Presumption of Irregularity
We don't have to be naive
The key to understanding the Trump administration is to assume it’s mostly bullshitting.
My assumption, as a forecaster, is that the Trump administration is mostly just bullshitting. You can be confident that when the administration makes a major decision it was the product of some half-assed impulse rather than careful expert deliberation. When a high-level official makes a statement, it’s a safe bet they’re talking out their ass. They approach press appearances like students who haven’t finished their presentation, freestyling a stream of meaningless platitudes, aggressive deflections, outlandish boasts, and straight out gibberish. There are still a few pockets of professional competence within the administration, but on major issues capable civil servants have been sidelined by the political commissars, policy dilettantes, and MAGA influencers who run the administration.
In the US legal system, the executive branch is typically afforded a “presumption of regularity.” Courts are instructed to presume that public officers “have properly discharged their official duties” unless there is clear evidence to the contrary. They defer to the executive branch on certain questions of fact unless there’s good reason to think it is misrepresenting them. More broadly, courts prefer to assume that officials are acting appropriately, reasonably, and in good faith. This allows the courts not to scrutinize and second guess every executive decision. The executive branch, for its part, generally tries to earn the courts’ trust so that they don’t have good reason to question its decisions. Ideally, the presumption of regularity is one side of a good working relationship between the executive branch and the courts.
That relationship has broken down under Trump. It had already begun to break down under the first Trump administration. At one point, the Supreme Court ruled that the Commerce Department had “contrived” a pretext for including a citizenship question in the national census rather than providing a good faith justification for the administration’s actions. In the majority opinion, Chief Justice John Roberts wrote that while the court would normally defer to the executive branch, it was “not required to exhibit a naiveté from which ordinary citizens are free.”1 The working relationship between the courts and the executive has largely collapsed in Trump’s second term. A Just Security study found a large number of cases in which courts expressed concern that the administration wasn’t complying with judicial orders, was lying to the court or making false representations, or was acting arbitrarily and capriciously. In March, when US District Court Judge James E. Boasberg quashed grand jury subpoenas targeting then Fed Chair Jerome Powell, for example, he wrote that the government had “offered no evidence whatsoever that Powell committed any crime other than displeasing the President.”2 US District Court Judge Paul L. Friedman put it plainly in a different case last year when he wrote that “the President of the United States may have forfeited the right to such a presumption of regularity.”3
The Trump administration has forfeited any right to a presumption of regularity in other areas too. As a rule, when forecasting anything involving the administration, I assume that administration officials haven’t “properly discharged their official duties.” I assume their decision making process was ad hoc and impulsive, and that their statements don’t have any necessary basis in fact. The tariffs they propose were probably not well thought out; Iran probably didn’t agree to what they say it did; they probably didn’t hire the best pool guys. Their consistently irregular behavior is a reflection of their general governing philosophy. It shouldn’t matter whether what they do is appropriate or makes sense, since their authority is absolute. They see even questioning the quality of their judgment as a kind of disloyalty. In this view, governing is something they’re entitled to do, rather than something they have a responsibility to do well. As a result, officials capable of doing the normal work of government have largely been replaced by toadies who don’t have the skill or knowledge it would require. We shouldn’t continue to treat this administration with deference it clearly doesn’t deserve. I realize it’s shocking our government is like this. But we don’t have to be naive.
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