In the digestive system, regularity is both expected and valued. Conditions like Crohn’s disease, ulcerative colitis, irritable bowel syndrome, and functional dyspepsia disrupt that regularity, with significant consequences for quality of life.
Similarly, in law, as a case moves from initiation to ruling—“digested,” so to speak—courts operate under the presumption of regularity. This means the government’s actions are assumed to be truthful, lawful, in good faith, consistent with procedures, non-arbitrary, constitutionally sound, respectful of due process, transparent when appropriate, responsive to court orders, and free from improper influence or retaliation. It allows courts to function efficiently without second-guessing every government act.
While this concept may be unfamiliar to non-lawyers, it is foundational in American law—a deference doctrine. It traces back to English common law and was formally articulated by the U.S. Supreme Court in United States v. Chemical Foundation (1926): “The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” It was reinforced in Citizens to Preserve Overton Park v. Volpe (1971), where the Court emphasized that agency actions are presumed proper unless convincingly challenged.
But today, in 2025, the very notion of regularity is in crisis.
Trump’s executive orders—such as eliminating birthright citizenship or invoking the 1798 Alien Enemies Act—are not merely legally questionable; they are part of a broader pattern of executive lawlessness. The arrest and prolonged detention of Turkish Ph.D.student Rümeysa Öztürk, the wrongful deportation of Kilmar Abrego García to El Salvador, and the administrative removal of DOJ attorney Erez Reuveni—after he truthfully admitted that García’s deportation was unlawful—are not isolated incidents. Nor is the firing of Acting FEMA Administrator Cameron Hamilton the day after he testified before Congress. These are coordinated acts of retaliation and control.
The cumulative effect is unmistakable: the presumption of regularity by the government can no longer be assumed. Courts are being forced to treat the executive branch not as a lawful actor, but as a bad-faith litigant.
As of April 29, 2025, 220 lawsuits had been filed against Donald Trump in his second term—more than double the number filed during the same period in his first term (100), and ten times the number filed against President Biden. This is not an anomaly. It is a systemic legal response to the executive branch’s open defiance of the rule of law and the politicization of the Department of Justice.
Consider that Attorney General Pam Bondi reprimanded Reuveni for responding candidly to a judge, and Deputy Attorney General Todd Blanche placed both Reuveni and his supervisor, August Flentje, on indefinite leave. Bondi justified this by stating, “At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States. Any attorney who fails to abide by this direction will face consequences.” (Source: https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation)
This aligned with her February 2025 memorandum declaring DOJ lawyers to be the president’s lawyers, not independent officers of justice.
This episode marked a collapse in judicial regularity. In this climate, government actions must not be presumed regular—they must be viewed with suspicion.
Associate Professor Alan Rozenshtein warns in his Lawfare article, “What Happens When Courts Can’t Trust the Executive Branch?”, that we are at a crossroads. (Source: https://www.lawfaremedia.org/article/what-happens-when-courts-can-t-trust-the-executive-branch) He explores the three paths that lie ahead, while also recounting a litany ofcases where regularity has been damaged.
1 Fantasy: The Trump administration repents and restores regularity. But this is not happening—in fact, things are escalating. On May 5, 2025, Deputy Chief of Staff Stephen Miller publicly questioned the constitutional right to due process, claiming: “Due process guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation.” (Source: https://newrepublic.com/post/194875/stephen-miller-definition-due-process-immigration) On May 9, ICE agents arrested Newark Mayor Ras Baraka at the Delaney Hall Detention Center, despite his departure from the premises when asked to leave. He had been inspecting the facility with members of Congress. The same day, Miller said the White House was considering suspending habeas corpus to make deportations easier. This is not a government aiming to restore lawful order—it is undermining the constitutional foundations of government itself.
2 Skeptical Courts: Judges begin to withdraw the presumption of regularity, requiring the government to prove good faith at every turn, even in routine matters.
Judges like James Boasberg (D.D.C.) and Paula Xinis (D. Md.) are already moving in this direction. Both have raised the possibility of holding the DOJ in contempt over deportation-related cases.Their frustration is clear: without regularity, they cannot function effectively. The judiciary is not equipped to do the fact-finding necessary to penetrate a wall of executive stonewalling.
3 Deference without Integrity: The U.S. Supreme Court could choose to look the other way, ordering lower courts to extend deference despite mounting evidence of bad faith and misconduct. This would be the most dangerous path—undermining judicial credibility and enabling unchecked executive power.
The presumption of regularity was designed to uphold the integrity of the American legal system, not to shield authoritarian behavior. When executive branch officials act in open defiance of the law, retaliate against their own attorneys for honesty, and subvert constitutional safeguards like due process and habeas corpus, courts must adjust. If the executive branch refuses to honor its duties in good faith, the judiciary must shift from deference to doubt, from presumption to proof. In this moment, scrutiny is not hostility—it is survival.
Day 111: days left to January 20, 2029: 1,351 days
