Public Care in Public Law: Structure, Procedure, and Purpose

50 Pages Posted: 16 Aug 2021 Last revised: 21 Dec 2021

Date Written: August 13, 2021

Abstract

This Article responds to recent mobilization around the “politics of care” by articulating a
legal principle of public care within U.S. constitutional, statutory, and administrative
law. Public care requires executive officials to attend to the needs and values of those who
have a stake in law’s administration. This principle has three components. The regulatory
purpose of public care, which is recognized in various statutory authorities of the welfare
state, requires government to provide those goods and services that are necessary for people
to exercise moral and political agency. The administrative procedure of public care, which
is recognized by the Administrative Procedure Act of 1946, requires that federal agencies
act with due regard for the interests and input of affected parties. The constitutional
structure of public care, recognized by the Take Care Clause, requires that the President
listen to subordinate officials who have specific legal, professional, and expert authority.
These three dimensions of care together offer an attractive picture of what the administrative
state ought to do and how it ought to do it. The principle of public care, which is
informed by Progressive political thought and feminist social theory, emphasizes social solidarity,
deliberative policymaking, and official collaboration, rather than executive unilateralism,
instrumental-reasoning, and isolated individualism.

Keywords: administrative law, constitutional law, legislation, health law, Affordable Care Act, feminist theory, progressive political thought

JEL Classification: K23

Suggested Citation

Emerson, Blake, Public Care in Public Law: Structure, Procedure, and Purpose (August 13, 2021). Harvard Law & Policy Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3904948 or http://dx.doi.org/10.2139/ssrn.3904948

Blake Emerson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
1242 Law Building
Los Angeles, CA 90095
United States

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