Pro-DEI Litigation Update: Challenges to Trump's Executive Orders

Three lawsuits have been filed to challenge President Trump’s anti-DEI and anti-trans executive orders. The specific facts and legal arguments in each case are detailed in our DEI Litigation Tracker, which now includes both anti-DEI and pro-DEI litigation. However, this update provides additional context to help you better understand the legal efforts taking place in support of DEI.

What is an executive order?

An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government.* While an executive order has the force of law, the president can only issue executive orders within the powers granted by the Constitution and federal laws. For example, the president cannot use an executive order to change a law passed by Congress.

What are the legal issues in these cases? Why are the executive orders being challenged?

Although each case has its own nuances, the key legal arguments are:

• Unconstitutionally vague – The Constitution requires laws to be clear so that individuals understand what conduct is compliant. If a reasonable person cannot determine what is legal or illegal under the law, it may be struck down as “unconstitutionally vague.” These lawsuits argue that Trump’s anti-DEI executive orders fail this standard by making it unclear what DEI-related activities are prohibited.

• Chilling free speech – Private individuals and organizations have broad, fundamental First Amendment rights to free speech—the ability to express their views without fear of government punishment, with some exceptions. These lawsuits argue that Trump’s executive orders censor or deter organizations by signaling that the federal government will cut funding or even target organizations that express DEI-related views the administration opposes.

• Discriminating against marginalized groups – The Equal Protection Clause prohibits the government from denying equal protection under the law. The plaintiffs in National Urban League et al v. Trump et al argue that Trump’s executive orders were intended to discriminate against Black individuals specifically, people of color generally, women, and LGBTQ individuals, by eliminating programs and services designed to address harms and disadvantages disproportionately impacting these groups.

• Usurping Congress’s authority – Under the Constitution, Congress holds ultimate authority over federal government spending. As noted above, the president can only issue executive orders that he has been granted the power to enforce or implement by the Constitution or federal laws. In these cases, the plaintiffs argue that Trump’s executive orders overstepped this authority by requiring the termination of certain contracts or grants related to “equity.”

What’s the likely outcome of these challenges?

Since these cases were filed in the past few months, it is still early in the litigation process. In National Association of Diversity Officers in Higher Education et al v. Trump et al, a judge granted a preliminary injunction, finding a high likelihood that the executive orders were unconstitutionally vague and violated free speech, with respect to certain provisions in the executive orders. However, the appeals court has halted that decision, meaning that the parts of the executive orders being challenged will stay in place for now as the case moves forward. We will keep you updated on any new developments in pro-DEI litigation.

* Definition from the American Bar Association, What Is an Executive Order?, November 27, 2018: https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/