Lars Noah (University of Florida Levin College of Law) has posted Transactional Governance and the Weaponization of Executive Orders (2026 Mich. St. L. Rev. (forthcoming Apr. 2026)) on SSRN. Here is the abstract:
Executive orders have become an increasingly important tool of governance, and the number that emerged from the White House at the start of the latest administration has broken records. These formal presidential directives run the gamut, from altogether ordinary to downright weird, but they also include an entirely novel variant that should raise alarms. In his second term, President Trump has formally announced plans to visit adverse consequences on particular individuals, law firms and universities for alleged misconduct. Although lower courts have already invalidated some of these orders, in other cases the targets opted to make concessions rather than gamble on a judicial challenge. As it happens, agency officials have long engaged in similar though little-noticed forms of bargaining with regulated entities, but the current administration has elevated this approach to the highest levels of the Executive branch, which heightens the risk that it will escape normal constraints against possible abuse. This Article draws attention to a potential constitutional safeguard against punitive executive orders—namely, the absolute prohibition on bills of attainder—that would remain amenable to judicial scrutiny at the behest of affected third parties even if those targeted seemingly have waived their right to object.
Recommended.