194. Another Bad Week for the Presumption of Regularity

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Back in January, just three days into the second Trump administration, I wrote a post titled “On the Credibility of the Department of Justice.” The post identified a couple of (very early) signs that the administration was already engaging in behavior that gave reason to worry about whether the federal government would adhere to its long history of turning square corners in the federal courts—and hypothesized some of the ways in which a Department of Justice that lost credibility would not only struggle with relatively straightforward litigation tasks, but would make it far harder, going forward, for courts to defer to government officials even in circumstances in which they should, all at the expense of what’s long been known as the “presumption of regularity.”

Ten months later, that post reads as impressively naive about the depths to which the administration would sink; the outright defiance of at least some lower court orders in which it would engage; and the deep, perhaps irreparable damage its behavior would do to public faith in the integrity (or even the minimal competence) of the Department of Justice. Last week alone, developments in three different cases—the criminal prosecution of former FBI Director James Comey; the ongoing efforts to remove Kilmar Abrego Garcia from the United States; and the civil suit challenging the behavior of federal law enforcement officers in Chicago during Operation Midway Blitz—all provided dramatic, independent evidence of the same broader theme: Whereas the first Trump administration was often characterized as “malevolence tempered by incompetence,” this is worse: it’s malevolence exacerbated by incompetence. That’s problematic enough for the government’s credibility before federal district judges. But at some point soon, one suspects that the Supreme Court itself may well have to grapple with its consequences—or risk being duped.

But first, the (Court-related) news.

On the Docket

The Merits Docket

It was another relatively quiet week on the merits docket. Last Monday’s Order List added a single case—albeit an important one, with the justices taking up the Trump administration’s request to decide whether the protections of asylum law apply to individuals at