What is Public? Big Questions Emerging from the Clash of Legal and Policy Paradigms

Abstract

Abstract This article draws on three main sources to define the constitutional boundaries for outsourcing public goods and services in the age of new governance: (1) public administration research related to public–private distinctions; (2) Office of Management and Budget (OMB) Circular A-76, federal policy on “inherently governmental” functions; and (3) the State Action Doctrine, the judiciary’s approach for distinguishing state actors from non-state actors for the purpose of redressing constitutional infringements. While these three sources have developed independently, approach the public–private debate from different vantage points, and allow significant ambiguities to remain, we contend that common ground can be leveraged theoretically to derive criteria to resolve many government outsourcing decisions in a way that is efficient and effective. Our main contribution is in providing first steps toward the development of a modern legal and administrative framework that aligns outsourcing theory and practice with the realities of new governance.