The presumption of regularity

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim.

“I was improperly discharged.”

A: “We can’t find any record of your discharge.  Because of that we consider you properly discharged, because we presume the command did it right.  No, we can’t and don’t have to explain why there is no record of this.”

Here is an article worth-the-read:  Note: The Presumption of Regularity in Judicial Review of the Executive Branch, 131 HARV. L. REV. 2431 (2018).

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,” United States v. Chem. Found., Inc., 272 U.S. 1, 15 (1926). until the challenger presents “clear evidence to the contrary.”

The presumption of regularity is a deference doctrine: it credits to the executive branch certain facts about what happened and why and, in doing so, narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes.

This Note does three things: First, it improves our understanding of the presumption of regularity through a basic typology of the Supreme Court cases. Second, in Parts II and III, it reconstructs the theory of administrative regularity that appears to underlie the doctrine. Finally, also in Parts II and III, it sheds light on how the presumption has evolved alongside the Court’s attitude toward administration.

Contact Information