In the past year and a half, many federal judges have concluded that the administration’s misconduct forfeited a protection that the executive branch traditionally enjoys: the “presumption of regularity.” That presumption generally meant courts accept the executive’s factual representations at face value unless the opposing party establishes clear evidence proving otherwise. But judges across the ideological spectrum have concluded, when it comes to the Trump administration’s practices, the standard presumption no longer holds. It has been a ground-shifting development in American litigation and the relationship between the judiciary and the executive. An open question has been what the U.S. Supreme Court might do – whether it would act to stem, or join, the tide.
At the tail end of the Supreme Court’s term, Chief Justice John Roberts’ majority opinion in Trump v. Cook took a significant step in favor of this growing trend. Grounded in checks and balances principles, the Court affirmed lower federal courts’ ability to scrutinize the president’s stated rationale for action to prevent his using a pretext. That is a domain of executive conduct the Court has previously been reluctant to have federal courts examine.
I.
The Cook case concerned, in part, how the judiciary should assess the president’s stated basis for removing a Governor of the Federal Reserve. In oral argument, U.S. Solicitor General John Sauer strenuously tried to convince the Court that the president should enjoy the standard presumption of regularity. Sauer’s efforts occurred in exchanges with an openly skeptical Justice Brett Kavanaugh:
First exchange:
Justice Kavanaugh: But [removal for cause] would be in the view of the president, the president who might have a policy disagreement, and there’s no judicial review, and the president can just define it on his or her own, right?
General Sauer: One of the strongest traditions in this Court’s jurisprudence is the — the sort of presumption of regularity to the president’s action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.
Second exchange:
Justice Kavanaugh: It incentivizes kind of the search and destroy and find something and just put that on a piece of paper, no judicial review, no process, nothing, you’re done. … [W]hat are we doing when we have a system that — that incentivizes that and leads to that? …
General Sauer: This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president for … their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and — and —
Justice Kavanaugh: But that leads — I mean, that brief, that amicus brief, cites Justice Scalia’s dissent in Morrison … the concern that you’re putting all these resources — because you can’t say it’s for policy, putting all these resources, let’s find something, anything, about this person and … then we’re good. And, by the way, there’s no judicial review, so we’re really good. And there’s no administrative process.
Justice Kavanaugh would remain unconvinced. Indeed, he joined the majority in Trump v. Cook, which effectively rejected Sauer’s argument for how courts should assess whether the president removed a governor for cause. The majority instead applied a standard that is widely recognized (see notes 1-2) as a direct counterpoint to the presumption of regularity. In the key passage, the Chief Justice wrote:
Whether “cause” for removal exists in any given situation will depend, at least in part, on the seriousness of the alleged misconduct, and the extent of any nexus that may exist to the Governor’s professional duties. The key issue is whether “[t]he cause assigned” truly “impl[ies] an unfitness for the place”—or whether it simply represents an effort to secure a “more congenial” replacement. “Our review is deferential, but we are not required to exhibit a naiveté from which ordinary citizens are free.” Department of Commerce v. New York, 588 U.S. 752, 785 (2019). Without such constraints in place, any perceived or alleged misstep (past or present) could provide a ready pretext for a Governor’s removal … .” (emphasis added)
Indeed, the citation to prior Supreme Court case law was itself significant. Chief Justice Roberts had articulated an anti-naiveté principle during the first Trump administration. As a study (co-authored by one of us) of the presumption of regularity, published before Trump v. Cook, explained:
The Supreme Court itself showed the limits of the presumption [of regularity] during the first Trump administration upon learning that the Commerce Department had “contrived” a false rationale for reinstating the citizenship question in the national census. In Department of Commerce v. New York, Chief Justice John Roberts wrote, “[W]e cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” That move was to the chagrin of Justice Clarence Thomas, who argued that the majority had given “lipservice” to the principle that “courts reviewing agency action owe the Executive a ‘presumption of regularity.’”
Thomas, indeed, ended his opinion in Commerce Department lamenting the Roberts majority’s approach: “Hopefully it comes to be understood as an aberration—a ticket good for this day and this train only.”
Those hopes were dashed, and then some, in Trump v. Cook.
II.
Since Commerce Department, administrative and constitutional scholars[1] and lower federal courts[2] have understood the anti-naiveté principle as a competing concept in opposition to the presumption of regularity. Indeed, part of the post-January 2025 trend of federal courts’ rejecting the presumption of regularity relies on the anti-naiveté principle announced in Commerce Department. As former California Supreme Court Justice Mariano-Florentino Cuéllar observed in the Yale Law Journal Forum, “In line with Department of Commerce, courts have shown a willingness to overcome the presumption of regularity where they find the Administration’s stated legal rationales to be merely pretextual.”
Read in the shadow of those lower court rulings and Commerce Department, Cook sends a potent signal to lower courts on how to address Sauer’s claim of a baseline presumption of regularity afforded to the president. In Commerce Department, the majority articulated the anti-naiveté principle to address the presumption in the specific context of the Administrative Procedure Act and agency action. In Cook, however, the anti-naiveté principle appears to have broken out of that narrow frame with the majority applying the principle as guidance for the judiciary to scrutinize the motivations of the president himself for executive action.
Another way to read Cook is that the Supreme Court did not approve judges’ directly looking into the president’s motives. Under this reading, the Court instead required a high threshold for the president to show “cause” for removal – one that “reflect[s] the Federal Reserve’s unique historical status and role” – and a searching inquiry into whether that standard is met. But even on this reading, Cook still rejected the presumption of regularity and articulated a searching inquiry out of concern that the president would otherwise use a “ready pretext.” All that said, the better view is that the Court does allow looking into motive, as the emphasized language in the block quote from Cook shows.
And, indeed, the disagreements between the Cook majority and Justice Thomas provide further proof of that reading. Invoking the landmark 1926 decision for the presumption of regularity, Justice Thomas wrote: “the Court’s precedents require it to presume ‘[t]he validity of the reasons’ given by the President for her removal and ‘the basis of fact on which they rest.’ United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926)” (emphasis added). In contrast, the majority wrote, courts can “assess the validity and sufficiency of such charges” – a point Kavanaugh emphasized in his concurrence (“courts may then ‘assess the validity and sufficiency’ of any asserted grounds for removal”).
Close Supreme Court followers have also observed the broader significance of this aspect of Cook. The highly conservative law professor Adrien Vermeule, for instance, criticized Cook because of the opinion’s blow to the presumption of regularity:
The presumption of regularity. I will conclude with a point about the so-called presumption of regularity in this setting. Many American legal academics are passionately convinced that no such presumption should attach to this President, to his administration, or both. The Chief Justice, it seems, tends to agree, and sometimes — although by no means always — manages to assemble a coalition of his colleagues to say so.
Vermeule also lamented the signal Cook sends to lower courts by “the majority’s rather casual endorsement of pretext review against the Presidency, or the President.”
We would not lament that endorsement or cast it in such negative terms. But Vermeule is correct about the signal. Over the past seventeen months, Commerce Department’s anti-naiveté principle has been a vehicle for lower courts’ allowing plaintiffs to provide extrinsic evidence to show an agency’s stated reason for action is pretextual (see forthcoming essay at Just Security by Jordan Ascher). Cook not only signals support for that approach but extends it to the presidency and the president.
III.
Time will tell how the anti-naiveté principle develops in tandem with federal judges’ ongoing refusal to provide a presumption of regularity to this administration. To be sure, the Solicitor General’s attempt to persuade the Supreme Court to apply the presumption fell on deaf ears in Trump v. Cook. Instead, Chief Justice Roberts’ majority opinion appears to drive the judiciary’s trust of the executive branch in the same direction as many of the lower federal courts. Whereas Commerce Department invoked the anti-naiveté principle in questioning agency officials, Cook charts new territory by questioning the actions, if not very motives, of a president.
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[1] See, e.g., Aram A. Gavoor & Steven A. Platt, In Search of the Presumption of Regularity, 74 Florida Law Review 729, 751 (Sept. 2022) (“The precise relationship between the two presumptions, including whether the presumption of regularity encompasses a presumption of good faith, could be in doubt after Department of Commerce.”); Mariano-Florentino Cuéllar, The New Presidential Adjudication, Yale Law Journal Forum 597, 637 (Feb. 9, 2026).
[2] See, e.g., Doe v. Edlow, No. 2:26-cv-494, at 45-46 (S.D. Ohio, July 6, 2026) (finding that the court “need ‘not … exhibit a naiveté from which ordinary citizens are free’” and that the Administration’s actions “have called into question whether the Executive Branch has ‘forfeited the right to … a presumption of regularity.’”) (citation omitted); Natural Resources Defense Council, Inc. v. Doremus (Oliver), No. 20-cv-1150, at 15 (D.D.C, June 7, 2021) (ruling that while ultimately plaintiffs did not make a sufficient showing to rebut the presumption of regularity, “courts are ‘not required to exhibit a naivete from which ordinary citizens are free … .”) (citation omitted); New York v. McMahon, No. 1:25-cv-10601, at 200-201 (D. Mass., Feb. 11, 2026) (framing the analysis of extra-record discovery around the presumption of regularity and invoking the anti-naiveté principle to grant such discovery); cf. New York v. Trump, No. 25-1236, at 36, 47 (1st Cir., March 26, 2025) (discussing anti-naiveté principle and presumption of regularity as part of Nken v. Holder factors for issuing a stay).
