Presidential Brokering in the Regulatory State

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”) to manage these challenges. This Foreword spotlights the practice of presidential brokering, a structured process often led by White House policy councils such as the Domestic Policy Council and National Economic Council. 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 provides an institutional account of presidential brokering—distinguishing it from more commonly studied mechanisms of administrative oversight, 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, however, presidential brokering also presents transparency concerns and imposes significant decision-making costs. The Foreword thus proposes several reforms. For presidents, they include the continued issuance of publicly available domestic policy directives as well as measures to facilitate more effective regulatory prioritization. Congress, for its part, could enhance its oversight by leveraging statutory offices within the EOP. Finally, courts should revisit the functional premises of the major questions doctrine and continue to reinforce the incentives for honest brokering through independent evaluation of a rule’s legal and policy justifications.