In a major setback for the Trump administration, the Supreme Court, in an unsigned opinion on December 23, declined to stay a lower court order barring the federal government from deploying the National Guard in Chicago. While welcome, the ruling is also in some ways narrow and kicks down the road many important issues. One of those issues, to my mind, is whether to rethink the presumption of regularity from which the federal government has long benefited as a litigant.

First, however, a few paragraphs on the ruling generally. To begin with, it conspicuously breaks the pattern by which the Court keeps granting the Trump administration stays of lower court rulings that restrain the administration’s ambitious assertions of presidential powers, thus allowing the power assertions to continue pending later court action. The split was 6–3 with a few wrinkles (Justice Brett Kavanaugh joined the majority but would have decided the case more narrowly. Justice Neil Gorsuch did not join the strongly written dissent by Justices Samuel Alito and Clarence Thomas and instead dissented more narrowly.)

The majority’s logic appears to carry over to some of Trump’s other deployments of the National Guard, and a week later, the administration announced that it was ending Guard deployments in Los Angeles and Portland, which had come under similar rebuffs at the lower court level. The terse majority opinion places much weight on an issue few initially saw as critical: how to interpret the use of the term “regular forces” in language empowering the president to federalize the Guard if he is “unable with the regular forces” to execute federal law. It also speaks the language of dry textualism rather than philosophical vision; Adam Unikowsky writes to explain why he sees that as a good thing.

Jack Goldsmith has offered a plausible analysis of some of the other issues in the case. Briefly: Trump retains many options not addressed by the Court; the statutory interpretation issues that the Court kicked down the road are quite complex; and the Court has not tipped its hand as to where it will come down on the inherent protective power theory cited by Trump and his backers as an argument for not needing any statutory basis at all for at least some of his troop deployments......

What is the presumption of regularity? An important multiauthored article at Just Security explains that it

is a judicially created doctrine with a long and contested history. The doctrine affords the executive branch a distinctive advantage not enjoyed by private litigants. It generally instructs courts to presume, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons.

For reasons both procedural and substantive, this convenient presumption helps the government prevail over many legal challenges and escape scrutiny entirely on others. Perhaps (or perhaps not) at some point in the past, the conduct of America’s executive branch was so upright and beyond reproach as to make judges feel comfortable in presuming good motivation and lawfulness. But this past year? The Just Security survey compiles dozens of instances over the past year in which the executive’s representations to courts or actions in connection with them have been in bad faith, motivated by retaliation, arbitrary or capricious, in defiance of court orders or established law, or—again and again—baldly untruthful. Others have compiled shorter lists, sometimes based on the government’s misconduct before individual judges such as James Boasburg (D.D.C.) and Paula Xinis (D. Md.); I assembled a few in my piece on contempt of court way back in May 2025.