Emory Law Journal

Volume 67Issue 2
Comment

Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers

Fiona O'Carroll | 67 Emory L.J. 293 (2017)

Under the Federal Activities Inventory Reform (FAIR) Act of 1998, the federal government’s “inherently governmental functions” must be performed by government actors, while its “commercial activities” may be performed by private contractors. This statute has important implications for the legality of privately operated federal prisons and immigration detention centers. If operating prisons and detention centers is an inherently governmental function within the meaning of the FAIR Act, then these facilities cannot be operated by private contractors. This Comment provides a comprehensive legal analysis of whether the operation of prison and detention facilities is an inherently governmental function.

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