The definitions in our glossary are primarily sourced from Nolo’s Plain-English Law Dictionary and Cornell Law School’s Legal Information Institute. We have made slight modifications where needed for brevity and to better tailor the definitions to the specific needs of users of this website. For more detailed explanations of the terms, users are encouraged to review the definitions on these websites or conduct their own independent research.
Explainer
Pro-DEI Litigation Update: Challenges to Trump's Executive Orders
Advancing DEI Initiative
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?
These cases are still in its early stages, so it may be some time before a final outcome is clear. We’ll continue to keep you informed about 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-/