Administration has destroyed the "presumption of regularity"

[Alice Kramden]

1. KnR - bookmarked

Snip:

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. 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.
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When we first published this study in September 2025, while there was a growing set of cases that had squarely raised the presumption of regularity as a live concern, the number was limited. Now, by the middle of March 2026, federal judges have stated, in increasingly explicit terms, that the government can no longer demand the degree of deference it once received due to conduct in the specific case before the court or more broadly.