In Search of the Presumption of Regularity

Abstract

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 bedrock case. It finds that due to the indeterminacy of the Supreme Court to squarely articulate the presumption and its limiting principles, courts have applied it in at least 14 distinct scenarios that each carry a unique definition. It argues that the presumption of regularity is inaccurately conflated with the presumption of good faith and that several aspects of its modern uses violate separation of powers principles and the Administrative Procedure Act of 1946. This Article makes the case that the Supreme Court or Congress should articulate a lawful, historically supported, and sensible doctrinal standard for the presumption of regularity to benefit each of the branches of the federal government and the American public.

Keywords: presumption of regularity, administrative law, constitutional law, separation of powers