Darrell A. H. Miller (University of Chicago – Law School; Duke University School of Law) has posted The Presumption of Regularity During Regime Change (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract:
Donald J. Trump began his second campaign for president with a promise to revolutionize the federal government and to bring “retribution” to his political enemies. In the first two years of his second term as President, he’s targeted law firms and institutions of higher education; he’s gutted entire departments of government; he’s bullied news outlets and decimated the civil service. Most concerning, he’s dissolved the layers of post-Watergate barriers between the White House and the Department of Justice and has appointed executive officials whose sole duty appears to be to carry out the President’s campaign against political opponents and to advance the President’s partisan and pecuniary interests. The rapid deterioration of a once-robust set of constitutional, institutional and cultural constraints on the executive branch during the second Trump administration has been as shocking as it has been brash.
In a more conventional administration, the judicial branch would examine executive decision-making across the breadth of the federal government with a “presumption of regularity”: a presumption that executive branch officials act with proper motives, are honest and ethical, and base their decisions on facts and evidence. But now it’s different. Broadly conceived, judges have been forced to decide whether to afford a presumption of regularity to a revolutionary.
Part I of this Essay discusses the presumption of regularity, its roots in the common law, and its current application in the federal courts.
Part II explores the presumption of regularity as a species of legal fiction. The presumption of regularity is fictional in the way that all legal presumptions are fictional—they assume or stipulate a set of facts of the world and draw legal conclusions from those facts.
Part III highlights the various contexts in which lower courts have concluded that litigants have overcome the presumption of regularity in litigation against this administration, relying on the important work of Professor Ryan Goodman in documenting the issue, and discussing its practical implications.
Part IV articulates a theory of judicial power that explains what the presumption of regularity—or more precisely, its collapse—means for the judiciary. In sum, the authority of a court to conclude that a party has overcome the presumption of regularity fits within the broader equitable power of courts to ensure that the legal system maintains some connection with reality. Simultaneously, the court’s ability to peer through the presumption of regularity is a procedural mechanism for the judicial system to act as a check on the executive branch, despite the latter’s significant advantage in power and coordination. Finally, and somewhat ironically, the court’s ability to determine that the presumption of regularity has been overcome is an act of legal conservation. The presumption of regularity is a legal fiction of sorts—and many legal fictions evolved to effect justice while maintaining continuity with the past. In this circumstance, recognizing that this executive branch’s behavior is unorthodox—seeing through the fiction—is the tradition- and institution-preserving jurisprudential act.
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