Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity. As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties. It has become a hot topic during the Trump administration. But I was interested in the presumption because it forms the basis of a few cases that I find troubling — most notably, the Supreme Court’s ruling
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I was just looking for the right terminology in the US for that legal doctrine of ” relative nullity ” but couldn’t find it, probably doesn’t exist I guess. But :
One should notice, that when courts apply such doctrine ( that is say, that even if the action is flawed, can be remanded or fixed further, by the order of the court, without complete nullity ) then :
Judicial review, makes more sense, and may be more efficient. There is no need for total nullity of the act, but, rendering it or fixing it, to become more : just and reasonable.
So, it may extend judicial review, instead of granting total hold to presumption of regularity.
Thanks
Posted by: El roam | Jan 14, 2019 12:01:35 PM
Excellent post, and really bit messy issue ( much less messy in the eyes of courts and judges ). But just some few :
First, what is needed, is not really clear evidence to displace it ( to displace the presumption of regularity ) but rather :
Prima facie evidence, rendering it, or raising clear suspicion on the face of it, that it is illegal or unconstitutional or unreasonable. Once such evidence is presented, the court must pursue further with judicial review. So, the prima facie doctrine, is applied on both parts :
The action of the executive branch is prima facie legal and correct, unless, prima facie it is illegal.But when Prima facie illegal, typically, the court can’t dismiss it by such presumption
Sometimes, clear evidence can exist or be created, but, after the fact, or in post rationalization. Yet, this is only potentially so, if we shall dig for it, then, the rational of such presumption of regularity, shall be eliminated then.
There are cases, according to the Supreme court, that even review is excluded ( rare cases, and surly can’t be really justified by the way ) here I quote from : Citizens to preserve overton Park V. volpe :
A threshold question – whether petitioners are entitled to any judicial review – is easily answered. Section 701 of the Administrative Procedure Act, 5 U.S.C. 701 (1964 ed., Supp. V), provides that the action of “each authority of the Government of the United States,” which includes the Department of Transportation, 21 is subject to judicial review except where there is a statutory prohibition on review or where “agency action is committed to agency discretion by law.” In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no “showing of `clear and convincing evidence’ of a… legislative intent” to restrict access to judicial review.
End of quotation :
However, one must notice, that, we typically observe the output, not the input. If not prima facie, and if each act can be challenged thoroughly, then, endless litigation shall bar in advance, any action of the executive branch:
Suppose that a person gets a bill to pay. Prima facie correct ( by issuance, and by the sum ). He will have to pay it, not challenge it. Unless prima facie clearly wrong. But if not so, endless debates and litigation shall mess the whole system and states. It is very simple.
Endless issues here, but we fall short surly….
Thanks
Posted by: El roam | Jan 14, 2019 11:49:29 AM
It’s interesting that many of those original justifications don’t seem to be in any sense an epistemic presumption of regularity but rather a kind of formal fiction or deference. It wasn’t that the court truly believed that those warrants were signed by the president rather than the secretary. Rather it represented the choice to adopt the fiction that what happened behind the curtain was what should have.
This KIND of presumption of regularity seems appealing to me. We want people to be able to simply rely on facially valid governmental determinations rather than lingering in uncertainty. And this choice not to look behind the curtain can help with acceptance and finality.
However, the most troubling applications seem to involve a totally different epistemic principle. In these cases judges seem to agree it matters very very much if in fact that prosecutor was engaged in an unconstitutional campaign of harassment but they then apply this principle as if it was an epistemic rule telling us that we should believe procedures were actually regular (not fictionally credit them as such) absent overwhelming contrary evidence.
It’s these applications that trouble me more since they provide an excuse to avoid confronting the hard trade off.
I know many cases fall into a somewhat vague space between but if I think those cases where we admit that if X happened relief is certainly appropriate and significant but don’t allow evidence about X to be submitted would benefit from reexamination (tho I don’t think travelban is one)
Posted by: Peter Michael Gerdes | Jan 14, 2019 10:17:34 AM