The “presumption of regularity” is a boring-sounding but important phrase in the law. It signals the deference that courts have historically given the government. One of the Trump Justice Department’s latest legal losses highlights how his DOJ has lost that good faith from the judiciary — or some of the judiciary, anyway.
The latest defeat came late Tuesday from a divided panel of judges on the U.S. Court of Appeals for the 5th Circuit. The topic was the Alien Enemies Act, the 18th-century law that President Donald Trump invoked to deport alleged Venezuelan gang members. The panel majority granted a preliminary injunction against the administration’s use of the law for deportations in Northern Texas.
The ruling is significant in its own right because it undercuts one of the key legal claims pressed by the government in Trump’s second term (a declassified government memo previously undercut the factual basis for Trump’s invocation as well).
But disagreement between the majority and the dissent also spotlights a broader issue over whether the courts trust this DOJ, whose representations judges have questioned in multiple cases related to the administration’s aggressive deportation agenda.
In granting the injunction Tuesday, the 5th Circuit majority had to analyze the likelihood that the plaintiffs would suffer irreparable harm without preliminary legal relief. Siding with the plaintiffs, the majority cited (among other things) previous litigation at the Supreme Court where the justices sided with plaintiffs despite the government’s assurances. The two judges in the majority on the 5th Circuit panel were George W. Bush appointee Leslie Southwick and Joe Biden appointee Irma Ramirez.
In a lengthy dissent, Trump appointee Andrew Oldham was bothered by (among other things) the majority refusing to give greater deference to the government. More dramatically, Oldham accused the majority of suggesting that DOJ lawyers are lying. “If they are, I suppose they should be sanctioned. But it is astounding to say that lawyers from the United States Department of Justice are lying,” wrote the judge, who’s a contender for any Supreme Court vacancy that emerges under Trump.
“The majority’s disbelief of DOJ also conflicts with the presumption of regularity,” Oldham went on, writing that courts “employ a heavy presumption that Government officers, including Government lawyers, act in good faith ‘in the absence of clear evidence to the contrary.’” He found it “troubling that, here again, the rules for this Administration are different.” If anything, he concluded, “the majority seems to give this President a presumption of irregularity.” Oldham’s complaint calls to mind Supreme Court Justice Ketanji Brown Jackson’s recent complaint that her colleagues invariably find a way to side with the administration, lamenting that the high court is playing a version of “Calvinball” in which “this Administration always wins.” If this latest Alien Enemies Act litigation makes it to the justices, it can provide the latest test of whether Oldham’s or Jackson’s views are vindicated. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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