The Trump Administration has pursued policy through deals with\u00a0the private sector\u2014not as an extraordinary response to extraordinary\u00a0events, but as part and parcel of the ordinary work of government.\u00a0Jobs are being onshored through a series of deals with employers.\u00a0Infrastructure will be built through joint ventures where private\u00a0parties will own and operate assets like roads and airports after\u00a0arranging for government financing assistance. The Administration\u00a0has been staffed with dealmakers and the tone is one of transactional\u00a0administration.<\/p>\n
We evaluate how this transactional administrative state will work\u00a0as a matter of law. Executive action done by deals, instead of rules or\u00a0adjudications, exemplifies the presidentialism celebrated by Justice\u00a0Elena Kagan, Adrian Vermeule, and Eric Posner, but we think it goes\u00a0too far. Because presidential dealmaking risks dispensing with process\u00a0and overly empowers the Executive, we identify ways that it can be controlled\u00a0through principles of transparency, rules of statutory interpretation,\u00a0and policymaking best practices such as waiting periods before\u00a0deal execution and equivalent treatment of similarly situated private\u00a0parties.<\/p>\n