The Lawletter No. 51 Vol. 1
Nadine Roddy, Senior Attorney
On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit vacated a nationwide preliminary injunction blocking key provisions of two Executive Orders (“EOs”) issued by President Trump, finding that they were not facially unconstitutional. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, ___ F.4th ___, 2026 WL 321433 (4th Cir. Feb. 6, 2026).
EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” addressed diversity, equity, and inclusion (“DEI”) programs of federal agencies, grantees, and contractors. The court had previously stayed the injunction pending appeal. The three-judge panel remanded the case to the U.S. District Court for the District of Maryland for further proceedings, leaving open the possibility of challenges based on individual application of the EOs (“as applied” challenges).
At the outset of his second term, President Trump issued the EOs with the goal of eliminating “illegal” DEI programming in the government and private sectors. EO 14151 ordered each “agency, department, or commission head” to “terminate, to the maximum extent allowed by law, all ‘equity-related’ grants or contracts [the Termination Provision].” EO 14173 ordered agency heads to include provisions in every contract or grant award (1) certifying that the grantee did not operate any programs promoting DEI in violation of federal anti-discrimination laws, and (2) making compliance with federal anti-discrimination laws “material to the government’s payment decisions” for False Claims Act purposes (the Certification Provision). The EO also directed the Attorney General to submit recommendations and a strategic plan for enforcement actions to challenge illegal DEI “programs or principles . . . that constitute illegal discrimination or preferences” in the private sector (the Enforcement Threat Provision).
The plaintiffs—the Mayor and City Council of Baltimore, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and Restaurant Opportunities Centers United—filed suit against President Trump, Attorney General Bondi, and other federal agency heads, asserting that these and other provisions of the EOs violated the First and Fifth Amendments on their face.
In a decision issued on February 6, 2026, the Fourth Circuit first determined that the plaintiffs had standing to challenge the Termination and Certification Provisions of the Orders. However, they lacked standing to challenge the Enforcement Threat Provision, as that provision was purely intra-governmental, and the plaintiffs did not sufficiently allege an injury-in-fact.
Concerning the facial constitutionality of the Termination Provision, the plaintiffs asserted a Fifth Amendment challenge, arguing that the provision was unconstitutionally vague because it failed to define what constituted “equity-related” grants or contracts. The court disagreed, noting that the provision only “instruct[ed] the President’s subordinates to act, and then only ‘to the maximum extent allowed by law.’” 2026 WL 321433, at *8. Further, courts allow greater latitude for vagueness when the government acts as a funding patron—as in this case—rather than as a criminal or regulatory sovereign. Any uncertainty in how federal agencies apply the directive may give rise to as-applied legal challenges, but it does not render the provision facially invalid, the court concluded.
In its First Amendment challenge to the Certification Provision, the plaintiffs contended that the provision impermissibly discriminated based on viewpoint, and it also chilled protected speech by targeting DEI programs. The court disagreed once again, noting that the provision required only certification of compliance with existing federal anti-discrimination laws—laws with which the plaintiffs already had to be in compliance.
For these reasons, the court concluded that the plaintiffs were unlikely to succeed on the merits of their claims, and thus the permanent injunction would be vacated and the case remanded for further proceedings.
