S. 522 (1987).
Hudgens v. NLRB, 424 U.S. 507 (1766.)
National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).
West v. Atkins, 487 U.S. 42 (1988).
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
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Table 1
Supreme Court Rulings on State Action Cases involving Public Functions
| Year | Case | Finding of state action? | Public Function |
| 1944 | Smith v. Allwright | yes | elections |
| 1946 | Marsh v. State of Alabama | yes | public space (in company-owned town) |
| 1953 | Terry v. Adams | yes | elections |
| 1966 | Evans v. Newton | yes | public space (desegregation of park) |
| 1968 | Amalgated Food Employees v. Logan Valley Plaza | yes | public space (trespass on private property) |
| 1972 | Lloyd Corp. v. Tanner | no | public space (trespass on private property) |
| 1974 | Flagg Bros., Inc. v. Brooks | no | public space (trespass on private property) |
| 1974 | Jackson v. Metropolitan Edison Co. | no | utility |
| 1976 | Hudgens v. NLRB | no | public space (trespass on private property) |
| 1982 | Blum v. Yaretsky | no | state subsidized healthcare |
| 1982 | Rendell-Baker v. Kohn | no | education |
| 1987 | San Francisco Arts & Athletics v. United States Olympic Committee | no | national interests |
| 1988 | National Collegiate Athletic Association v. Tarkanian | no | due process |
| 1988 | West v. Atkins | yes | state subsidized healthcare |
| 1991 | Edmonson v. Leesville Concrete Co. | yes | civil trial jury selection |
That…..Is a lot to take in.
Let all of us remember that these comments comparing George W. with Trump are just that; comparative comments. He cannot ever again be president; no one here today has expressed the wish to have him return to the White House. We mean he would be better than a poke in the eye with a sharp stick,to use an old childhood quote.