President Donald Trump won a rare victory at the district court level on Friday when a judge in Washington, D.C., allowed the government to move full steam ahead with a series of executive orders aimed at rooting out “diversity, equity, and inclusion” (DEI) initiatives.

On Feb. 19, the National Urban League and others sued the Trump administration over several executive orders ending DEI programs in federal government contracts, barring the government from contracting with vendors who have internal DEI programs or that “promote the idea that transgender people exist,” and directing administrative agencies to only recognize “two sexes.”

In the original petition and a later-filed motion for a preliminary injunction, the plaintiffs alleged eight provisions in Trump’s anti-DEI orders ran afoul of the Fifth Amendment’s due process clause and the First Amendment’s guarantee of free speech, among other issues.

In a 58-page memorandum opinion, U.S. District Judge Timothy J. Kelly, who was appointed by Trump during his first term, rejected those claims, both procedurally and for their legal arguments.

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“For one reason or another, Plaintiffs’ claims are likely to fail,” the judge writes. “Some falter on standing—a prerequisite to success on the merits—and others on the underlying First and Fifth Amendment claims.”

The majority of the court’s opinion strikes a blow for the long-aggressive nature of Article III standing, which is widely understood by legal scholars as “conservative standing doctrine.”

This judicial theory was created in two cases from the 1920s by conservative judges who sought to restrain the use and limits of constitutional redress. In other words, standing doctrine was created – and has over time been honed and sustained – to limit citizens from suing the government over perceived violations of their rights. While technically procedural in nature, as opposed to relying on underlying arguments in a dispute, standing arguments are fact-intensive.

Kelly, for his part, quickly dispenses with how he views the facts in the case brought by the nonprofit organizations.

“For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing,” the opinion goes on. “Presidential directives to subordinates that inflict no concrete harm on private parties—or at least not on these parties—do not present a justiciable case or controversy.”

In the present case, the judge found many of the challenged provisions had to do with changing the government’s own behavior, and do not result in what, in standing doctrine legalese, is known as an “injury in fact.” This state of affairs, rather, turns the plaintiffs into “at most ‘concerned bystanders’ to internal Executive Branch processes.”

“Everything is intra-governmental,” the judge muses.

More Law&Crime coverage: ‘The opposite of diversity is segregation’: Judge castigates Trump over anti-DEI policies, but says he cannot intervene

In sum, Kelly found four of the challenged provisions asked “nothing from Plaintiffs—no compliance, no changed behavior, nothing at all” because those provisions are “not aimed at them” but instead tell “only the agencies to do something.”

For the remaining four challenged provisions, however, the court determined the plaintiffs did, in fact, have standing.

But the court still rejected their arguments as legally deficient.

“Plaintiffs have not shown that the provisions threaten a protected liberty or property interest—a threshold requirement for due process claims,” Kelly’s opinion continues. “And even if they had, Plaintiffs’ vagueness challenge fails for independent reasons. The First Amendment claim, moreover, clashes with two settled rules: the government does not abridge the right to free speech by choosing not to subsidize it, and that right does not permit Plaintiffs or anyone else to violate federal anti-discrimination law.”

One of the major problems, the court says, is that the plaintiffs argued a bit too much, resting their claims on so-called “facial rather than as-applied challenges.”

In lawsuits, government action can be challenged facially, meaning in general, or as-applied, meaning in a specific circumstance.

In the present case, Kelly suggests the plaintiffs would have been better off limiting their claims to more specific problems. Instead, they argued, as the judge framed the issues, that each of the challenged anti-DEI provisions “is unconstitutional in all its applications.”

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U.S. Supreme Court

Nonprofits that challenged mass firings didn’t have standing, Supreme Court says while staying rehiring order

By Debra Cassens Weiss

April 8, 2025, 1:31 pm CDT

The U.S. Supreme Court on Tuesday stayed a federal judge’s preliminary injunction that required the federal government to rehire as many as 16,000 fired probationary employees.

In its April 8 order, the Supreme Court said the injunction entered by Senior U.S. District Judge William H. Alsup of the Northern District of California was based solely on claims by nine nonprofit plaintiffs. But those groups did not have standing, the Supreme Court said.

The injunction was not based on claims by other plaintiffs in the lawsuit before Alsup. Alsup didn’t rule on claims by the labor union plaintiffs because he found that he probably didn’t have the power to hear them, according to SCOTUSblog.

The Supreme Court stay will remain in place throughout the litigation.

Justice Sonia Sotomayor and Justice Ketanji Brown Jackson dissented.

SCOTUSblog, the Washington Post, the New York Times and Politico are among the publications with coverage.

According to Politico, “the decision’s ultimate impact is murky because another federal judge has issued a separate order reinstating many of the same probationary workers.”

Alsup had granted the preliminary injunction in a March 13 ruling from the bench, he said in a March 14 memorandum opinion. He ordered the employees’ reinstatement based on a finding that the Office of Personnel Management had no authority to fire employees of another agency. That authority belongs to each agency, he said.

Alsup’s injunction reinstated probationary workers at the Department of Veterans Affairs, the Department of Agriculture, the Department of the Interior, the Department of Energy, the Department of Defense and the Department of the Treasury, according to a March 13 press release.

The government has contended that the firings can only be contested by individual employees before the Merit Systems Protection Board.

The case is Office of Personnel Management v. American Federation of Government Employees.

See also:

Judge orders Trump officials to offer jobs back to fired probationary workers

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