A federal appeals court on Friday temporarily allowed the Trump administration to implement some of the president’s executive orders that roll back diversity, equity, and inclusion (DEI) programs in federal agencies.
The three-judge panel on the appeals court unanimously agreed to grant the administration’s motion to stay the injunction on two executive orders, noting that the administration is likely to succeed in its appeal.
In explaining her vote to grant the stay, U.S. Circuit Judge Pamela Harris said the Trump administration has demonstrated a requisite likelihood that the challenged provisions do not inherently violate the Constitution.
Harris stated that the order requiring certifications from grantees applies only to conduct that violates existing federal anti-discrimination laws, and that it does not allow terminating grants “based on a grantee’s speech or activities outside the scope of the funded activities.”
However, the judge stated that her vote to grant the stay comes with a caveat that the orders would violate the Constitution if enforced beyond their provisions.
“What the Orders say on their face and how they are enforced are two different things,” Harris wrote in an opinion. “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.”
Circuit Judge Albert Diaz stated in a separate opinion that, like Harris, he reserves judgment on how the administration enforces the orders. Diaz emphasized that agency actions exceeding their scope could implicate “Fifth Amendment vagueness concerns.”
Diaz also defended DEI initiatives, saying that “people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”
Circuit Judge Allison Rushing agreed on the need to stay the preliminary injunction but emphasized that a judge’s personal views on DEI programs “should play absolutely no part in deciding this case.”
“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,” Rushing stated in an opinion.
The decision, which came in response to a lawsuit filed by the city of Baltimore and higher education groups, will remain in place pending the outcome of the Trump administration’s appeal.
The White House did not respond to a request for comment by publication time.
A spokesperson for Democracy Forward, representing the plaintiffs, said the group was reviewing the decision.
