Solicitor General Wall’s decision to focus over and over again on the theme of the “presumption of regularity” was a strategic success. Before the arguments, courts and commentators alike insisted that their analysis of the travel bans was nothing more than a routine, humdrum, run-of-the-mill application of easily-applicable precedent. It wasn’t. Since my very first writings on the cases, I noted that the courts were putting their thumb on the scale because of Trump.

Following my post on Tuesday about the “presumption of regularity,” many voices have openly admitted that Trump’s behavior has rebutted the usual “presumption of regularity,” and that courts can, and indeed have a duty, to put their thumb on the scale against the President. As I noted in response to Joshua Matz’s piece, I appreciate their candor. The terms of the debate are now on the table. According to their position, Trump’s egregious behavior, both before and after the inauguration, are factors that courts should consider when determining how to adjudicate his case.

The debate over the “presumption of regularity” has kicked into high gear with the firing of James Comey, and allegations of obstruction of justice. In a must-read piece, former WH Counsel Bob Bauer writes that prosecutors and courts alike should consider Trump’s careless trampling of long-standing norms:

Is there on these facts a risk of an investigable claim of attempted obstruction? As always in these matters, the facts govern. But here, again, is where the violation of norms may influence judgments, by prosecutors or courts, about whether an inquiry into this is justified.

This entire episode reminds me of the Court’s decision in Nixon v. GSA. In the wake of Nixon’s resignation, following disputes over the preservation of his secret recordings, Congress enacted a law directing the Administrator of General Services to take possession of the tapes. The statute provided, in part, that the Administrator:

shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which —

(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government;

(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and

(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974.

This statute is so obviously directed at punishing one person, and one person alone: Richard Nixon. It only stretched the dates of Nixon’s presidency (from his inauguration in 1969 to his resignation date). The argument that it was an unconstitutional bill of attainder should have been an absolute slam dunk. Yet, the Court rejected it. This passage from Justice Brennan’s majority opinion makes me wince every time I read it:

Thus, in the present case, the Act’s specificity — the fact that it refers to appellant by name — does not automatically offend the Bill of Attainder Clause. Indeed, viewed in context, the focus of the enactment can be fairly and rationally understood. It is true that Title I deals exclusively with appellant’s papers. But Title II casts a wider net by establishing a special commission to study and recommend appropriate legislation regarding the preservation of the records of future Presidents and all other federal officials. In this light, Congress’ action to preserve only appellant’s records is easily explained by the fact that, at the time of the Act’s passage, only his materials demanded immediate attention. . . . In short, appellant constituted a legitimate class of one, and this provides a basis for Congress’ decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors’ papers and ordering the further consideration of generalized standards to govern his successors.

Justice Brennan’s opinion specifically referenced Nixon’s efforts to resist investigations into his administration.

We have no doubt that Congress might have selected this course. It very well may be, however, that Congress chose not to do so on the view that a full-fledged judicial inquiry into appellant’s conduct and reliability would be no less punitive and intrusive than the solution actually adopted. For Congress doubtless was well aware that, just three months earlier, appellant had resisted efforts to subject himself and his records to the scrutiny of the Judicial Branch, United States v. Nixon, 418 U. S. 683 (1974), a position apparently maintained to this day.

In the next paragraph, Brennan turns around, and insists that these events had no bearing on the Court’s opinion.

We, of course, are not blind to appellant’s plea that we recognize the social and political realities of 1974. It was a period of political turbulence unprecedented in our history. But this Court is not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect. We are persuaded that none of these factors is suggestive that the Act is a punitive bill of attainder, or otherwise facially unconstitutional.

Color me skeptical.  Had Congress passed the exact same statute about a low-level government employee a year before Nixon took office, I have no doubt it would have been invalidated.

Justice Stevens’s concurring opinion attempts to gerrymanders the caselaw even more precisely to Nixon’s “class of one.”

Like the Court, however, I am persuaded that “appellant constituted a legitimate class of one. . . .” Ante at 433 U. S. 472. The opinion of the Court leaves unmentioned the two facts which I consider decisive in this regard. Appellant resigned his office under unique circumstances, and accepted a pardon for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents.Cf. Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 90-91. Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision. Since these facts provide a legitimate justification for the specificity of the statute, they also avoid the conclusion that this otherwise nonpunitive statute is made punitive by its specificity.

Chief Justice Burger’s solo dissent applies, what I think, is the “presumption of regularity” for Nixon’s presidency.

I see no escape, therefore, from the conclusion that, on the basis of more than 180 years’ history, the appellant has been deprived of a property right enjoyed by all other Presidents after leaving office, namely, the control of his Presidential papers.

Even more starkly, Title I deprives only one former President of the right vested by statute in other former Presidents by the 1955 Act — the right to have a Presidential library at a facility of his own choosing for the deposit of such Presidential papers as he unilaterally selects. Title I did not purport to repeal the Presidential Libraries Act; that statute remains in effect, available to present and future Presidents, and has already been availed of by former President Ford. The operative effect of Title I, therefore, is to exclude, by name, one former President, and deprive him of what his predecessors — and his successor — have already been allowed. This invokes what Mr. Justice Black said in Lovett could not be constitutionally done.

Indeed, Burger’s opinion specifically references the fact that Nixon “has incurred public disfavor and that of the Congress.”

Under the long line of our decisions, therefore, the Court has the heavy burden of demonstrating that legislation which singles out one named individual for deprivation — without any procedural safeguards — of what had, for nearly 200 years, been treated by all three branches of Government as private property, can survive the prohibition of the Bill of Attainder Clause. In deciding this case, the Court provides the basis for a future Congress to enact yet another Title I, directed at some future former President, or a Member of the House or the Senate, because the individual has incurred public disfavor and that of the Congress. Cf. Powell v. McCormack, 395 U. S. 486 (1969).

Burger writes that the concurring opinions make clear that a different set of rules are being applied to President Nixon:

The concurring opinions make explicit what is implicit throughout the Court’s opinion, i.e., (a) that Title I would be unconstitutional under separation of powers principles if it applied to any other President; (b) that the Court’s holding rests on appellant’s being a “legitimate class of one,” ante at 433 U. S. 472; and (c) that the Court’s holding “will not be a precedent.”

Congress, and thus the Courts, can’t bend the rules for a parties “uniqueness.”

The remaining question, then, is whether appellant’s “uniqueness” permits individualized legislation of the sort passed here. It does not. The point is not that Congress is powerless to act as to exigencies arising during or in the immediate aftermath of a particular administration; rather, the point is that Congress cannot punish a particular individual on account of his “uniqueness.” If Congress had declared forfeited appellant’s retirement pay to which he otherwise would be entitled, instead of confiscating his Presidential materials, it would not avoid the bill of attainder prohibition to say that appellant was guilty of unprecedented actions setting him apart from his predecessors in office. In short, appellant’s uniqueness does not justify serious deprivations of existing rights, including the statutory right abrogated by Title I to establish a Presidential library.

Under the “presumption of regularity,” and the application of long-standing precedent, Nixon should have won. He did not win because of who Nixon was. I stopped teaching this case in class, because invariably my explanation was “Brennan couldn’t rule for Nixon because Nixon.” That is not very satisfying so I cut it from the syllabus. But at bottom, the Court dropped the presumption of regularity for Nixon, and in the process heaped an entire clause of the Constitution into the dust bin of Article I. After Nixon v. GSA, the clause has no teeth.

I’ll close this post with a quote from Justice Scalia’s dissent in Morrison v. Olson that I have read to 5 or 6 reporters in the last 72  hours:

A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.

If judges abandon the “presumption of regularity,” even when abuse turns from “theoretical” to actual, they must be candid about what they are doing, as did Chief Justice Burger in dissent in Nixon v. GSA.

Of course, this is not to say that Congress must treat this situation as business as usual. As this situation unfolds, I expect the rigid party lines that have characterize most recent legislative battles to begin to soften. That, and not a judicial thumb on the scales of justice, is the appropriate response to the uniqueness of the situation in which we find ourselves.