How do courts assess whether they should presume regularity when government decision making seems highly irregular? Courts ordinarily assume that they can trust an agency’s assertions about the process it used to come to a decision, the scope of the record on which it relied, and its reasons for reaching a decision. This presumption of regularity — the assumption that the government follows the rules and tells the truth — has attracted scrutiny in recent years, as courts question the federal government’s rationales, particularly in cases involving new or changed policies concerning highly political issues.
During the first Trump administration, academics and legal commentators noted that courts were less likely to take the government’s explanations at face value. Six months into the second Trump administration, this trend has arisen again. Already, the administration’s use of irregular procedures has caused courts to second-guess the government’s explanations, a sign that courts are setting aside the presumption of regularity even when not mentioning it by name.
On the rare occasions that courts have rejected the presumption, they have probed the processes agencies used and explanations agencies have given. But circumstances warranting overcoming the presumption are not well defined. This paper offers a framework for assessing when the presumption applies: when executive agencies decisions display the identified features of well-functioning government, its decisions warrant the application of the presumption, but if its actions lack these features, courts may suspect the presumption.
