Today’s Ad Law Reading Room brings two entries. The first is “Presidential Brokering in the Regulatory State,” forthcoming in the George Washington Law Review, by Jennifer Nou. The second is “The Chadha Presidency,” by Josh Chafetz.

Here is Nou’s abstract:

Presidents seeking to make regulatory policy face formidable hurdles, most recently heightened litigation risk, reduced judicial deference, and political polarization. In response, they have increasingly relied upon the Executive Office of the President (EOP), particularly White House policy councils, to lead processes designed to manage these challenges. This Foreword spotlights this practice of presidential brokering, a structured process often led by policy councils such as the Domestic Policy Council (DPC) and National Economic Council (NEC). Brokering involves the delegated authority to generate and test regulatory options through moderated deliberation with the rulemaking agency and other components of the EOP, ultimately shaping select rules to align with the highest presidential priorities.

This Foreword to George Washington Law Review’s annual administrative law issue provides an institutional account of presidential brokering — distinguishing it from more commonly studied mechanisms of administrative oversight over rulemaking, such as regulatory review and executive orders. Through historical and contemporary examples, it illustrates how brokering promotes agency responsiveness through a form of procedural legitimacy and enhances rulemaking quality by leveraging diverse perspectives within the EOP. Despite its benefits in terms of political accountability and effectiveness, however, presidential brokering also presents transparency concerns and imposes significant decision-making costs.

Accordingly, the Foreword proposes several reforms. They include the continued issuance of publicly available domestic policy directives, as well as measures to facilitate more effective regulatory prioritization. In addition, the discussion explores means of enhancing congressional oversight by leveraging statutory offices within the EOP and also challenges the functional premises of the major questions doctrine. Finally, it argues that courts should continue to reinforce the incentives of honest brokering through independent evaluation of the rule’s legal and policy justifications, leaving more direct enforcement of honest brokering to the executive branch.

And here is Chafetz’s:

Where is Congress? Why hasn’t it reined in some of the worst abuses of the Trump Administration? This Article argues that a significant part of the answer to this oft-voiced lament lies in a 1983 Supreme Court case, INS v. Chadha.

In Chadha, the Court held that all legislative vetoes are unconstitutional—thereby striking down provisions in hundreds of statutes. It also made the choice to sever the legislative veto from the delegation of authority to the executive, thereby leaving in place only one side of a bargain between Congress and the presidency. The executive could still make use of delegated power, free from the post-hoc check of the legislative veto.

Among the myriad statutes whose legislative veto provisions were invalidated by Chadha were some of the most important post-Watergate presidency-constraining statutes, including the War Powers Resolution, the Impoundment Control Act, the Arms Export Control Act, the National Emergencies Act, and the International Emergency Economic Powers Act. Remarkably, all of these statutes have been the subject of high-profile interbranch conflicts during Donald Trump’s time in the White House.

The Trump presidency is characterized to a unique degree by the rise of affective polarization, policy unorthodoxies, and a disdain for political norms. Each of these factors suggests that a binding legislative veto would be even more significant in the Trump presidency than in prior presidencies—or, seen from the other direction, they suggest that Chadha‘s destruction of the legislative veto has had its most significant ramifications in the Trump presidency. An examination of the workings of the post-Watergate reforms during the Trump presidency bears this out.

These two papers will teach you a ton about the broader ecosystem in which today’s presidents exercise power. The players in Nou’s story operate close to (or even inside) the president’s home. They are the members of councils and others within the Executive Office of the President who increasingly shape executive policymaking through a process Nou labels presidential brokering. Chafetz’s paper illuminates how the Supreme Court’s invalidation of the legislative veto in INS v. Chadha continues to affect the balance of power between the president and Congress. Both are careful yet powerful, and each contributes much that is relevant to understanding the current dynamics of presidential power.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.