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Why Does the Supreme Court Treat Trump Like a “Regular” President?

The emperor is stark naked, but thanks to a misguided legal doctrine, the Republican justices keep insisting he’s fully clothed.

“The greatest trick the devil ever pulled was convincing the world he didn’t exist.” Apparently, this famous quote was written by the 19th-century French poet Charles Baudelaire, but I first heard the line in the movie The Usual Suspects. I think about it often, as it encapsulates Donald Trump’s relationship with the Republicans on the Supreme Court.

The Donald Trump who exists in the real world—the racist, fascist sexual predator who happily tweets out the illegal and unconstitutional motivations for his policies—does not exist according to the Supreme Court. Instead, the court has invented a different Trump, one who does not speak, does not lie, and adheres to the well-established norms regarding the use of executive power. It has dreamed up a normal US president, grafted this creation onto Trump’s legal filings, and then ruled as if this fiction were reality.

There is a legal doctrine that explains what I believe the Supreme Court is doing: the “presumption of regularity,” which dates at least as far back as 1926. This doctrine instructs courts to assume that members of the executive branch have acted properly and in good faith. An administration is presumed to have bona fide reasons for its actions, and those actions are assumed not to be “pretextual,” meaning that courts are not supposed to act like the administration has invented a plausibly legal reason to justify its plainly illegal actions. The presumption of regularity is afforded to members of the executive branch and no one else. Only they can waltz into court and expect people to take them at their word.

We hear the Supreme Court invoke the presumption of regularity all the time, especially during oral arguments, when the justices talk about giving “deference” to the administration. This administration deserves no deference, because it lies all the time. But the presumption of regularity instructs the court to defer to the administration and assume it is telling the truth.

The result is that the court presumes Trump had a good reason for shutting down DEI programs, even when there is clear evidence of the flagrant racism behind such actions. It presumes the administration tried its best to follow the rules before taking a chainsaw to the administrative state—even though it was a private billionaire who did the cutting, in violation of all the rules. And it presumes there’s a real national emergency simply because the president said so—never mind that the only national emergency is the armed goons invading our cities.

In embracing this doctrine, the Supreme Court is asking us to do something patently insane—and one of the many ways we know this is that many other courts are refusing to fall for the trick. A study released by the digital law........

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