Cato Institute-Do the Feds Still Merit the Court's Presumption of Regularity?

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Normally, the DOJ and attorneys for the United States are given the presumption of regularity which means that the court may rely on and accept statements of fact made by such attorney as true. This was before trump and company fired many of the career attorneys at the DOJ and replaced these attorneys with hacks like Halligan, Ed Martin and their ilk.

The Cato Institute is NOT a liberal organization.

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https://www.cato.org/blog/should-feds-today-benefit-presumption-regularity-court

In a major setback for the Trump administration, the Supreme Court, in an unsigned opinion on December 23, declined to stay a lower court order barring the federal government from deploying the National Guard in Chicago. While welcome, the ruling is also in some ways narrow and kicks down the road many important issues. One of those issues, to my mind, is whether to rethink the presumption of regularity from which the federal government has long benefited as a litigant.

First, however, a few paragraphs on the ruling generally. To begin with, it conspicuously breaks the pattern by which the Court keeps granting the Trump administration stays of lower court rulings that restrain the administration’s ambitious assertions of presidential powers, thus allowing the power assertions to continue pending later court action. The split was 6–3 with a few wrinkles (Justice Brett Kavanaugh joined the majority but would have decided the case more narrowly. Justice Neil Gorsuch did not join the strongly written dissent by Justices Samuel Alito and Clarence Thomas and instead dissented more narrowly.)

The majority’s logic appears to carry over to some of Trump’s other deployments of the National Guard, and a week later, the administration announced that it was ending Guard deployments in Los Angeles and Portland, which had come under similar rebuffs at the lower court level. The terse majority opinion places much weight on an issue few initially saw as critical: how to interpret the use of the term “regular forces” in language empowering the president to federalize the Guard if he is “unable with the regular forces” to execute federal law. It also speaks the language of dry textualism rather than philosophical vision; Adam Unikowsky writes to explain why he sees that as a good thing.

Jack Goldsmith has offered a plausible analysis of some of the other issues in the case. Briefly: Trump retains many options not addressed by the Court; the statutory interpretation issues that the Court kicked down the road are quite complex; and the Court has not tipped its hand as to where it will come down on the inherent protective power theory cited by Trump and his backers as an argument for not needing any statutory basis at all for at least some of his troop deployments......

What is the presumption of regularity? An important multiauthored article at Just Security explains that it

is a judicially created doctrine with a long and contested history. The doctrine affords the executive branch a distinctive advantage not enjoyed by private litigants. It generally instructs courts to presume, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons.

For reasons both procedural and substantive, this convenient presumption helps the government prevail over many legal challenges and escape scrutiny entirely on others. Perhaps (or perhaps not) at some point in the past, the conduct of America’s executive branch was so upright and beyond reproach as to make judges feel comfortable in presuming good motivation and lawfulness. But this past year? The Just Security survey compiles dozens of instances over the past year in which the executive’s representations to courts or actions in connection with them have been in bad faith, motivated by retaliation, arbitrary or capricious, in defiance of court orders or established law, or—again and again—baldly untruthful. Others have compiled shorter lists, sometimes based on the government’s misconduct before individual judges such as James Boasburg (D.D.C.) and Paula Xinis (D. Md.); I assembled a few in my piece on contempt of court way back in May 2025.

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1. Deadline: Legal Blog-The Trump Justice Department has lost the benefit of the doubt with (some) judges

A new ruling on the Alien Enemies Act provides a snapshot of the “presumption of regularity” that previous administrations have enjoyed.

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https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-justice-department-lost-benefit-doubt-judges-rcna228763

The “presumption of regularity” is a boring-sounding but important phrase in the law. It signals the deference that courts have historically given the government. One of the Trump Justice Department’s latest legal losses highlights how his DOJ has lost that good faith from the judiciary — or some of the judiciary, anyway.

The latest defeat came late Tuesday from a divided panel of judges on the U.S. Court of Appeals for the 5th Circuit. The topic was the Alien Enemies Act, the 18th-century law that President Donald Trump invoked to deport alleged Venezuelan gang members. The panel majority granted a preliminary injunction against the administration’s use of the law for deportations in Northern Texas......

In granting the injunction Tuesday, the 5th Circuit majority had to analyze the likelihood that the plaintiffs would suffer irreparable harm without preliminary legal relief. Siding with the plaintiffs, the majority cited (among other things) previous litigation at the Supreme Court where the justices sided with plaintiffs despite the government’s assurances. The two judges in the majority on the 5th Circuit panel were George W. Bush appointee Leslie Southwick and Joe Biden appointee Irma Ramirez.

In a lengthy dissent, Trump appointee Andrew Oldham was bothered by (among other things) the majority refusing to give greater deference to the government. More dramatically, Oldham accused the majority of suggesting that DOJ lawyers are lying. “If they are, I suppose they should be sanctioned. But it is astounding to say that lawyers from the United States Department of Justice are lying,” wrote the judge, who’s a contender for any Supreme Court vacancy that emerges under Trump......

Oldham’s complaint calls to mind Supreme Court Justice Ketanji Brown Jackson’s recent complaint that her colleagues invariably find a way to side with the administration, lamenting that the high court is playing a version of “Calvinball” in which “this Administration always wins.”

If this latest Alien Enemies Act litigation makes it to the justices, it can provide the latest test of whether Oldham’s or Jackson’s views are vindicated.

This is a decision from the 5th Circuit which surprised me. If the trump administration loses the presumption of regularity, then you will see more decisions like this

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2. Just Security-The "Presumption of Regularity" in Trump Administration Litigation

Here is a long and detailed analysis of the concept of the Presumption of Regularity that law nerds will like

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https://www.justsecurity.org/120547/presumption-regularity-trump-administration-litigation/#post-122613-_Toc211417820

The “presumption of regularity” is a judicially created doctrine with a long and contested history. The doctrine affords the executive branch a distinctive advantage not enjoyed by private litigants.[1] It generally instructs courts to presume, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons. In practice, the presumption can preclude discovery, limit review of the facts, and truncate cases. It can constrict (or even end) civil suits challenging government action and curb criminal defendants’ ability to claim vindictive or selective prosecution, and more.

Over the decades, the scope and weight of the presumption has fluctuated. In the face of extraordinary executive misconduct or malfeasance, courts may choose (explicitly or implicitly) to narrow its scope, reduce its weight, or even potentially deem the presumption more generally forfeited, as the Trump administration is beginning to learn. Indeed, Judge Paul L. Friedman cautioned in an August 2025 opinion:

“Generations of presidential administrations and public officials have validated this underlying premise of the presumption of regularity: their actions writ large have raised little question that they act ‘in obedience to [their] duty.’ Over the last six months, however, courts have seen instance after instance of departures from this tradition. … In just six months, the President of the United States may have forfeited the right to such a presumption of regularity.” (emphasis added).

....In sum, the presumption of regularity “credits to the executive branch certain facts about what happened and why and, in doing so, narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes,” as an influential Harvard Law Review Note explained. But the maintenance of the presumption rests on certain foundations, and those foundations have been eroded by the Trump administration, especially the Justice Department, in the following three ways.

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3. Norm Eisen-DOJ has lost any presumption of regularity & after the Comey and James charges

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[Solly Mack]

4. K&R