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‘Is this a throwback to the McCarthy era?’ Judges consider injunction bids by firms targeted in Trump orders

homesafetytechpros — Wed, 07 May 2025 04:25:11 +0000

Law Firms

‘Is this a throwback to the McCarthy era?’ Judges consider injunction bids by firms targeted in Trump orders

April 24, 2025, 10:57 am CDT

Then-Chief U.S. District Judge Beryl A. Howell of the District of Columbia listens during an investiture ceremony in April 2018 in Washington, D.C. (Photo by Alex Wong/Getty Images)

Two federal judges sharply questioned a government lawyer Wednesday as they considered bids by Perkins Coie and Wilmer Cutler Pickering Hale and Dorr to permanently enjoin executive orders that target them and their clients.

“Is this a throwback to the McCarthy era, the Red Scare era?” asked U.S. District Judge Beryl A. Howell of Washington, D.C., in the Perkins Coie case. Howell was questioning Department of Justice lawyer Richard Lawson, according to Law360.

Publications with coverage, in addition to Law360, include the New York Times, Reuters, Bloomberg Law and Law.com (here and here).

Lawson argued for the government in the cases before Howell and U.S. District Judge Richard J. Leon, both of whom are located in the District of Columbia.

Perkins Coie and WilmerHale are among four law firms that filed lawsuits to challenge the executive orders that typically seek the suspension of lawyers’ security clearances; restrict their access to government buildings; and call for termination of government contracts for which the firms were hired to provide services, including clients’ government contracts.

Targeted firms have represented clients and worked on causes opposed by President Donald Trump.

Howell asked the “throwback” question after noting a declaration from a former Department of Defense official who oversaw security clearances. He said a blanket suspension of clearances, as called for in the executive orders, “harkens back to the repudiated and discredited programs,” including the Red Scare.

Arguing for Perkins Coie, Dane H. Butswinkas, a partner at Williams & Connolly, said Trump’s actions stem from “the playbook of authoritarianism,” according to Bloomberg Law.

“This is exactly the kind of conduct the Constitution forbids,” Butswinkas said.

Butswinkas said the executive orders targeted lawyers who are no longer with the firms, according to Law.com.

“It sounds more like national insecurity than national security,” he said.

In the hearing before Leon, Lawson said the orders are a valid exercise of executive function rather than punishments for First Amendment activities.

Leon questioned that assertion, Law360 reports.

“It’s pretty clear it’s retaliation,” Leon said, “at least to this court.”

Arguing for WilmerHale, Paul D. Clement of Clement & Murphy said the executive orders “are a direct and lethal threat to an independent bar,” according to Law360.

“The signal it sends to the whole bar is, ‘Watch out,’” Clement said.

Nine firms have reached deals with Trump to avoid executive orders. The deals typically provide that the firms will provide pro bono services for projects mutually supported by the firms and Trump. Amounts of pro bono pledged range from $40 million to $125 million.

Above the Law has created a list of firm actions in response to the Trump administration in its “BigLaw Spine Index.”

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Citing ‘anti-democratic takeover’ by ‘activist’ plaintiffs, Trump seeks money bond for injunction requests

homesafetytechpros — Sun, 16 Mar 2025 07:06:14 +0000

Civil Procedure

Citing ‘anti-democratic takeover’ by ‘activist’ plaintiffs, Trump seeks money bond for injunction requests

By Debra Cassens Weiss

March 13, 2025, 3:38 pm CDT

President Donald Trump is directing federal agencies to seek a money bond when plaintiffs file federal lawsuits against the administration that seek temporary restraining orders or preliminary injunctions. (Image from Shutterstock)

“In recent weeks,” Trump said in a March 11 memo, “activist organizations fueled by hundreds of millions of dollars in donations and sometimes even government grants have obtained sweeping injunctions” that meddle in executive policymaking.

To deter frivolous litigation, Trump said, parties seeking injunctions against the federal government should be required under Rule 65(c) of the Federal Rules of Civil Procedure to post security that would cover potential costs and damages from a wrongly issued injunction.

A White House fact sheet said injunctions “can cost taxpayers millions or even billions of dollars, especially when they mandate continued funding.”

Several judges have denied bond requests, including U.S. District Judge Adam B. Abelson of the District of Maryland, according to Bloomberg Law and Law & Crime.

Courts have frequently waived bond requirements “where a fundamental constitutional right is at stake,” Abelson wrote.

U.S. District Judge Loren L. AliKhan of the District of Columbia also denied bond in a challenge to a Trump administration funding freeze, according to Bloomberg Law, Reuters and Law & Crime.

“In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic—and contravene the very basis of this opinion—to hold plaintiffs hostage for the resulting harm,” AliKhan said in granting a preliminary injunction to the plaintiffs.

U.S. District Judge Brendan A. Hurson of the District of Maryland also refused to require a bond in a challenge to anti-LGBTQ executive orders, Law.com reports.

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Judge skeptical of Trump admin compliance with injunction

homesafetytechpros — Sat, 15 Mar 2025 10:45:27 +0000

President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).

A federal judge on Friday said it was “very concerning” that the Trump administration might not be complying with an injunction barring the government from trying to root out “diversity, equity, and inclusion” (DEI) initiatives.

During an emergency motion for a status conference, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, tried to keep arguments to a minimum but allowed the parties some latitude to discuss the issue that necessitated the hastily-scheduled hearing.

That issue, according to the plaintiffs, is that language barred by the court’s orders continues to be used by administrative agencies.

An attorney for the National Association of Diversity Officers in Higher Education, the lead plaintiffs in the case, highlighted a proposed contract between the Department of Housing and Urban Development (HUD) and the City of Baltimore as indicative of the alleged flouting. That agreement states the city must “certif[y] that it does not operate programs promoting diversity, equity, and inclusion that violate any applicable anti-discrimination laws.” Substantially similar language appeared in a contract provided to San Francisco.

A lawyer for the Department of Justice acknowledged the problem.

“HUD is working toward remedying this particular provision,” the DOJ attorney told the court. “Baltimore is not going to be required to sign that in order to receive its funding.”

While the government attorney did not put up a fight over whether the language in question violates the court’s orders, she suggested that perhaps the cities had been privy to language culled from a “template” that should not have been used. Specifically, she said San Francisco might have inadvertently been sent a template while saying she was unaware of what Baltimore had been sent because the filing had just appeared on the court docket right before the hearing.

The attorney went on to stress that no additional direction, in the way of another court order, was necessary to enforce compliance.

While the court seemed to accept the mea culpa, the judge said he wanted to make clear that Baltimore was going to be able to enter into the contract and still obtain the funds from the agency.

Again, the government proffered compliance.

“HUD is going to be reissuing a contract that doesn’t include this provision,” the DOJ lawyer reiterated. “HUD can reissue the contract or do whatever it is necessary.”

Back at the dais, the plaintiffs’ attorney was gracious.

“Baltimore will be thrilled to have that from the Department of Justice,” the group’s lawyer said — while also sounding a note of caution.

The plaintiffs’ attorney noted that HUD Secretary Scott Turner shared the disputed contract template on Thursday. In fact, in a post on X (formerly Twitter), Turner shared the template with the relevant language singled out by traditional yellow highlight.

After that, the plaintiffs’ attorney suggested there was a widespread problem with agencies just copying and pasting language from the court’s order and deleting some of the words in an effort to perform an end-run around the injunctions. The group’s lawyer added that San Francisco did receive an actual contract with the verboten language — and said that “hundreds of others” received such contracts.

In the underlying litigation, the membership organization complained about executive orders in which President Donald Trump sought to terminate contracts related to DEI and certify that no new contracts would fund any kind of DEI programs. The group also took issue with a directive to the U.S. Attorney General to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to effectuate such deterrence.

In a series of court orders, Abelson barred each of the three anti-DEI directives.

On Feb. 21, the judge issued a preliminary nationwide injunction finding the challenged provisions “abridge the freedom of speech” and are “unconstitutionally vague on their face.” On Feb. 25, the government filed a motion to stay the court’s order pending appeal. On Feb. 28, the plaintiffs in the case urged the judge to stick to his guns. On March 3, the court denied the motion to stay with an order containing a lengthy lecture about the First Amendment.

On March 10, in two subsequent rulings — a clarified injunction and a memorandum opinion — the judge stressed that the injunction is truly nationwide and applies to the government writ large.

During Friday’s hearing, the plaintiffs took the opportunity to ask the DOJ lawyer to admit, on the record, that the government would not stand by the anti-DEI contract language. The judge, in turn, asked the government lawyer if she would attest to that.

This time, a bit of recalcitrance emerged.

“This certification provision is unenforceable,” the DOJ attorney said — while adding that the real-time application of the court’s order will not happen overnight in a federal government with some “two million employees” and was “just not realistic.” She went on to say the plaintiffs might believe “the government is one unified whole in the abstract” but that such an understanding is off base.

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“Me representing that on this call will not do what the counterparties need,” the government lawyer said. “We’re asking for some break here.”

The judge followed up to say it seemed like the government agreed that the anti-DEI language on contracts issued after the injunction would not be enforced — but stressed that his orders not only cover the enforcement directive but also the certification directive.

Abelson said it was “very concerning” the certification portion of the injunction “may not have been fully complied with by the government.”

The status conference ended with the judge agreeing with the plaintiffs that a shorter briefing schedule is appropriate over the certification issue. A scheduling order is forthcoming, the judge said.

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Trump says injunction barring spending freeze was limited

homesafetytechpros — Sat, 08 Mar 2025 15:41:12 +0000

FILE — President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).

The Trump administration and a collection of nonprofits are fiercely arguing over the scope of a weeks-old court order that pumped the brakes on the controversial government spending freeze.

On Jan. 28, the National Council of Nonprofits (NCN) filed one of the first lawsuits against the defunding scheme. That same day, U.S. District Judge Loren L. AliKhan, a Joe Biden appointee, issued a stay on the freeze — which she later extended into a temporary restraining order. On Feb. 25, the judge issued a preliminary injunction.

On March 4, the plaintiffs accused the government of effectively violating the terms of the injunction by way of a “cramped interpretation” that has frozen some $3.6 billion in anti-homelessness funds that were previously “awarded to various grant recipients.”

On Friday, the U.S. Department of Justice fired back — accusing the plaintiffs of trying to squeeze “broader” relief out of the court.

“Plaintiffs’ requested relief highlights that they are seeking to use this Court as a superintendent over Executive Branch decisions relating to the obligation of funding,” the government’s response argues.

The disputed language bars agencies “from implementing, giving effect to, or reinstating under a different name the directives in” the Office of Management and Budget (OMB) memorandum “with respect to the disbursement of Federal funds under all open awards.”

To hear the plaintiffs tell it, this language means the government has to fund grants that have been awarded but not yet paid.

The government, however, citing the original temporary restraining order, says the court defined “open awards” in a more limited fashion as “ones that have already been approved and partially disbursed.”

The injunction itself does not purport to define “open awards.” So, the nonprofits are asking AliKhan what she meant by that phrase.

“[Defendants] interpret the Court’s references to ‘all open awards’ in the preliminary injunction order to mean not ‘all’ open awards but instead only those open awards that have been ‘partially disbursed,”” the motion to clarify reads. “Plaintiffs respectfully submit that Defendants’ approach does not accord with either the letter or the reasoning of the Court’s preliminary injunction order and decision.”

The nonprofits offered up their preferred definition. They asked the court to define the term as “all awards that have been awarded — i.e., that the recipient has been notified of the decision to award the grant, loan, or other financial assistance or the award has otherwise been made public,” according to the motion to clarify.

The Trump administration insists there is no confusion to ferret out.

“The Court’s orders were unambiguous, and Plaintiffs did not object to Defendants’ use of this definition in their written notice regarding the Court’s temporary restraining order,” the motion in opposition reads. “The Court should reject Plaintiffs’ motion, because the Court’s order was not vague or ambiguous.”

The government also says the nonprofits have already relied on the definition in the temporary restraining order — and can’t change it now.

From the DOJ’s motion, at length:

In fact, Plaintiffs represented that the Court’s temporary restraining order provided them the relief they sought, and stated that their preliminary injunction motion was only requesting relief within the same bounds. Yet now, weeks after Defendant first filed a written notice containing this language, Plaintiffs seek to contest this definition of “open awards,” on the rationale that the Court’s own reference to open awards “does not appear to be what the Court was actually saying.”

The nonprofits say the “narrow interpretation” advanced by the government would result in substantial harm to its member groups.

“[T]he harms from Defendants’ irrational Freeze Order would be especially severe for those who had already been awarded and were counting on receiving (or may even have begun to draw on) federal financial assistance,” the motion to clarify reads. “That reasonable reliance on being able to access financial assistance that has already been awarded, and the harms to recipients from Defendants’ sudden halt to such assistance, exist regardless of whether disbursement on an open award has yet begun.”

The nonprofits go on to say they believe the injunction does, in fact, cover such awards but acknowledge the court may not have understood its own order to deal with such funding. So, in the alternative, the plaintiffs “ask that the Court address such awards now.”

The government counters that the enjoined behavior is all about “disbursements” and argues the plaintiffs want to fashion a new order that encompasses the “obligation” of funding.

“Plaintiffs’ attempt to do so only underscores the fact that they seek to use this lawsuit to turn this Court into a superintendent over countless Executive Branch decisions made by non-defendant agencies relating to federal funding,” the motion in opposition reads. “This would include superintending individual agency decisions such as the signing of grant agreements or the determination of whether applicants have satisfied conditions imposed on their awards.”

The nonprofits now have until March 10 to file a final motion on this issue.

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Trump directs DOJ to seek security bonds for injunctions

homesafetytechpros — Fri, 07 Mar 2025 19:18:41 +0000

President Donald Trump delivers remarks in the Oval Office of the White House in Washington, Friday, March 7, 2025. (Pool via AP)

As courtroom losses pile up in myriad cases and controversies, the Trump administration is now looking to amass a collection of tentative money judgments in its favor that would come due later on down the line — if and when the government’s defeats are overturned on appeal.

On Thursday, President Donald Trump signed a memorandum “directing federal agencies to enforce a rule mandating financial guarantees from parties requesting” injunctions or restraining orders in lawsuits, according to a White House fact sheet about the policy.

In the memo, U.S. Department of Justice attorneys are now directed, in all cases going forward, to “demand that parties seeking injunctions against” the administration “must cover the costs and damages incurred” if the government is “ultimately found to have been wrongfully enjoined or restrained” by a lower court.

The memo, on its own terms, aims to curb the power of “activist organizations fueled by hundreds of millions of dollars in donations” and “activist judges” by pushing back against “frivolous litigation.”

The memo and accompanying fact sheet allege the administration has been forced to spend public funds defending against such lawsuits, push back and force people to “needlessly wait” on the enforcement of policies “that they voted for,” and divert “substantial resources” from the DOJ’s efforts to maintain public safety. All of this, the government says, has been “weakening effective governance.”

The government reiterates a by-now commonplace argument that judges at the district court level are exceeding their authority.

“Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported,” the fact sheet reads.

The Trump administration also complains of asymmetrical harm.

“This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail,” the memo reads. “Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions.”

To that end, the administration is basing the new bond directive on Federal Rule of Civil Procedure 65(c), which reads, in full:

Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

The language of the memo and fact sheet suggests the Trump administration views the rule as creating something not entirely unlike a situation where judges lack discretion.

The memo says parties seeking injunctions “must cover the costs and damages” if they lose on appeal. The memo directs DOJ lawyers to tell courts “Rule 65(c) mandates the court to require, in all applicable cases, that a movant for an injunction post security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party.” The fact sheet directs administrative agencies to “to enforce a rule mandating financial guarantees” and tells lawyers to request “federal courts require plaintiffs post security equal to the federal government’s potential costs and damages.”

Judges, however, do not treat the “security” rule as mandatory.

For over 100 years, state courts in the country have operated on the idea that a bond is not a prerequisite to an injunction — with the Alabama Supreme Court endorsing the idea in 1889. Federal courts have enshrined the discretionary concept since 1961 — at the latest.

Recent attempts to invoke the rule have not gone well for the government.

On Feb. 21, a federal judge in Maryland issued a nationwide injunction against some of the Trump administration’s anti-diversity, equity and inclusion directives both “unconstitutionally vague on their face” and in violation of the First Amendment guarantee to freedom of speech.

In issuing that injunction, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, effectively waived the security requirement.

“Here, because the Plaintiffs seek to protect their First and Fifth Amendment rights, and because a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review, the Court will set a nominal bond of zero dollars under Rule 65(c),” the judge ruled.

On Feb. 25, a federal judge in Washington, D.C., issued a nationwide injunction against the government’s policy that would freeze funding on distributions to federal aid programs.

In her order issuing the injunction, however, U.S. District Judge Loren AliKhan, also a Biden appointee, took a decidedly different route — flatly rejecting the idea of a bond requirement.

“The court declines,” the judge wrote. “In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic — and contravene the very basis of this opinion — to hold Plaintiffs hostage for the resulting harm. That is especially so when Defendants — OMB and its director — will personally face no monetary injury from the injunction.”

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Still, the prospect of DOJ attorneys pressing the issue at every step in the future litigation landscape could very well result in some judges agreeing that some kind of bond is required under the rule. There is also the outside possibility of an eventual circuit split — which could prompt the U.S. Supreme Court to eventually decide the matter.

Such threats alone might cause some lawsuits to never be filed.

“The theory is that the increased cost will deter litigants,” computer law expert and criminal defense attorney Tor Ekeland told Law&Crime. “Costs and damages can run into the millions, and a petitioner having to post a bond for any future liability will make every petitioner think twice before running to the courthouse. And limit litigation to those with deep pockets.”

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Judge gives lengthy First Amendment lecture to Trump admin

homesafetytechpros — Wed, 05 Mar 2025 02:06:00 +0000

President Donald Trump speaks in the Roosevelt Room of the White House in Washington, Monday, March 3, 2025 (Pool via AP).

The Trump administration has failed to convince a federal judge that its efforts to penalize “diversity, equity, and inclusion” (DEI) initiatives should be allowed to go forward amid an ongoing lawsuit.

In January, President Donald Trump issued two executive orders attempting to root out DEI from federal government contracts and barring government contractors with in-house DEI programs. Additionally, Trump directed the U.S. attorney general to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to bring about such deterrence.

On Feb. 21, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, issued a preliminary nationwide injunction against the three anti-DEI directives. On Feb. 25, the government filed a motion to stay the court’s order pending appeal. On Feb. 28, the plaintiffs in the case urged the judge to stick to his guns.

On Monday, the court denied the government’s motion to stay the injunction. In a 10-page memorandum opinion and order, the judge opined at length that the government’s anti-DEI policies constitute one of the “most egregious” violations of the First Amendment.

In the order, the judge notes that the government expressly aims to “deter” certain “principles” it disagrees with. Under long-established Supreme Court case law, the legal terminology to describe such action is “content discrimination.” Specifically, the subset of speech policing at issue is “viewpoint discrimination.”

That kind of government action is in the mainline of protections provided by the First Amendment’s free speech guarantee, the court notes. And here, the government’s various attempts to stamp out DEI created a panoply of free speech violations, the judge observed.

The court suggests the issue is not at all close.

“[T]he specific executive order provisions at issue in this case run afoul of these protections, and do so on their face, meaning the provisions themselves, among other things, expressly ‘draw distinctions based on the message a speaker conveys,”” the order reads. “They punish, or threaten to punish, individuals and institutions based on the content of their speech, and in doing so they specifically target viewpoints the government seems to disfavor. The provisions target not only purely private persons who have no nexus to federal funding, but also ‘seek to leverage funding to regulate speech’ of individuals and institutions that happen to contract with (or receive grants from) the federal government, and they terminate benefits or threaten punishment ‘because of [individuals’] speech on matters of public concern,’ which constitute independent First Amendment violations.”

More Law&Crime coverage: ‘The president’s violation of law’: Judge permanently reinstates Biden-appointed member of civil service board who Trump illegally and ineffectually tried to fire

The Fifth Amendment also looms large in the case.

The coalition of plaintiffs, led by the National Association of Diversity Officers in Higher Education, also convinced the judge that some anti-DEI directives were too vague and “undefined” for people to know exactly what the administration was trying to punish.

Those concerns are ancillary to the First Amendment analysis, Abelson said.

The court explains, at length:

The specific provisions at issue also likely violate the due process clause of the Fifth Amendment. After all, the First and Fifth Amendment analyses in this case merge in several ways, because laws that “interfere with the right of free speech or of association” must pass a “stringent vagueness test,” for such a law to give citizens sufficient notice of “what is prohibited, so that [they] may act accordingly,” and for such a law to provide sufficiently “explicit standards” to avoid “arbitrary and discriminatory enforcement.”

The Trump administration, for their part, argued the court’s nationwide injunction “intrudes on the Executive’s authority to enforce the law” and harms “intra-executive policy implementation by enjoining the President’s policy directives to federal agencies.”

The court suggests that the argument was a retread.

And, in any event, it was still unconvincing.

“As the Court explained in its memorandum opinion granting the preliminary injunction, the executive branch is obviously entitled to have policy goals and to pursue them,” the opinion goes on. “But in pursuing those goals it must comply with the Constitution, including, as relevant here, the Free Speech Clause of the First Amendment, and the Due Process Clause of the Fifth Amendment.”

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In its initial ruling, the court said the administration’s anti-DEI crusades “abridge the freedom of speech” and are “unconstitutionally vague on their face.” In short, nothing has changed since — or convinced the court otherwise.

“As the Court has explained, although the case is presently in its preliminary stages, several of the challenged provisions clearly, on their face, violate First Amendment free speech protections,” Abelson writes. “And when balancing the harms, the chilling of the exercise of fundamental First Amendment rights weighs strongly in favor of the preliminary injunction, and against a stay pending appeal. Likewise, Plaintiffs have shown a likelihood of success on the merits based on the unconstitutional vagueness of the challenged provisions. Defendants have offered no new evidence or arguments that justify a reassessment of the balance of the harms or the public interest considerations in this case.”

In an alternative but also failed effort to get the court to reconsider the extent of the injunction, U.S. Department of Justice lawyers cited both Supreme Court Justices Clarence Thomas and Neil Gorsuch. Abelson said those citations were not convincing. The Gorsuch reference had to do with a different issue; the Thomas reference had to do with a general disdain for so-called “universal” injunctions.

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Judge says Trump’s anti-DEI orders violate First Amendment

homesafetytechpros — Sat, 22 Feb 2025 17:00:32 +0000

US President Donald Trump arrives before signing the Laken Riley Act into law in the East Room at the White House in Washington on January 29, 2025. The law, named after a Georgia student murdered by an undocumented immigrant is the first bill of the second Trump administration (Yuri Gripas/Abaca/Sipa USA/Sipa via AP Images).

A federal judge on Friday blocked the Trump administration’s plans to make “diversity, equity, and inclusion” (DEI) initiatives illegal.

In late January, the 45th and 47th president signed executive orders which purported to root out DEI from federal government contracts and by barring government contractors with DEI programs of their own. Additionally, Trump directed the U.S. Attorney General to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to effectuate such deterrence.

On Feb. 3, the National Association of Diversity Officers in Higher Education (NADOHE) and several other plaintiffs filed a 42-page lawsuit in Maryland federal court. The group describes itself as an organization that aims to help members “advance equity, inclusion, and the value of belonging within their campus communities.”

In their complaint, the plaintiffs alleged the Trump administration’s anti-DEI directives were unconstitutional for myriad reasons. On Friday, a federal court agreed on at least two counts.

In a 63-page memorandum opinion, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, the court found the anti-DEI directives both “unconstitutionally vague on their face” and in violation of the First Amendment guarantee to freedom of speech.

Under the Fifth Amendment‘s Due Process Clause, a basic principle of constitutional caselaw is that “an enactment is void for vagueness if its prohibitions are not clearly defined,” the judge notes — citing a U.S. Supreme Court case from 1972.

Here, the court determined that the “Termination Provision” of the anti-DEI directive — the provision that intends to broadly impact all existing contracts and any current or would-be contractors — has two major definitional flaws.

“First, the vagueness of the term ‘equity-related’ grants or contracts’ invites arbitrary and discriminatory enforcement,” Abelson writes. “Second, the vagueness of the term offers insufficient notice to current grantees about whether and how they can adapt their conduct to avoid termination of their grants or contracts.”

The court also found Trump’s directive for law enforcement to enforce the anti-DEI crusade through civil compliance investigations vague under the 5th Amendment’s guarantee of due process under the law.

From the opinion, at length:

Defendants have rescinded swaths of existing executive branch guidance on what the executive branch considers the federal civil rights laws to require, prohibit, or allow. Yet neither [executive] Order gives guidance on what the new administration considers to constitute “illegal DEI discrimination and preferences,” or “[p]romoting ‘diversity,’” or “illegal DEI and DEIA policies,” or what types of “DEI programs or principles” the new administration considers “illegal” and is seeking to “deter.” The due process clause of the Fifth Amendment requires that “prohibitions” on conduct be “clearly defined.”

“Vague laws invite arbitrary power,” the opinion goes on — directly quoting Supreme Court Justice Neil Gorsuch.

“Plaintiffs here have shown substantial evidence of the risks of such arbitrariness here,” Abelson continues. “By threatening the ‘private sector’ with enforcement actions, based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”

The court also found several First Amendment violations.

“There is a label for government action that seeks to ‘deter . . . principles,’ that the government disagrees with: ‘restrict[ion]’ of ‘expression because of its message, its ideas, its subject matter, or its content.’ And the most ‘blatant’ and ‘egregious form of content discrimination’ is viewpoint discrimination,” the opinion goes on. “The Certification and Enforcement Threat Provisions squarely, unconstitutionally, ‘abridge the freedom of speech””

Specifically, the court found that the effort to force potential contractors to certify compliance with anti-DEI principles and the threat against private businesses to stop their existing DEI policies in violation of the First Amendment.

Abelson explains, again at length:

The Enforcement Threat Provision applies broadly to the private sector; therefore, unlike with the other provisions, the analysis is based on pure private speech regulated by the First Amendment as opposed to the speech of federal contractors or grantees. Plaintiffs have shown a likelihood of success on the merits of their claim that the Enforcement Threat Provision, which threatens to bring enforcement against perceived violators of undefined standards, is, on its face, an unlawful viewpoint-based restriction on protected speech. The Enforcement Threat Provision expressly focuses on “deter[ring] DEI programs or principles that constitute illegal discrimination or preferences” and “encourag[ing] the private sector to end illegal discrimination and preferences, including DEI,” without, for example, a similar restriction on anti-DEI principles that may also be in violation of existing federal anti-discrimination laws That is textbook viewpoint-based discrimination.

Ultimately, the judge issued a preliminary nationwide injunction against each of the three anti-DEI directives. The court declined, however, to enjoin the Attorney General from preparing a report — as one of Trump’s orders directs her to do.

The injunction will remain in effect pending the resolution of the case itself at the district court level, or, unless the administration is granted and wins a reprieve from a federal court of appeals.

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