About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

35 Clearinghouse Rev. 546 (2001-2002)
Privatized Welfare and the Nondelegation Doctrine

handle is hein.journals/clear35 and id is 546 raw text is: Privatized Welfare and the Nondelegation Doctrine By Dru Stevenson In many states the administrative agencies that operate the panoply of welfare ser- vices have begun to contract with private, for-profit corporations to administer various programs.1 Although the term privatiza- tion can have a wide range of meanings, in this article it refers to the wholesale del- egation of eligibility determinations for wel- fare programs. These arrangements may be with national firms such as Maximus Inc. or small, local providers such as Colonial Cooperative Care in Connecticut. When the government privatizes eligibili- ty decisions for government programs, it implicates a venerable, though seldom- used, doctrine of American constitutional jurisprudence: the nondelegation doctrine, which places constitutional limits on the extent to which the branches of govern- ment may delegate their vested authority to others.2 The doctrine can apply to del- egation from the legislature to administra- tive agencies, from one level of govern- ment to another (such as state-municipal), or delegation to private parties. In this article I survey the nondelega- tion doctrine historically and attempt to dis- tinguish between general categories of cases and their respective treatment by the courts. I should note at the outset that, to date, delegation of government welfare ser- vices to private corporations apparently has not been challenged under the nondele- gation doctrine, and in this article I attempt to advocate a new theory for such a chal- lenge. The discussion will then focus on a few modem cases that seem particularly relevant to the privatization of welfare ser- vices and that could be woven together into a coherent analysis for use by the courts. I finally examine the issues of the private contractors' financial conflicts of interest in light of cases addressing finan- cially interested adjudicators in general. I. Nondelegation Doctrines Governmental delegation falls into three basic categories: delegation from one branch of government to another, typi- cally through an agency or commission; Dru Stevenson is an attorney, Greater Hartford Legal Assistance, 80 Jefferson St., Hartford, CT 06106; 860.541.5017; dstevenson @ghla.org. Nonprofit corporations have also received some of these contracts, but the discussion in this article focuses entirely on the conflicts of interest created by contracting with for- profit corporations. 2 The origin of the nondelegation doctrine or concept is generally credited to John Locke: The Legislature cannot transfer the Power of Making Laws to any other hands. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 380-81 (Cambridge University Press 1981). For discussion of the doctrine, see Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 4 (1983); Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 VAND. L. REV. 1167, 1174 (Oct. 1999); David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1267 (1985). CLEARINGHOUSE REVIEW I JANUARY-FEBRUARY 2002

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most