The presumption of regularity encompasses the idea that, in a range of legal contexts, courts presume that public officials “have properly discharged their official duties.” This doctrine has long been taken for granted in litigation against the federal government. But as the Trump administration has repeatedly misstated facts to courts and resisted compliance with their orders, defying and deceiving courts along the way, the presumption of regularity has come under unprecedented strain. Publications like The New York Times, The Atlantic, ProPublica—and, most thoroughly, Just Security—have documented that many courts are coming to find that they can no longer take the government’s representations at face value.
The presumption of regularity has often been understood to “operate[] as a razor for resolving factual disputes.” In particular, courts have presumed that the executive branch’s representations about its reasons for taking a particular action are trustworthy. But since the start of the second Trump administration, courts have become increasingly willing to set that presumption aside, or to find it rebutted. Just Security has, as of March 2026, identified 90 cases in which courts expressed distrust of the federal government’s factual representations. As one judge put it, “Trust that had been earned over generations has been lost in weeks.”
The erosion of the presumption of regularity presents significant opportunities to those challenging the Trump administration’s agenda in court. Most importantly, litigants have had an easier time convincing courts to reject the government’s stated justifications for its actions. That, in turn, has increased the likelihood that courts will strike down government action on the merits. There may be other opportunities as well: courts reviewing federal action with a skeptical eye might question whether the government has fulfilled its procedural obligations and closely scrutinize whether it has acted in good faith. The presumption of regularity once made these litigation advantages rare and hard-won. Not so much anymore.
Probing Official Motivations and Rationales
In suits challenging agency action under the Administrative Procedure Act (APA), the so-called “record rule” provides that courts must generally judge the legality of an agency’s action based on its stated rationale and the accompanying record of its decision. This rule, which is based, among other things, on the premise that the government can be trusted to explain its reasons honestly, is an instance of the presumption of regularity. Sometimes, though, a litigant may believe that the government’s stated reasons are incomplete, inaccurate, or otherwise “contrived.” On a strong showing of “bad faith or improper behavior,” a court might allow a plaintiff to “supplement” the government’s proffered record with extrinsic evidence of an agency’s true rationale or motivation—or even to take discovery to obtain such evidence. This has often been described as a “narrow exception” to the rule against inquiry into the “mental processes of administrative decisionmakers.” And, indeed, it has been rare for courts to permit plaintiffs to introduce extra-record evidence to prove that an agency’s stated justification was pretextual, or otherwise hid an illicit basis for its decision.
But, as Just Security’s compendium vividly illustrates, that may be changing. Since the start of the second Trump administration, courts have increasingly rejected the government’s accounts of its bases for particular actions as incomplete or false. For instance, a federal district court was unconvinced by the government’s representation that a mass layoff at the Department of Education was motivated by a desire to “[e]nhance operational efficiency.” Instead, the court looked to administration officials’ “public statements,” which made clear that the layoff was “intended to shut down the Department,” and, in light of that “incongruen[ce],” ordered the agency to complete the record, supplement it with its decision-making materials, and submit to narrowly tailored extra-record discovery into the reduction-in-force’s true rationale. In other cases, federal courts have found the Trump administration’s proffered justifications to be “inconsistent with the facts on the ground,” “not plausible,” “contrived,” and “a sham.”
As these statements suggest, a plaintiff can make a showing of “bad faith or improper behavior” sufficient to bring in extra-record evidence by demonstrating an inconsistency between the government’s rationale and what actually happened. Historically, that was considered difficult to do, as federal officials generally had the savvy not to release into the public record evidence of their illicit motives. That has changed. Senior government officials, not least the president himself, have not hesitated to say the quiet part out loud in explaining administration policy. At the same time, implementing agencies have often sought to cloak the administration’s actions in mundane, technocratic justifications. In other words, the evidence that the government has offered pretextual justification for a particular action has been relatively easy to gather, and courts have proved increasingly willing to accept a plaintiff’s invitation to probe for the truth.
Two implications follow for a case’s ultimate merits. First, in some cases, the fact that the government has offered a pretextual justification is reason enough for a court to strike down an agency action. Under the APA, courts are to “set aside” final agency action that is “arbitrary” or “capricious.” Courts have understood this rule to bar agencies from offering contrived justifications for their actions. Second, the illicit justification for a government action, once exposed, might render the action unlawful. Here, too, the APA applies: it is arbitrary and capricious for an agency to act based on impermissible reasons or considerations. Likewise, in First Amendment cases, a finding that the government acted with a desire to retaliate against protected speech will often be dispositive. The Just Security compendium is replete with examples of cases in which courts, rejecting the presumption of regularity, found the Trump administration acted with an unlawful retaliatory motive. To name a few, the cases involving the executive orders targeting law firms, the administration’s “concerted” campaign against Harvard University, and some of its decisions to terminate federal funding.
Other Opportunities for Litigants
Courts’ increasing willingness to dig for the government’s true rationales is the most visible way in which the erosion of the presumption of regularity is changing administrative law litigation. But courts’ newfound skepticism of the federal government’s (and its lawyers’) integrity presents other opportunities for plaintiffs to consider.
One form of regularity that courts have historically presumed is that government officials have “followed the appropriate procedures when performing their official duties.” Nearly a century ago, the Supreme Court said that “[a]cts done by a public officer which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Courts similarly presume that agencies operate “fairly” and with “honesty and integrity.” It is not always clear in practice what legal work this form of the presumption of regularity does, since courts have generally never been shy about entertaining procedural claims against government action. Still, courts have historically been willing to presume that the government follows legally required procedural steps when it acts.
This form of the presumption of regularity may also be coming under pressure. For instance, a group of labor unions and federal employees successfully challenged the Office of Personnel Management’s 2025 release of confidential personnel information to members of the U.S. DOGE Service. Relying in part on the presumption of regularity, the government argued that it had properly disclosed the information. The court, unconvinced, found OPM’s disclosure to be “a gross departure from its obligations under the Privacy Act as well as its longstanding cybersecurity practices.” “Between this and the extensive evidence of the hasty and chaotic disclosures of OPM systems, the plaintiffs have rebutted any presumption of regularity on which the defendants seek to rely.”
More generally, the term “presumption of regularity” is sometimes used as a catch-all to describe a court’s willingness to defer to the government on a range of matters. If, as one judge recently put it, courts are “left with little confidence that the defense can be trusted to tell the truth about anything,” that could benefit plaintiffs in a variety of explicit and subtle ways beyond just the doctrinal domain of the presumption of regularity. For example, courts have scrutinized executive action more closely than they might have otherwise. They have closely examined whether the government is complying with judicial orders. They have even been disinclined to grant the government customary professional courtesies, like extensions of deadlines. Courts’ growing skepticism of the government’s representations may help account for these outcomes. To be sure, the Supreme Court has stressed for nearly fifty years that the presumption of regularity “is not to shield [government] action from thorough, probing, in-depth review.” But, doctrine notwithstanding, litigants may have an easier time across the board when courts distrust their adversaries.
The Bigger Picture
The decline of the presumption of regularity leaves open questions. First, is its weakening a bad thing? Some might lament that the Trump administration has so quickly spent down the Department of Justice’s longstanding reputation for integrity and candor with the courts. To others, though, courts’ willingness to test the government’s factual representations is a welcome development. In this view, the presumption of regularity—an advantage enjoyed by no other litigant—reflects undue deference to an executive branch steadily accumulating power. Courts’ openness to finding it rebutted might be necessary to ensure that the government does, in fact, act honestly. Courts assessing the truthfulness of a party’s representations is the system working as it should.
There is also the question of how lasting this change in courts’ posture will be. A future administration acting in line with preexisting executive branch norms might regain the benefit of the doubt. But it is also possible that the relationship between the judicial and executive branches has undergone an enduring change or, at least, that the presumption may return only slowly and in diminished form. Judges reviewing the actions of a future administration might retain an increased willingness to set the presumption of regularity aside.
Of more immediate concern, the Supreme Court has not weighed in on the presumption of regularity, at least explicitly, since the start of the second Trump administration. To be sure, the Court created the doctrinal conditions for the presumption’s erosion in Department of Commerce v. New York, the case finding that the first Trump administration’s stated reason for adding a question on citizenship to the 2020 Census—Voting Rights Act enforcement—was pretextual. And, as Ryan Goodman and Jake Morganstein-Foley have explained, the recent Trump v. Cook decision blessed a searching assessment of whether the president’s asserted “‘cause’ for removal” of a Federal Reserve Governor “truly implies an unfitness for the place” or is instead “a ready pretext.” In so doing, the Court emphasized that judges “are not required to exhibit a naiveté from which ordinary citizens are free,” a principle articulated in Department of Commerce often understood to cut against the presumption of regularity. But on the other hand, the Court avoided adjudicating a claim that the Department of Homeland Security failed to follow the requisite procedures in terminating Temporary Protected Status for immigrants from Haiti and Syria. Moreover, the Court has consistently granted the Trump administration interim relief on the shadow docket, notwithstanding various claims that the government was acting irregularly. These are all, to varying degrees, imprecise proxies for the Court’s current views on the government’s trustworthiness in general and the presumption of regularity in particular.
These weighty questions aside, lower courts’ growing distrust of the federal government presents litigants opportunities that, as one judge put it, they have not had in generations, if ever. Plaintiffs are seizing the moment.
