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Blake Emerson, Public Care in Public Law: Structure, Procedure, and Purpose, 16 Harv. L. & Pol. Rev. 35 (2022).

A “politics of care” has gained prominence in policy advocacy responses to the pandemic and the broad social and economic displacements and inequities it has caused and revealed. Policies such as universal preschool, funding for childcare facilities, tax credits for child and elder care, criminal justice reform, addressing systemic racism, and rebuilding of public infrastructure have been justified as ways to recognize that caregiving, which allows us all to survive, grow, and flourish, is a primary public value. Indeed, on the precipice of winning the presidency, Joe Biden embraced a vision of the President’s responsibility that includes a “duty of care for all Americans.”

In Public Care in Public Law: Structure, Procedure, and Purpose, Blake Emerson seeks to translate the growing resonance of the “politics of care” into an animating principle of public law, grounding U.S. statutory, administrative, and constitutional law in a legal principle of public care that obligates public officials to attend to the needs and values of those they govern. Emerson’s account is both descriptive and normative. He makes the case that the public care principle can be found in existing statutory, administrative, and constitutional law. And his project in this piece is to foreground that principle and claim its essential primacy.

First, Emerson argues that public care is a dominant purpose of statutory regulation, in that regulation is a primary vehicle by which the state provides the goods and services necessary for citizens to exercise moral and political agency. Emerson locates this purpose in the political theory of Progressive Era reformers who shaped the American welfare state. He then shows how the public care norm threads through the subsequent enactment of major regulatory programs such as Social Security, Medicare, Medicaid, and the Affordable Care Act (albeit unevenly).

Second, Emerson maintains that public care is a foundational procedural principle in administrative law. He interprets entrenched procedural requirements such as public participation, reasonableness, and reason-giving as obliging federal agencies to act with proper consideration of the interests of affected parties: “Administrative law, at bottom, aims to ensure that government action is attentive and responsive to human concerns. Agencies must care—and show that they care—about the people their policies impact.”

Finally, Emerson reads the Take Care Clause to require that the President consider the views of subordinate officials delegated specific legal authority or acting pursuant to relevant professional or expert authority. He anchors this conception of structural-constitutional care in Article II of the Constitution, which provides that the President “shall take Care that the Laws be faithfully executed.” He argues that this clause confers a “caretaking obligation” on the President that entails “a responsibility to defer to and respect the reasonable judgments of other officials while maintaining the integrity of law-administration as a whole.” In Emerson’s conception, structural-constitutional care is a crucial element of the general principle of public care not only because it requires one particular official—the President—to take into account the interest, viewpoints, and values of other officeholders, but more importantly because it models for the public an ethic of respectful, deliberative, and mutually responsive decision-making that can help advance more broadly public care values.

Emerson certainly recognizes the limitations of his descriptive account. Although the big statutory welfare programs he discusses provide support, benefits, and services that enable human flourishing, they embody an ethic of individual choice and responsibility that tends to efface rather than advance the ethic of public care. His account of administrative procedure as a vehicle for dialogue that is meaningfully attentive to the human cares and concerns of all affected parties is belied by empirical accounts of administrative participation and impeded in concept by significant structural inequalities across regulatory constituencies and procedural constraints on agencies. And, of course, his understanding of the Take Care clause is highly contested, not least by a majority of sitting Supreme Court justices.

To be frank, I am not sure that I am persuaded by Emerson’s descriptive or normative case for the public care principle. But I deeply appreciate his project for the questions it explicitly raises and the questions it provokes. He is confronting vexing questions about the moral content of law that have long been elided in administrative law scholarship: Do administrative and structural constitutional law have some irreducible moral content? If so, what is it? How do we know? Where should we look for it? In this sense, Emerson’s article is an important contribution to what I am coming to see as a moral turn in administrative and constitutional law, exemplified by works like Adrian Vermeule’s Common Good Constitutionalism and Alan Rozenshtein’s The Virtuous Executive.

Emerson has distinctive answers to these questions that can serve as a generative springboard for dialogue across perspectives. For instance, he looks to positive law to supply the moral content that comprises the public care principle. This is in stark contrast to Vermeule, who insists that the moral content of the law lies beyond positive law. Similarly, in contrast to Vermeule’s embrace of hierarchy as an essential basis of natural law, Emerson’s public care principle depends on an ethic of anti-hierarchy grounded in feminist theory. To be clear, Emerson does not frame his project as a critique or extension of Vermeule’s work. But, for me, it illuminates the potential to leverage the contrasts across different conceptions to think more comprehensively about the moral content of law. For instance, while anti-hierarchical values might be necessary to construct Emerson’s ethic of public care, it is not clear that his vision of public care can be executed as a principle of law and governance without hierarchy. Are there types of hierarchy that are consistent with the public care principle? I am grateful for Emerson’s contribution to these conversations, and I look forward to watching them evolve.

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Cite as: Jodi Short, Legalizing the Politics of Care: The Search for the Moral Foundations of Administrative Law, JOTWELL (September 30, 2022) (reviewing Blake Emerson, Public Care in Public Law: Structure, Procedure, and Purpose, 16 Harv. L. & Pol. Rev. 35 (2022)), https://adlaw.jotwell.com/legalizing-the-politics-of-care-the-search-for-the-moral-foundations-of-administrative-law/.