The Trump Administration’s ban on entry into the United States by nationals from several majority-Muslim countries1 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 briefs7 and in the media8 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 elaboration10 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.
I. Restatement of the Presumption of Regularity
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.21 When it does not, and the challenger alleges procedural or motivational misconduct, a court will presume that the agency acted regularly unless the challenger makes a strong contrary showing, at which point a court might look more closely, perhaps even conducting direct discovery into what happened at the agency.22 The presumption of regularity is relevant to factual determinations; it does not settle disagreements about how to interpret or apply the law.
In disputes about the decisionmaking process, courts sometimes assume that the government has observed procedural requirements or principles.23 More specifically, the Court has used this aspect of the presumption to settle three types of claims: (1) claims that the government skirted requirements in statutes or regulations; (2) claims of misconduct during the agency’s deliberations (more specifically, claims about the extent and manner of the consideration of evidence, or claims that an adjudicator is biased by the administrative structure); and (3) claims that an agency operates a procedural scheme (for example, a benefits claims process) in an unconstitutional manner. Note that there are certain common procedural claims to which the presumption has not been applied. For example, the burden is on the government to demonstrate that it followed notice-and-comment rulemaking requirements.24
In motivational disputes, the presumption of regularity helps courts identify or verify why the government acted. The presumption of motivational regularity’s application to the President is unsettled.25 This facet of the presumption has been used to bar discovery into prosecutorial and deportation decisions.26 In arbitrary and capricious review, the presumption is weaker, only shielding agencies from discovery about their motives when the agency has offered a contemporaneous explanation for the action. These contemporaneous explanations, typically in the form of an administrative record, are themselves presumed regular — that is, complete and authentic.27
II. Procedural and Structural Disputes
As this Part will detail, the earliest iteration of the presumption of procedural regularity settled disputes about whether the government observed a discrete, technical requirement. As government action took on new forms in the early twentieth century, so did administrative discretion and process.28 The Court adapted the presumption of regularity: first to presume the regularity of internal agency deliberations and, from there, to address other types of disputes about administrative structure.
Several realizations about administration and judicial review enabled and motivated these changes. In the early New Deal era, the Court saw active judicial policing of internal agency processes as essential to protecting values like due process, accountability, and rule of law.29 Applying the presumption to internal deliberations was an about-face, one that paralleled a deeper evolution in views on the regularity of administrative process.30 The Court came to appreciate that new forms of regulation demanded bureaucratic forms of decisionmaking and that legislators and administrators were at times better positioned than courts to design and supervise processes consistent with those values.
Into the early twentieth century, direct judicial review of administrative action was available only piecemeal — through writs like mandamus, in common law tort actions against officials, and in suits between private parties.31 The issues for review were usually narrow — jurisdiction, legal authority, and attention to procedural requirements.32 And in all of these areas, the Court, in Professor Jerry Mashaw’s words, “ostentatiously declined to meddle.”33 Under these conditions, the presumption that the government observed discrete procedural requirements could be consequential. For example, in R. H. Stearns Co. v. United States,34 a key issue was whether the Internal Revenue Service had confirmed several taxpayer settlements in writing, as required by statute, and the Court presumed based on circumstantial evidence that the settlements had been properly confirmed.35
Underlying this mode of review, and the powerful presumption that accompanied it, was the dominant conception of the separation of powers, which placed courts and administrators in separate spheres.36 In Monongahela Bridge Co. v. United States,37 the Court explained that a determination delegated by Congress to the Secretary of War “cannot be revised . . . , except that . . . the courts can see to it that Executive officers conform their action to the mode prescribed by Congress.”38 Regularity — conformity to the “mode prescribed” — was presumed: “It does not appear that the Secretary disregarded the facts, or that he acted in an arbitrary manner, or that he pursued any method not contemplated by Congress.”39 The Court added, “[i]t is for Congress, under the Constitution, to regulate” in this area; Congress had delegated the determination to the Secretary of War, so judges needed to trust the Secretary.40
Our current model of judicial review emerged in the early twentieth century.41 The struggle over the proper judicial role primarily played out in due process challenges.42 For a time, the Court toyed with aggressive scrutiny,43 invalidating state administrative schemes and subjecting decisionmaking processes to exacting review.44 Around the turn of the century, however, the Court began presuming the regularity of state administrative boards and stopped allowing direct discovery into their deliberations. In Chicago, Burlington & Quincy Railway v. Babcock,45 the Court admonished lower courts for subjecting administrators and the state’s governor “to an elaborate cross-examination with regard to the operation of their minds in valuing and taxing the roads” and instructed that the “best evidence” of a board’s “decisions and acts” was its formal record.46 This rule followed from the Court’s assessment of the administrative board. Rejecting a procedural due process claim, the Court held that tax assessment through administrative boards was not per se unconstitutional.47 It praised the particular board as expert, “honest,” and “sensible.”48
Today, this “mental process rule is . . . ‘one facet of the general presumption of regularity’ which attaches to decisions of [federal] administrative bodies.”49 This development came almost fifty years after Babcock, in the Morgan quartet.50 In the Morgan cases, marketing agents challenged rates set by the Department of Agriculture, arguing that the agency’s decisionmaking procedure violated both due process and the governing statute, which required a “full hearing.”51 The rate-setting process had begun in the early New Deal era (before the appointment of the Secretary who issued the order); it involved two years of hearings (which produced no trial report) presided over by various agency officials.52 Next, a committee of agency lawyers and economists, based on 11,000 pages of evidence, compiled a draft order and findings of fact,53 which the Secretary, after meeting with those involved, issued.54
Troubled by the diffusion of decisionmaking across the agency, the Morgan I55 Court indicated that, generally, he “who decides must hear.”56 It remanded the case for the government “to answer the allegations” that its process had deviated too far from this ideal.57 Similarly, Morgan II58 emphasized that administrative process must conform to basic tenets of “fair play” and again invalidated the order, objecting to the mixing of prosecutorial and adjudicatory work during the rate-making process.59
The Court was wary of the growing discretion being vested in novel administrative structures during the New Deal.60 Underlying Morgan I’s “carte blanche”61 to lower courts to police agency deliberations was a sense that imposing formal, quasi-judicial process requirements could check discretion being exercised through institutional decisionmaking.62 But by Morgan II, the Court was reconsidering whether this was the optimal way to check agencies. The Court concluded, on the basis of the Secretary’s testimony on remand, that his consideration of the evidence had been sufficient,63 adding, “it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing which the law required.”64
By Morgan IV,65 a fundamental transformation in the Court’s attitude toward administrative process had taken place.66 In an opinion by Justice Frankfurter, a New Dealer and advocate of active agencies and hands-off courts,67 the Court finally upheld the order and announced definitively that administrators were not to be examined directly, citing Babcock.68 The presumed regularity of administrative processes and of administrators’ motives supported this rule. “It will bear repeating,” said Morgan IV, “that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.”69 Administrators “are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.”70
Morgan IV’s acceptance of administrative process as fair and legitimate reflected a broader trend.71 The same year, the Attorney General’s Report on Administrative Procedure concluded that “the problem of fairness in administration cannot be solved by judicial review alone”: the Court’s role was confined to enforcing “minimum standards.”72 Limitations inherent in episodic review by generalist judges meant that the primary checks must lie elsewhere, including in “internal controls in the agency.”73 Morgan IV has had lasting structural consequences, enabling administrative decisionmaking structures that delegate and diffuse authority across agencies.74
The Court has continued to grapple with what limits the Due Process Clause might place on agency structure. It has used the presumption to address the interaction between agency structure and the right to an unbiased adjudicator.75 In Withrow v. Larkin,76 the plaintiff challenged a state licensing board’s “combination of investigative and adjudicative functions” on the theory that this feature “necessarily create[d] an unconstitutional risk of bias in administrative adjudication.”77 Rejecting the idea that structure can systematically distort decisionmaking, the Court said: “The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members . . . .”78 It grounded this principle in Morgan IV’s presumption of regularity: “Without a showing to the contrary, state administrators ‘are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’”79 Schweiker v. McClure80 applied this same principle to a benefits claims scheme in which administrative law judges could be appointed by private Medicare carriers, rather than by the government.81 Even here, the Court refused to consider the claim that this structure created an unconstitutional risk of bias: “We must start,” the Court explained, again citing Morgan IV, “from the presumption that the hearing officers . . . are unbiased. This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification.”82
Withrow and Schweiker add to the theory of administrative regularity. Morgan IV linked the presumption with the legitimacy and basic fairness of administrative processes. In these cases, the Court goes further, indicating that fair, effective, and accountable administration demand bureaucratic structures and that Congress and administrators are better equipped than courts to design and monitor those systems.83 Withrow explained why structures designed by Congress and agencies were more likely to be regular. Because of “the growth, variety, and complexity of the administrative processes,” systems must be tailored to context, and “legislators and others concerned with the operations of administrative agencies have given much attention to” various structures’ risks and benefits.84 In contrast, courts lack the practical experience and the capacity for systems-level thinking that institutional design and monitoring require.85 And the episodic judicial perspective could make courts error prone, unable to foresee how meddling would ripple to upset a carefully struck balance among competing values.86 For example, the scheme in Schweiker could have been intentionally crafted to promote efficiency, carrier compliance, or some other legitimate administrative value at the expense of procedural fairness.
The Court has also applied the presumption in Mathews v. Eldridge87–based challenges to benefits claims processes. These cases sometimes call on the Court to figure out how a procedural scheme devised by Congress operates on the ground. In U.S. Department of Labor v. Triplett,88 the issue was whether statutory attorney’s fees limits in a benefits scheme for coal miners amounted to a violation of the claimants’ due process rights. The Court would reach the constitutional question — whether the claimants were due lawyers — only if the fee limits made lawyers essentially unavailable.89 The lower court, in concluding that lawyers were unavailable, had relied on assertions by attorneys that lawyers were less willing to take claims because of the caps.90 But the Court disagreed: “[T]his sort of anecdotal evidence will not overcome the presumption of regularity and constitutionality to which a program established by Congress is entitled.”91 It cited Walters v. National Ass’n of Radiation Survivors,92 which explained that, where the scheme set up by Congress is known or presumed to be constitutional, anecdotal evidence “is simply not the sort of evidence that will permit a conclusion that the entire system is operated contrary to its governing regulations.”93 That is, Congress is presumed to design schemes that are constitutional and, in implementation and operation, agencies are presumed to act regularly — that is, to remain faithful to Congress’s design.
Like the structural bias cases, the benefits scheme cases pique the Court’s fear of bureaucratic systems design. Triplett and Walters also reflect a related worry that judicial meddling will affect not just processes but also outcomes.94 Procedurally, the worry was that promoting lawyers could compromise efficiency and consistency, even as it promoted fairness and individualization. Substantively, budgeting for lawyers’ fees and for government lawyers could shift resources away from some other priority that might benefit claimants more.95 Similar intuitions about the connections between substance and procedure drove judicial review of Vietnam-era draft orders. Eager to leave the day-to-day operation of the draft to more expeditious and expert draft boards, courts presumed that boards had followed the intricate web of guidelines and procedures governing order of call determinations.96 Because contrary evidence was so difficult to gather, this presumption that the order of call requirements had been followed verged on a presumption that the orders were valid.97
In theory, presuming procedural regularity — presuming that agencies follow concrete and abstract procedural principles — leaves agencies freer to develop their own internal systems.98 Underlying this arrangement is an assessment of administrative process that is contingent and contextual, leaving the contours of the presumption subject to change with the Court’s views on administrative regularity.99
III. Motivational Disputes
When the validity of government action turns on rationale, courts have several options for how to approach judicial review. One option is to uphold actions when a valid rationale is conceivable, regardless of the reasons the government relied on; this leaves the primary controls on undesirable administrative action to politics. At the other extreme, courts might find their own facts and reasons and uphold only those actions supported by trial; this seeks to maximize legal accountability through judicial process. The presumption of regularity is one tool courts have used to calibrate review between these extremes. Here, the presumption helps determine the record on which an action is reviewed and the extent to which courts credit the government’s explanations.
As this Part will show, in the early 1900s, the Court took the first approach, and the presumption of regularity was hard to disentangle from a presumption of validity. Over time, the Court has diluted the presumption based on a reassessment of administrative regularity. Policymaking became more discretionary as delegations became more substantial and complex, especially during the New Deal and the 1960s and 1970s.100 Meanwhile, innovations in administrative structure and procedure meant that these sweeping policy choices might be forged in informal and diffuse processes.101 Worries about procedural adequacy, accountability, and the efficacy of outcomes spurred a revolution in judicial review of informal agency action102 facilitated in part by tweaks in the presumption. But recent applications of the presumption suggest that a reconception may be underway, at least in certain areas.
Under the deferential mode of judicial review that reigned at the turn of the century, courts didn’t look too closely at the government’s explanations.103 Take, for example, United States v. Chemical Foundation, Inc.,104 a 1926 case that grew out of executive branch actions authorizing the confiscation and sale of German chemical patents and other property during World War I. The government later brought charges against some buyers, alleging that they had conspired to buy up a monopoly by “deception” of the officials, including the President, who were in charge of the sales.105 In the lower courts, “the United States failed to establish any conspiracy, fraud or deception alleged,”106 and in the Supreme Court, the presumption of regularity applied: “Under that presumption, it will be taken that [the official who approved the sales] acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the facts on which they rest, will not be reviewed by the courts.”107 Absent proven bias, the Court suggested, courts are not to question the given facts or reasons. In other cases, the Court compared discretionary administrative actions to legislation and required no explanation, affording a “presumption of the existence of facts justifying [the] specific exercise.”108 In cases like this, a presumption that the government acted without illicit motive (the presumption of regularity) is so strong that it becomes a presumption that the government’s action is legally valid (a presumption of validity).109
Early in the twentieth century, administrative action tended to occur after a formal adjudicatory process — a hearing on the record — and in service of a cabined mandate. The erosion of these traditional safeguards on administrative action during the New Deal made the Supreme Court nervous.110 It began to reassess administrative regularity.
Panama Refining Co. v. Ryan111 struck down part of the National Industrial Recovery Act112 (NIRA) as an unconstitutional delegation of legislative power to the executive branch.113 It also invalidated a related executive order for failure to state facts and reasons demonstrating that it was an “appropriate exercise of the delegated authority.”114 In dissent, Justice Cardozo urged that the presumption of regularity made the order valid.115 A reason-giving requirement applied to adjudicative administrative actions, Justice Cardozo insisted, but not to presidential actions.116 The order was presumed regular because it was an official act by the President — the execution of a delegation from Congress.117 In a system of separated powers, it wasn’t the Court’s job to question the motivations behind such official acts by the political branches.
But the majority rejected this conception of regularity and the underlying theory of the separation of powers. Digging into the decisionmaking scheme, the majority saw irregularity. Executive discretion had to be exercised under certain conditions to be fair and accountable, with legislation laying down procedures and “rules of decision” for the executive branch, which was to “pursue the procedure and rules enjoined and show a substantial compliance therewith.”118
The Court also declined to apply the presumption a few years later, in United States ex rel. Johnson v. Shaughnessy,119 over cries in dissent that a deportation order lacking a full explanation could be upheld based on the presumption alone.120 Then, in 1943, SEC v. Chenery Corp.121 held that an administrative action could only be upheld based on its real, contemporaneous rationale, indicating that reason-giving was a fundamental feature of a regular administrative scheme.122 Reason-giving and active judicial review are thought to check arbitrary exercises of discretion by promoting deliberative and reasoned decisionmaking inside the executive branch.123
Panama Refining’s assessment of regularity became a permanent feature of judicial review of agency action in 1971, in Citizens to Preserve Overton Park, Inc. v. Volpe.124 Broad delegations had proliferated in social and environmental legislation of the 1960s and 1970s, just as judges and scholars were beginning to question the New Deal–era idea that bureaucratic expertise legitimized bureaucratic discretion.125 Meanwhile, “[a]dministrative law . . . ha[d] entered an age of rulemaking,” with agencies turning to informal processes, especially notice-and-comment rulemaking, to make sometimes-sweeping policies.126 A general “sense of uneasiness” about administration pervaded, along with a conviction that agencies had been captured or were otherwise systematically biased toward powerful, organized interests.127 In response, courts began to read “paper hearing” requirements into the Administrative Procedure Act’s128 (APA) bare rules for informal rulemaking129 and began to review administrative policymaking searchingly, to ensure that agencies had taken a “hard look” before acting.130
In Overton Park, the Court reviewed an informal adjudication by the Department of Transportation (DOT) authorizing federal funds for a controversial highway project that would cross a park in a white and relatively affluent neighborhood of Memphis.131 The Court first rebuffed the government’s argument that discretionary administrative actions like this order were unreviewable by courts under the APA.132 Next, in clarifying the appropriate standard of review, the Court explicitly rejected a reading of the presumption of regularity as a presumption of substantive validity, explaining that the “presumption is not to shield [the Secretary’s] action from a thorough, probing, in-depth review.”133
The Court set out to review the order under this standard. But because the APA doesn’t require a hearing on the record in informal actions,134 DOT hadn’t documented its findings and reasons.135 Yet under the rule from Chenery, the order couldn’t be upheld on a rationale offered during litigation, and Morgan’s presumption shielded DOT’s internal deliberations from direct discovery.136 To ensure records for review of informal action, Overton Park reshaped the presumption, holding that it would shield agencies from direct discovery only where they have offered contemporaneous explanations for their actions.137 When agencies provide explanations, usually in the form of an administrative record, courts presume that record’s regularity — that is, its completeness and accuracy.138
This reading of the presumption not only forced record creation but also facilitated further developments in judicial review. Reviewing the recission of a notice-and-comment rule in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co.,139 the Court again rejected a strong, substantive presumption before adopting a searching form of arbitrariness review designed to promote reasoned and deliberative policymaking.140
This reshaping of the presumption is consistent with the Court’s theory of administrative regularity. The complex bureaucratic systems presumed regular in cases like Schweiker and Triplett involved structured processes and intricate guidelines that might help to guarantee fairness for individual claimants, accountability to law and to political actors, and consistent, effective outcomes. Scaling back the presumption in Overton Park and State Farm was an effort to ensure this kind of regularity in policymaking.141 The change, one contemporary commentator predicted, “will . . . open up the administrative decisionmaking process to more searching inquiry; [will] require the administrator to put more of his cards on the table; [will] require even informal administrative processes to . . . satisfy at least certain basic standards of fairness.”142
In narrowing the presumption and giving courts a more active role, Overton Park and State Farm reject the faith in the political branches implicit in the strong turn-of-the-century presumption.143 As Professor Peter Strauss puts it, Overton Park’s “premise was that political controls could not be effective in relation to administrative action.”144 But “intensified judicial review” gave “the unrepresented . . . some protection against the tendency of the state to respond to concentrated, self-interested power.”145 On this theory, a weaker presumption is needed to correct for political forms of representation that are prone to the irregularity of systematic bias. In State Farm, the worry was politically motivated deregulation. As now–Chief Judge Merrick Garland argued in 1985, hard look review emerged out of the intuition that reversal of an earlier rule “could signal that the agency was no longer being faithful to congressional policies or that it was otherwise acting on improper motives.”146 In rejecting the suggestion that the President’s deregulatory agenda could excuse the agency’s failure to engage in reasoned decisionmaking, State Farm reflected Overton Park’s skepticism of political checks.147 Both stand for the idea that, without a deliberative process and accountability via judicial review, administrative motives can’t be presumed regular.
Recent applications of the presumption of regularity suggest a shift away from this theory of regularity and this view of the judicial role, at least in certain areas. First, the Court used the presumption to bar direct discovery of the motives behind criminal charging decisions. In United States v. Armstrong,148 defendants claimed that prosecutors’ decisions to charge them were motivated in part by racial bias.149 But the Court, referencing Chemical Foundation, held that the presumption of regularity barred discovery of prosecutors’ records and notes, absent clear and direct evidence of bias.150 Reno v. American-Arab Anti-Discrimination Committee151 indicated that the same rule applied in selective deportation claims against immigration agencies.152
Faith in the regularity of the criminal process could in theory underlie Armstrong.153 Yet as Professor Rachel Barkow has noted, the guardrails on prosecutorial decisionmaking — in an environment where nintey-seven percent of charges are settled through plea agreements154 — are virtually nonexistent, far looser than those on administrative decisionmaking.155 Armstrong does rest on “the relative competence of prosecutors and courts,” a functional reason for presuming regularity that is in line with the focus on institutional capacity in Withrow and Triplett.156 But Armstrong’s presumption is also founded on a conception of unreviewable executive discretion inconsistent with the separation of powers theory underlying Overton Park and State Farm. Armstrong rooted its presumption in “a concern not to unnecessarily impair the performance of a core executive constitutional function.”157 And Reno invoked the same idea: selective enforcement claims, Justice Scalia wrote, “invade a special province of the Executive — its prosecutorial discretion — [so] we have emphasized that the standard for proving them is particularly demanding, requiring . . . ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.”158
A “tradition of deference” to prosecutors might distinguish Armstrong from Overton Park and State Farm.159 But Reno, about agency, not criminal action, could signal a shift in the Court’s theory of regularity. Compare Reno to Heckler v. Chaney,160 which held that an agency’s decision not to bring an enforcement action was an unreviewable exercise of discretion; the Heckler Court grounded this interpretation of the APA not only in the difficulty of reviewing amorphous prioritization decisions but also in the idea that Article II’s Take Care Clause161 commits enforcement to the Executive.162 The affinities between Heckler and Reno bring two potential changes into focus. First, Armstrong and Reno could signal the return of a stronger presumption of regularity, one verging on a presumption of unreviewability, or of substantive validity. Second, the ground underneath the presumption of regularity could be shifting from a functional assessment of the relevant decisionmaking scheme to a categorical conception of executive power.163
The second recent application relates to President Trump’s rescission of Deferred Action for Childhood Arrivals (DACA), an Obama-era immigration policy. The district court ordered the Department of Homeland Security to supplement the administrative record submitted in APA litigation over the recission.164 And the Ninth Circuit agreed that “the presumption of regularity that attaches to the government’s proffered record [was] rebutted.”165 “Put bluntly,” the Ninth Circuit said, “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible.”166
The Supreme Court disagreed. It embraced a conception of regularity and deference as grounded in separate judicial and executive spheres, departing from the theories of regularity and judicial review in Overton Park and State Farm. To start, it suggested that DACA might be, like the action in Heckler, categorically unreviewable.167 Without commenting on the regularity of the government’s record, the Court worried that the lower court’s order was “overly broad” and noted the government’s argument that the order compelled privileged material.168 One of the privileges asserted by the government, the deliberative process privilege,169 is closely related to Morgan’s mental process rule.170 The government had also argued that a species of executive privilege, rooted in “the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications,” should protect any communications involving White House staff.171 Absent from the Court’s order was an assessment of the fairness, reliability, or accountability of the decisionmaking context.
Several Justices would have allowed the documents to be compelled.172 Justice Breyer, writing for the group, read the presumption narrowly, as applicable only in instances where plaintiffs sought discovery of “subjective mental reasoning,” not of material like agency documents.173 Leaning on Overton Park and State Farm, Justice Breyer embraced review on an extensive record as necessary protecion against arbitrary or unlawful outcomes.174 This inclination is consistent with our account of the Court’s theory of administrative regularity. DACA was an unusual initiative, both substantively — in that it formalized and institutionalized a policy of nonenforcement (such policies are traditionally implemented on an “ad hoc basis, guided by loose priorities laid out in . . . agency memos”175) — and procedurally — in that it made significant policy through an informal, although deliberated, interagency process directed by the Obama White House.176 As the Ninth Circuit suggested, the reversal process directed by the Trump White House came quickly and seemed reliant on little evidence. These features might raise accountability, procedural, or rule-of-law flags that merit tweaks to the presumption.177
Justice Breyer’s analysis may also be consistent with the implicit conception of regularity applied by the lower courts in the travel ban litigation: both circuits have considered outside-the-order evidence of motive while emphasizing the irregularity of the Administration’s decisionmaking processes.178
The Supreme Court’s assessments of regularity are contextual and contingent, and the contours of the presumption are subject to change as attitudes evolve. The Court systematically reassesses regularity, and with it the presumption, at times when settled models of administration are being upended, administrative discretion is expanding, administrative process is in flux, and old legitimating ideals are ill fitting. Underlying each new assessment is an implicit yet consistent theory of administrative regularity. This concept of regularity emphasizes due process, accountability, and rule-of-law values, and it looks at the extent to which a scheme ensures basic procedural fairness and protects against arbitrary, unlawful, or ineffective outcomes.
The presumption of regularity is a type of deference doctrine, but the presumption of regularity can also teach us something about judicial deference more generally. Procedural and motivational regularity are also predicates for other forms of deference. That is, the assumption that officials and entities follow procedures, act rationally, reasonably, and in good faith enables courts to credit the executive branch’s legal interpretations and policy judgments.179 Understanding the presumption of regularity can help us get a better grasp on the relationship between courts and administration.