Anti-DEI Executive Orders Can Go Forward, for Now, Says Federal Appeals Court
From yesterday’s decision in Nat’l Ass’n of Diversity Officers in Higher Ed. v. Trump, by Chief Judge Albert Diaz, with Judges Pamela Harris and Allison Rushing concurring:
Pending before the court is the government’s Motion for a Stay Pending Appeal. The case concerns two Executive Orders [14,151 & 14,173] that instruct executive agencies to end “diversity, equity, and inclusion” (or “DEI”) programs within federal grant and contract processes. The plaintiffs—the Mayor and City Council of Baltimore, Maryland and three national associations—moved to preliminarily enjoin the government’s enforcement of the Orders, challenging the constitutionality of three of the Orders’ provisions under the First and Fifth Amendments.
The district court found the provisions likely unconstitutional and issued a nationwide injunction barring defendants from enforcing those provisions against both the plaintiffs and “similarly situated non-parties.” After the government appealed that injunction to this Court, the district court entered an order clarifying that its preliminary injunction “applies to and binds Defendants … as well as other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions.” The government now seeks a stay of the district court’s preliminary injunction, or asks that it be limited only to the plaintiffs and named defendants.
Having reviewed the record, the district court’s opinion, and the parties’ briefing, we agree with the government that it has satisfied the factors for a stay under Nken v. Holder (2009). We therefore grant the government’s motion for a stay of the preliminary injunction. The Clerk will set an expedited briefing schedule after consultation with the parties.
Chief Judge Diaz also wrote a separate opinion:
I’m satisfied for now that the government has met its burden justifying a stay of the district court’s injunction pending appeal. So I join in the order granting the government’s motion and in Judge Harris’s separate opinion explaining why. {Like [Judge Harris], I too reserve judgment on how the administration enforces these executive orders, which may well implicate cognizable First and Fifth Amendment concerns. I likewise reserve judgment on the extent to which the government relies on the Orders’ savings clause provisions as it enforces the Orders’ directives against federal contractors, grantees, and private entities. See, e.g., City & Cnty. of San Francisco v. Trump (9th Cir. 2018) (declining to give effect to savings clause where that clause “in [] context” would “override clear and specific language,” and render “judicial review a meaningless exercise”).}
But I’m compelled to write separatel
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