On February 21, 2025, the Federal District Court for the District of Maryland (“the Court”) issued a nationwide preliminary injunction pausing three provisions contained in two of President Trump’s Executive Orders (Executive Orders 14173 and 14151). The plaintiffs challenged three specific provisions in the Executive Orders by arguing that each was likely to be found unconstitutional. The three provisions all relate to Diversity, Equity and Inclusion (“DEI”) programs:
- Requiring federal agencies to terminate equity-related grants or contracts (the “Termination Provision”);
- Requiring federal contractors and grant recipients to include in federal contracts or grant awards a certification enforceable through the False Claims Act (“FCA”) that the contractor or grantee does not operate illegal DEI programs (the “Certification Provision”); and
- Directing the attorney general to take appropriate measures to “deter DEI programs or principles” in the private sector (the “Enforcement Threat Provision”).
The Court held that the Termination Provision and Enforcement Threat Provision were likely unconstitutionally vague with respect to core, undefined terms including “equity,” “equity-related,” “DEI” and “illegal DEI.” This holding means that, in the judge’s opinion, the Executive Order likely creates a threat of injury to constitutionally protected interests, including property, while failing to give the plaintiffs and similarly situated entities fair notice of what they may or may not do if they want to avoid such injury. In addition, the Court held that the Certification and Enforcement Threat Provisions are content and viewpoint-based restrictions that are likely to unconstitutionally chill freedom of expression as to viewpoints supportive of equity, diversity and inclusion. Under longstanding Supreme Court precedent, the First Amendment prohibits the exercise of governmental power to suppress the expression of viewpoints with which the government disagrees.
The Court considered, not only the Executive Orders themselves, but the acts of agencies in the enforcement of the Executive Orders. For example, while the Executive Orders carefully addressed only “illegal DEI,” the Centers for Disease Control and Prevention advised grant recipients that grantees “must immediately terminate, to the maximum extent, all programs, personnel, activities, or contracts promoting ‘diversity, equity, and inclusion’ (DEI) at every level and activity, regardless of [their] location or the citizenship of employees or contractors, that are supported with funds from this award.” The Attorney General sent a memorandum to all Department of Justice departments advising that each must submit a report “[c]onfirming the termination, to the maximum extent allowed by law, of … all ‘equity-related’ grants or contracts”; “[i]dentifying federal contractors … and grantees who have provided DEI training or DEI training materials to agency or department employees since January 20, 2021.” Other agencies, as well, issued directives that addressed equity and DEI without limiting them to “illegal DEI.”
The Department of Health and Human Services demanded that the city of Baltimore “immediately terminate” all activities “promoting ‘diversity, equity, and inclusion’” “that are supported with funds from [a CDC] award” in light of the Executive Orders. Baltimore also received notice that AmeriCorps programs were being reviewed, not because they were in violation of federal law, but because they contained words like “Diversity,” “Equity,” “Equity Action Plan,” and “DEI,” as well as “Environmental Justice” and “Climate Change.”
Because “equity” and “DEI” were not defined by the Executive Orders, and because they were not limited in practice to violations of existing federal law, the meaning of the terms was vague and opened up the opportunity for selective viewpoint-based enforcement, thus violating both the Fifth Amendment (for vagueness) and the First Amendment (for viewpoint discrimination).
In a prior post, Hall Render pointed out that Executive Order 14173 was of particular concern for health care providers because it would require entities that receive federal funding, including Medicare/Medicaid participants, to certify that they are fully compliant with anti-discrimination laws (targeting what the current administration views as “illegal DEI” programs), and that this certification was a “material” representation such that if it proved untrue, the provider could be liable under the FCA. The preliminary injunction specifically addressed this concern, particularly noting that the application of the Executive Order did not appear to be limited to programs that violate existing anti-discrimination laws because even the government, when asked, could not distinguish between programs that were unlawful and those that might be unlawful, and because application and enforcement were not limited to programs that were unlawful.
It is likely that the focus, on appeal, will be the difference between the plain language of the order, which is limited to “illegal DEI programs,” and the application and enforcement, which is far broader and clearly implicates viewpoint-based enforcement.
The actual language of the preliminary injunction entered by the Court is as follows:
Defendants other than the President, and other persons who are in active concert or participation with defendants (“Enjoined Parties”), shall not:
- Pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations (“Current Obligations”), or change the terms of any Current Obligation, on the basis of the Termination Provision;
- Require any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; or
- Bring any FCA enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any FCA enforcement action premised on any certification made pursuant to the Certification Provision.
The Trump administration is likely to appeal the ruling. If you have any questions about this topic or would like additional information, please contact:
- Brian Sabey at (720) 282-2025 or bsabey@hallrender.com;
- David Honig at (317) 977-1447 or dhonig@hallrender.com;
- Jonathan Bumgarner at (317) 977-1474 or jbumgarner@hallrender.com;
- Charles Roozen at (414) 721-0919 or croozen@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
