The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.
The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects.
Gavoor and Platt do an excellent job of excavating the two presumptions and describing their many uses in U.S. courts. They trace the roots of the presumptions to opinions issued by the British high court in the eighteenth century. They track the path of the presumptions across the Atlantic and identify a 1926 Supreme Court opinion as the most important and influential invocation of the presumptions in the United States. They then rely on their study of the hundreds of opinions in which U.S. courts have invoked the presumptions to identify and discuss the fourteen ways in which courts have applied the presumptions.
The authors conclude by engaging in a normative evaluation of the presumptions and their many uses. They conclude that some version of each presumption is defensible for use in some circumstances, but that other versions and uses are inconsistent with the basic principles of separation of powers or the Administrative Procedure Act. They urge either the Supreme Court or Congress to articulate “a lawful, historically supported and sensible doctrinal standard” for the presumptions.
Whether you agree or disagree with the normative part of this article, it is a must-read for anyone who wants to understand the history of the presumptions of regularity and good faith. Gavoor and Platt have provided an excellent beginning for an important discussion as well as a valuable source of data that all participants in the discussion will find to be of great value.
Editor’s note: Prof. Pierce wrote this jot and sent it in before learning that Aram Gavoor would become Associate Dean for Academic Affairs at GW Law.