The government has long enjoyed a “presumption of regularity” in court. Under Trump, it has shredded any entitlement to that presumption.
https://www.ms.now/deadline-white-house/deadline-legal-blog/pretti-minneapolis-trump-administration-presumption-of-regularity
Last year, a Trump-appointed appellate judge complained in a dissent that the majority “seems to give this President a presumption of irregularity.” The judge, Andrew Oldham, saw an inversion of the long-standing principle that the government enjoys a “presumption of regularity” that officials act in good faith.
Oldham’s critique came in litigation over Donald Trump’s unprecedented invocation of the Alien Enemies Act to summarily deport immigrants. That subject is an especially poor candidate for championing government deference, given the erroneous basis for Trump’s invocation and the administration’s contemptuous manner of carrying it out.
In any event, Oldham’s phrase — presumption of irregularity — does well to capture how the courts should scrutinize the Trump administration’s actions and claimed rationales.
Indeed, it’s fair to wonder whether any administration should be entitled to greater deference simply for being the government. But focusing on the moment we’re in, judges across the country, appointed by Republican and Democratic presidents alike, have been calling out officials in ways they haven’t before, as they respond to actions under this administration that they haven’t confronted before.....
In its brief opposing a restraining order, the administration cited the presumption of regularity in writing that the state wrongly assumed the feds would fail to preserve evidence. The brief was filed Monday, after Tostrud had entered the quick emergency order over the weekend, but the judge was surely familiar with the presumption when he did so. Although his order could change as the matter continues to be litigated, the general practice of giving the government the benefit of the doubt wasn’t enough to stop it, even if only temporarily.
In this case and others across the country, in all areas of the law, the administration hasn’t shown that it deserves more than any other litigant in court. If anything, it has shown that it deserves the opposite.
The loss of this presumption is a big deal in the legal world
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