The Trump Administration has pursued policy through deals with the private sector—not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs are being onshored through a series of deals with employers. Infrastructure will be built through joint ventures where private parties will own and operate assets like roads and airports after arranging for government financing assistance. The Administration has been staffed with dealmakers and the tone is one of transactional administration.

We evaluate how this transactional administrative state will work as a matter of law. Executive action done by deals, instead of rules or adjudications, exemplifies the presidentialism celebrated by Justice Elena Kagan, Adrian Vermeule, and Eric Posner, but we think it goes too far. Because presidential dealmaking risks dispensing with process and overly empowers the Executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as waiting periods before deal execution and equivalent treatment of similarly situated private parties.

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