4th Circuit Lifts Nationwide Injunction on DEI Executive Orders

The 4th U.S. Circuit Court of Appeals has lifted a nationwide injunction on the diversity, equity, and inclusion (DEI) executive orders, permitting them to be enforced while litigation continues. We’ve gathered articles on the news from trusted outlets.

Judges’ Reasoning

The three judges found that while actions taken by the federal agencies under the orders could ultimately be deemed unconstitutional, the orders as written are not unconstitutional.  

One judge said that the executive orders are “distinctly limited in scope” and “do not purport to establish the illegality of all efforts to advance diversity, equity, or inclusion,” but instead apply only to “conduct that violates existing federal anti-discrimination law.” 

Two of the judges on the 4th Circuit said the DEI executive orders could eventually raise First Amendment concerns but said the district court judge’s injunction went too far. One of these judges wrote, “Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”

However, a third judge wrote, “Any individual judge’s view on whether certain executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration.” She added, “A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”

3 Key Provisions Restored

The 4th Circuit’s decision restores the government’s ability to enforce three key provisions that had been enjoined by the district court, according to Seyfarth: 

First, federal agencies may now implement the “termination provision” from Executive Order 14151 that directs them to “terminate ... all … ‘equity-related’ grants or contracts” within 60 days.

Second, federal agencies can now require contractors and grantees to certify both that “compliance in all respects with all applicable federal anti-discrimination laws is material to the government’s payment decisions” for False Claims Act purposes and that “it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”

Third, federal agencies may now bring enforcement actions against publicly traded corporations based on the “enforcement threat provision” in Executive Order 14173, which directs “all federal agencies, with the attorney general’s assistance” to take “appropriate measures” to end “illegal discrimination and preferences, including DEI” in the private sector.

Status of Litigation 

The 4th Circuit has ordered expedited briefing for the full appeal, meaning the court has directed parties to submit briefs more quickly than usual. 

The case — brought by a group of plaintiffs, including the National Association of Diversity Officers in Higher Education and Baltimore city officials — is one of at least three federal suits challenging the constitutionality of the DEI executive orders, Bloomberg reports.