Last year, a Trump-appointed appellate judge complained in a dissent that the majority “seems to give this President a presumption of irregularity.” The judge, Andrew Oldham, saw an inversion of the long-standing principle that the government enjoys a “presumption of regularity” that officials act in good faith.
Oldham’s critique came in litigation over Donald Trump’s unprecedented invocation of the Alien Enemies Act to summarily deport immigrants. That subject is an especially poor candidate for championing government deference, given the erroneous basis for Trump’s invocation and the administration’s contemptuous manner of carrying it out.
In any event, Oldham’s phrase — presumption of irregularity — does well to capture how the courts should scrutinize the Trump administration’s actions and claimed rationales.
Indeed, it’s fair to wonder whether any administration should be entitled to greater deference simply for being the government. But focusing on the moment we’re in, judges across the country, appointed by Republican and Democratic presidents alike, have been calling out officials in ways they haven’t before, as they respond to actions under this administration that they haven’t confronted before.
That was already happening prior to the federal killings in Minnesota. But the death of Alex Pretti and its aftermath — featuring federal lies contradicted by video evidence — provides one of the latest examples of the presumption of regularity (or irregularity) surfacing in litigation.
Another judge appointed by Trump, Eric Tostrud, granted a temporary restraining order over the weekend against the federal government destroying or altering evidence related to Pretti’s shooting. In their complaint that Tostrud considered in granting the order, state and local officials wrote that it wasn’t “the first occasion on which federal officers have committed a fatal shooting within the State’s borders during their recent unprecedented show of force,” nor, they wrote, was it the first time that the federal government had “willfully interfered with the ability of the State and its subdivisions to investigate such a fatal shooting.”
In its brief opposing a restraining order, the administration cited the presumption of regularity in writing that the state wrongly assumed the feds would fail to preserve evidence. The brief was filed Monday, after Tostrud had entered the quick emergency order over the weekend, but the judge was surely familiar with the presumption when he did so. Although his order could change as the matter continues to be litigated, the general practice of giving the government the benefit of the doubt wasn’t enough to stop it, even if only temporarily.
In this case and others across the country, in all areas of the law, the administration hasn’t shown that it deserves more than any other litigant in court. If anything, it has shown that it deserves the opposite.
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