Document Type

Article

Publication Date

2016

Abstract

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS's vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. Part II demonstrates that these homeland security gaps outweigh the structural and budgetary concerns that have been used to justify the widespread delegation of federal security to private contractors. Part III analyzes the legal authority for FPS privatization and recognizes that the current excessive privatization and its resulting homeland security gaps is inconsistent with the legislative intent of the DHS Act. Despite Congress's legislative intent, the Department has broad legal authority to privatize under statutory law and this does not violate executive branch policies regarding privatization. Part IV considers the constitutional law concerns that excessive privatization raises and suggests that, despite judicial reluctance to enforce a limit on privatization based on the nondelegation doctrine, limitations should bar privatizing the FPS to the point that homeland security is severely undermined. The privatization of government-here, through the expansive and broad privatization of the FPS security functions undermines our core precepts regarding democratic governance and our constitutional structure.

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