Blake Emerson, UCLA School of Law, has posted Public Care in Public Law: Structure, Procedure, and Purpose, which is forthcoming in the Harvard Law & Policy Review:
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 and advance the needs and values of those the law binds and benefits. This principle has three components. The regulatory purpose of public care, which is recognized in various statutory authorities of the welfare state, re-quires 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 together offer an attractive picture of what the administrative state ought to do and how it ought to do it. Public care offers an approach to administrative regulation that differs from other now dominant approaches, such as presidential administration and economic cost-benefit analysis. The practice 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.
--Dan Ernst
