On March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit issued an order staying the nationwide preliminary injunction against EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) that was issued by the district court for the District of Maryland on February 21, 2025. As a result of this decision, the Trump Administration is authorized to enforce the certification requirement for federal contractors provided for in EO 14173 while the challenge to that EO continues.
The three sentence order from the Court of Appeals granting the stay requested by the Trump Administration said only that the stay was being granted because the government “has satisfied the factors for a stay” under the governing case law. While no opinion accompanied the Order, each of the judges on the panel issued a concurrence to the Order, which set forth some of each judge’s reasons for voting for the stay.
Judge Harris’s concurrence noted that the Executive Orders “on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood. Instead, the so-called ‘Certification’ and ‘Enforcement Threat’ provisions apply only to conduct that violates existing federal anti-discrimination law.” She noted further, however, that “what the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.”
Chief Judge Diaz joined Judge Harris’s concurrence. He also noted that “at this preliminary stage of the litigation, where the Orders only purport to direct executive policy and actors, we don’t find vagueness principles outcome determinative.” However, he underscored that “agency action that goes beyond the narrow scope set out in this motion could implicate Fifth Amendment vagueness concerns.” Chief Judge Diaz also stated that “despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium” and that “all Americans should be able to freely consider how to continue empowering historically disadvantaged groups, while not reducing the individuals within those groups to an assigned racial [or sex-based] identity.”
Judge Rushing stated that “the government is likely to succeed in demonstrating that the challenged provisions of the Executive Orders—all of which are directives from the President to his officers—do not violate the First or Fifth Amendments.” She also noted that “as Judge Harris rightly points out, this case does not challenge any particular agency action implementing the Executive Orders.” And she stated that “a judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
As noted above, this Court Order addressed only the question of whether to stay the EOs while the legal case challenging them is pursued. That legal case is still on-going. We continue to monitor closely developments in this case and all developments as to the implementation of President Trump’s Executive Orders.