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THE PRESUMPTION OF REGULARITY IN JUDICIAL REVIEW OF THE EXECUTIVE BRANCH

The Trump Administration’s ban on entry into the United States by nationals from several majority-Muslim countries1 sparked controversy about when courts should credit the executive branch’s factual assertions about its motives and decisionmaking processes. When a plaintiff alleges that the governme...

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Bibliographic Details
Published in:Harvard law review 2018-06, Vol.131 (8), p.2431-2452
Main Author: Harvard Law Review
Format: Article
Language:English
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Online Access:Get full text
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Summary:The Trump Administration’s ban on entry into the United States by nationals from several majority-Muslim countries1 sparked controversy about when courts should credit the executive branch’s factual assertions about its motives and decisionmaking processes. When a plaintiff alleges that the government skirted procedures or acted on illicit motives, courts will sometimes “presume” that “official duties” have been “properly discharged” until the challenger presents “clear evidence to the contrary.” This “presumption of regularity” has common law origins. In the litigation over the constitutionality of the entry ban, the government asserted that the presumption, “which is magnified here by respect for the head of a coordinate Branch, counsels crediting the Order’s stated national-security purpose absent the clearest showing to the contrary.” The challengers argued that President Donald Trump’s statements calling for a Muslim ban should be considered as clear evidence of an unconstitutional motive to exclude Muslims.
ISSN:0017-811X
2161-976X