Academic journal article Harvard Law Review

The Presumption of Regularity in Judicial Review of the Executive Branch

Academic journal article Harvard Law Review

The Presumption of Regularity in Judicial Review of the Executive Branch

Article excerpt

The Trump Administration's ban on entry into the United States by nationals from several majority-Muslim countries (1) sparked controversy about when courts should credit the executive branch's factual assertions about its motives and decisionmaking processes. When a plaintiff alleges that the government skirted procedures or acted on illicit motives, courts will sometimes "presume" that "official duties" have been "properly discharged" (2) until the challenger presents "clear evidence to the contrary." (3) This "presumption of regularity" has common law origins. (4) In the litigation over the constitutionality of the entry ban, the government asserted that the presumption, "which is magnified here by respect for the head of a coordinate Branch, counsels crediting the Order's stated national-security purpose absent the clearest showing to the contrary." (5) The challengers argued that President Donald Trump's statements calling for a Muslim ban should be considered as clear evidence of an unconstitutional motive to exclude Muslims. (6)

The litigants' confident assertions and the fierce debate about the presumption that ensued in amicus briefs (7) and in the media (8) belied the reality that the doctrine's operation and foundations are little understood. The Supreme Court has only uttered the phrase "presumption of regularity" in fifty-nine cases since 1900, less than half of which involve the executive branch. (9) The Court often invokes the phrase without elaboration (10) or develops the doctrine without invoking the phrase. (11) And the presumption has never been the subject of focused academic treatment. (12) As a result, the applications, foundations, and implications of the presumption are in need of measured analysis.

The presumption of regularity is a deference doctrine: it 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. (13) The Supreme Court's cases applying the presumption to administrative agencies, prosecutors, and the President reveal that the presumption applies only to a subset of factual disputes about administrative motivations and internal processes. By analyzing the evolution of the presumption's reach, we can reconstruct an implicit theory of administrative regularity. Whether and to what extent the Court is willing to presume procedural or motivational regularity in a given context depends on the Court's assessment of the relevant decisionmaking scheme across several dimensions: procedural fairness, (14) accountability, and degree of discretion, (15) as well as complexity (of the decisionmaking scheme and of the substantive choices at stake). (16) In making these assessments, the Court takes into account the capacities of courts, legislators, and administrators to evaluate and monitor decisionmaking structures, processes, and outcomes. (17) These assessments aren't static; the Court's understanding of regularity is reshaped at times when settled assumptions about administrative process, action, and legitimacy are in turmoil. (18)

This Note does three things: First, it improves our understanding of the presumption of regularity through a basic typology of the Supreme Court cases. Second, in Parts II and III, it reconstructs the theory of administrative regularity that appears to underlie the doctrine. Finally, also in Parts II and III, it sheds light on how the presumption has evolved alongside the Court's attitude toward administration.


The presumption of regularity's current domain covers two categories of disputes. In the first type, the challenger and the government disagree about what happened during the decisionmaking process. (19) In the second type, the challenger and the government disagree about why a government action was taken. (20) Often, the record submitted for review will establish the facts beyond dispute. …

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