On Friday, the United States Court of Appeals for the Fourth Circuit reversed the much-covered nationwide injunction imposed by U.S. District Judge Adam Abelson in Baltimore regarding ending federal support for diversity, equity, and inclusion (DEI) programs. The three-judge panel ruled that Judge Abelson had gone “too far” in seeking to enjoin the federal government across the country.
The Fourth Circuit recognized that the executive orders “could raise concerns” about First Amendment rights that might have to be addressed down the road. However, it found Abelson’s “sweeping block went too far.” It also pointed out that the orders were not nearly as unlimited and sweeping as suggested by the district court or the media.
Trump’s orders directed federal agencies to terminate all “equity-related” grants or contracts, and further required federal contractors to certify that they implement DEI programs which the Administration believes are discriminatory and violated federal civil rights laws. Those orders are also being challenged in other cases and include “Ending Radical and Wasteful DEI Programs and Preferencing;” “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government;” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
The district court found the orders in the Maryland case to be unconstitutionally “vague” and chilled free speech. That was a victory for the litigants, including the City of Baltimore, the National Association of Diversity Officers in Higher Education, the American Association of University Professors and the Restaurant Opportunities Centers United.
In their order, the panel explained that the orders were misrepresented in their scope. Judge Pamela Harris, a Biden appointee, wrote that
“The challenged Executive Orders, on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”
Judge Harris also noted that the orders “do not authorize the termination of grants based on a grantee’s speech or activities outside the scope of the funded activities.” Likewise, she noted that the certifications only require pledges not to violate existing federal anti-discrimination laws.
Nevertheless, Judge Harris noted that the officials could enforce these orders in unconstitutional ways: “Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns,” the judge added.
Chief Judge Albert Diaz, an Obama appointee, agreed with Harris but wanted to emphasize that the enforcement of these orders should not stray from their narrow framing: “I too reserve judgment on how the administration enforces these executive orders.”
Judge Diaz, however, went beyond that scope and engaged in a degree of editorialization on the value of DEI programs.
“Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. When this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?… A country does itself no favors by scrubbing the shameful moments of its past.”
The only Trump appointee pushed back on the rhetoric of her colleagues in their defense of DEI policies. Judge Allison Rushing correctly, in my view, objected to the political dimension of such dicta.
“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. A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
I also found the tenor of the opinion of Chief Judge Diaz to be concerning. The review of an injunction is not an invitation or license to express one’s personal view of the moral or social value of government programs. I share the concern of all three judges with how these orders will be enforced to protect free speech rights. However, we have a court system to address any such abuses if they were to arise. If there are “as applied” violations, they can be raised in the context of a specific case with the courts. In the meantime, the Supreme Court has signaled that it is losing patience with nationwide injunctions from district court judges.
Judge Diaz might consider pondering more closely the majority opinion in Oklahoma v. Castro-Huerta, where Justice Kavanaugh correctly noted that under the Separation of Powers doctrine, the constitutionally-proscribed duty of the judiciary is to declare what the law is, and not what the judiciary thinks it should be. This is definitely not a situation where one must parse what the meaning of “is”…, is.
Judge Diaz is playing checkers. In any future case involving DEI he will have to recuse. If he doesn’t then the side opposed to DEI will file a recusal motion that will have to be litigated. More paid work for lawyers, and more work for the judge with no extra pay. Also a possible due process appellate issue for Scotus if they were to grant review. Even if they don’t, the legitimacy of any pro-DEI ruling written or joined by Diaz will now be suspect.
I have no doubt that Diaz knows this, and so what we see is his rather juvenile inability to control his own emotions. Like a drunk who knows alcohol is bad for him but can’t control his craving.
“. . . the Supreme Court has signaled that it is losing patience with *nationwide injunctions* from district court judges.” (JT, emphasis added)
I still do not understand this issue.
Each district court has very specifically defined *geographical* boundaries. How is it, then, that a district court’s orders can apply to those *outside* of those boundaries? What is the point of jurisdiction (territorial, not subject matter) if such a court can issue a *nationwide* order?
A boundaryless order seems to usurp the jurisdictional authority of the supreme court.
I believe you misunderstand the difference between the “geographical boundaries” of a district in which a federal district judge sits, and his jurisdiction, which is not limited by geography. Once the judge has proper “jurisdiction” of a dispute, which can, but need not, be connected to the geographical boundaries of his district, he can resolve that dispute even if the result affects activity anywhere (or everywhere) in the US. Just to give an example, if a patent is allegedly infringed in the Southern District of Florida, and the patent holder (who could be from California) files an infringement action there against an alleged infringer (who could be from Wisconsin) the judge could, after resolving the issues in favor of the plaintiff, enjoin further infringement by the defendant anywhere in the US. I may have forgotten a lot since I retired but I think I am still correct in that.
But it’s still an open question that could use treatment from Scotus.
https://en.m.wikipedia.org/wiki/Nationwide_injunction
It’s intersting that Turley gets into the nitty gritty details about a court decision or Presidential policy when it serves as a means to criticize the left. But stays silent when there is ample reason to criticize the right. Turley loves to advocate for free speech and the biggest free speech cases are not these. It’s the Khalil case and now the Trump administrations attack on law firms for exercising their free speech and doing their job representing their clients. Both are major free speech issues that show Trump attacking free speech and Turley remains dead quiet.
I’m sure he will eventually address them when a more favorable excuse to exercise criticizm against the left appears.
“It’s intersting [sic] that . . .”
Please do keep coddling your supporters of terrorism.
It’s a good reminder of who the Left considers worthy of attention and protection.
And please do, at the same time, keep excoriating Musk.
Those two in combination remind us that the Left has reached the lowest rung of hell.
You are truly the master of whataboutism. Stay on topic!
George, the Khalil case is not a free speech issue as you and other uninformed assert. It is really about violating the terms of his green card by endorsing Hamas terrorism and policies contrary to the US. Also engaging in conduct contrary to green card rules.
There is zero evidence that he endorsed or spoke in support of Hamas. None. Supporitng the Palestinians is not supporting Hamas.
Organizing a protest is not conduct forbiden to green card holders. Neither is criticizing Israel or the U.S. Governement.
The government (DHS and ICE) claimed during his arrest that his student visa was revoked. He wasn’t on a student visa. Then they changed it to revoking his green card, but that requires the government prove with concrete evidence that he violated the law or committed serious crime. None of that was presented and the only reason they cite is a vague law allowing the secretary of state to claim he has a reasonable belief that Khalil is affecting foreign policy. The SoS has to show to the court evidence of that. Obviously they don’t have it because Trump just wanted him out of the country because he didn’t like what Khalil was saying and that he as ‘illegally protesting’.
Trump is attacking free speech and Turley is sitting on the sidelines waiting for an opportunity to make an excuse for Trump.
George
the Khalil case is not a free speech case. Khalil had key roles in the violence at columbia.
The Perkins Coi case is not even close to free speech. – Perkins Coi was not funding political adds.
They were laundering the money to pay for a fraudulent political dossier and to bring it to the FBI
They like those claiming the Hunter Biden Laptop was russian disinformation had actively involved themselves in a fraud involving national security. There is no right to a security clearance.
Arguably a president CAN use security clearances to punish enemies and reward friends.
But ABSOLUTELY he can deny security clearances to those who make false claims to the FBI expecially that have national security implications. That is CONDUCT – not speech
“ George
the Khalil case is not a free speech case. Khalil had key roles in the violence at columbia.”
What key roles? The problem you keep having is you can’t pinpoint exactly what he did that is a crime or evidence of support of terrorism.
Even you said we should wait for evidence but you keep alluding to something that you have zero evidence of.
Turley has written about Biden’s “influence peddling” and “selling the office” without any evidence other that pure speculation and insinuation.
Trump has made it publicly clear he is against “illegal protests” and anti-israel views. He’s clearly demanding Khalil be deported because he doesn’t llke his political views. That’s certainly a free speech issue and you know it. Turley knows it too. He has had no problem criticizing government before any evidence has been presented and made analyses based on pure legal speculation. In this case Khalil is geing punished for exercising his free speech rights and political views. All you have is allegations and ‘likely’ assumptions about what they have. If they had evidence and clear proof they would have presented by now. There was no warrant and no evidence of a crime. Turley knows Trump messed up in a major way and he doesn’t want to lend credibility to Khalil’s defense because MAGA will go after him like they did with ACB.
The Perkins and Coie case is indeed about free speech. Trump is seeking to punish a law firm for doing it’s job of representing clients. Trump wants to punish them for doing so and that touches on their free speech rights. He’s dealing with a very powerrful lawfirm and he may end up regretting it. Trump keeps losing court motions and arguments far more than Biden ever did and now he’s begging the supreme court to intevene because he can’t win on the merits.
He’s denying them security clearances because he is seeking to punish them for doing their job. to deny security clearances prevents them from representing their clients and that is not only a free speech issue but a equal treatment under the law issue. Trump denying security clearances to stymie a fair trial or due process which is unconsitutional.
I expect Turley to address Khalil when the government has presented its evidence that Khalil was engaged in activity beyond speech or that he lied to obtain a VISA.
If the govenrment fails to make the case that Khalil engaged in more than free speech – he purportedly acted as the representative for those who occupied parts of the campus and engaged in violence and purpotedly told Columbia that to end the violence and occupation they must fully divest from Israel.
That if true – and it is unlikely it is not is more than sufficient.
John, the problem is if they didn’t have evidence at the time of arrest then anything after is inadmissable. The whole arguement relies on the legality of the arrest in the first pace. You can’t arrest someone without evidence of a crime or without a warrant.
In order for the government to justify a revocation of a green card they must prove that Khalil directly engaged in violence and directly told protesters to get violent. Simply organizing a protest and criticizng israel is not enough and citing a vage insinuation the he might have lended support without any evidence to back it up is in itself unconstitutional.
Khalil was arrested for expressing a point of view Trump didn’t like an Trump ordered his arrest to silence him. He instead created a martyr and a source of focus on what Trump is doing, attacking free speech. That should be enough for Turley to speak up at a minimum. Not wait until the government has evidence. They should already have evidence. Not after.
“John, the problem is if they didn’t have evidence at the time of arrest then anything after is inadmissable.”
The “evidence” or information they have against Khalil was not gained because of, or after, an allegedly illegal arrest.
did you mean inadmissible?
ICE and DHS justified Khalil’s arrest because they said his student visa was revoked. When shown proof that he was not a student visa holder but a green card holder they changed it their justification a revoking his green card. But that requires the Secretary of state to have evidence and an already revoked green card which requires an immigration judge to look at the evidence and issue a warrant for his arrest for deportation.
The fact that they kept changing the reason for the arrest spells trouble for the Trump administration and Trump’s own comments about kicking out students and legal immigrants for participating in illegal protests show he is seeking to punish them for their free speech. Not because they committed crimes. Voicing support for Hamas is not a crime any more than voicing support for the KKK or neo nazis. It’s protected politicla speech.
You can tell that they are punishing him for expressing his views when the first thing they say is “ its’ not about free speech”. You wouldn’t need to preface an accusation with that if it really wasn’t. It clearly is and Trump’s DOJ forgot to gather proof if their allegations before arresting him. His DOJ was under pressure to do something about Khalil and the other students because he doesn’t like their political views.
The only question remaining , George, is when will the islamic temple come down in the holy city OBVIOUSLY built over the synagogue of David and Solomon. In there is the well of souls and it will come down.
Chief Judge Albert Diaz’s rhetorical missive is genuinely sincere. Judge Allison Rushing points out the argument push against the “Structural Framework’ of the Jurisprudence.
National Passion (Diaz) vs. Constitutional Jurisprudence (Rushing).
In respect to the Constitutional Social Contract the point of view of Chief Judge Albert Diaz is clear, We have a ‘Social Contract’ that is inclusive of which We may not contradict said Social Contract. further the The Declaration of Independence states that “all men are created equal” as a underlying premise to the Constitutional Social Contract.
Judge Allison Rushing point is validated by the 14th Amendment. The U.S. Constitution, specifically the 14th Amendment, guarantees equal protection under the law, meaning no state can deny any person within its jurisdiction the equal protection of the laws. A concurrent ‘framework’ of which directs the Bench within said boundaries of Jurisprudence.
Judicial Scrutiny to wit: The Supreme Court has used the Equal Protection Clause to strike down discriminatory laws and practices, playing a crucial role in advancing equality.
Practices will be the Key argument. Wherein are the Executive Orders allowed to supersede the Practices of the Governed, to the denial of their Freedoms.
Thoughtful Post Jonathan – Kudos
The Bee is reporting on a federal Judge in California that just appointed himself President of the United States.
Yeah, the Supreme Court is losing patience, a al Hans Blinx from Team America World Police: “We are losing patience and we will send a letter saying how much patience we are losing.”
The tactic of implementing juvenile judicial justice is no different than if a 13 year old is designated as an honorary judge and declares that our president’s Executive Order is unlawful. . . . What options does the Executive Branch have ?
#74. DEI is just another name for affirmative action. A rose by any other name… AA was struck down to the hysteria of many so the name was changed.
I’m changing my name so no one will recognize me.
Beautiful weather!
Where does any court other than the supreme Court get the authority to make nation wide decisions?
When it fosters true equity, it opens opportunities and ensures a level playing field for all.
I don’t believe the execrable Judge Diaz had such a poor education that he doesn’t realize that ‘equity’ is the exact opposite and the enemy of ‘equality’. It is also the killer of meritocracy as the standard for a society. A level playing field is one where all get the same, equitable results whether when applying to attend a university or economic outcome in your life.
Diaz knows this; he is just setting the stage by putting the language of the Democrat Revolution in place: the revolution will be complete when the language is perfect, to the point no alternative points of view or words are acceptable in the republic.
A country does itself no favors by scrubbing the shameful moments of its past.
A rhetorical question: where was Judge Diaz when Obama and then Obama’s Third Term who appointed him to his position were doing everything they could do publicly do just that: the virtue signalling attempts to scrub America of it’s past? The renaming of Fort Bragg, as just one small example?
With exceptions made for earlier virulently racist and anti-Semitic Democrat presidents like Woodrow Wilson and FDR, of course. Their statues and names on federal facilities are still appropriately worshiped by Judge Diaz.
Yes. DEI was never intended to be just. It was tyrannical and vindictive from the get to. It was about the usual machete-brandishing extremists doing a beat down on whitey.
😂 yeah, it worked out well.
If Americans enjoy the freedom of speech, they enjoy the freedom of thought and opinion.
If Americans enjoy the right to private property, they may hire, or not, whomever they choose, and they may sell and rent, or not, to whomever they choose.
If Americans enjoy the freedom of assembly, they enjoy the freedom of disassembly, or segregation.
If Americans are free, they may be racist all day long.
Americans may not inflict bodily injury or property damage.
I am loathe to endure 4 years minimum of ridiculous injunctions and judicial interference by prog judges who realize that their unprofessional actions are the only remaining tools for the progressive decades long campaign to undermine our culture and our constitution.
Just the thought of enduring what are certain to be endless motions by DEI hire judges to disrupt and delay the will of “We The People” is enough to dampen the entire Trump administration unless his DOJ can finally get their act together and start indicting, prosecuting and jailing those who flagrantly disobey our federal laws. I am growing weary of wondering whether Bondi is just the third poor choice by Trump for an AG.
THANK GOD ONE JUDGE ON THAT PANEL HAD BRAINS!
The National Association of Diversity Officers in Higher Education
My God! How can a country have a successful post-secondary education system without a supporting network of collaborating Diversity Officers in place to properly steer those colleges and Universities!
How the hell have we gotten this far since our founding during the years that this national association of Diversity Officers didn’t exist!
The Chief Judge is a virtue-signaling pain Diaz.
Agreed. In practice, DEI has been an unqualified abomination.
A small victory; whether there will ultimately be an end to minor courts claiming the authority to infringe on the powers of the Executive Branch we shall see. Congress created those minor courts; they could define where they go out of bounds. With the numbers and divisions of this Congress, that isn’t going to happen.
I do not hold out much hope for this SCOTUS issuing strict guidelines to reign this in with Roberts as Chief Justice and Barratt positioning herself to be the next Sandra Day O’Connor, as much a politician as a judge, possibly with dreams of being the first female Chief Justice. Barrett is quickly becoming Roberts’ Mini-Me.
Wie geht’s???
Herr Turley said, “The review of an injunction is not an invitation or license to express one’s personal view of the moral or social value of government programs.”
Well, that’s the way it used to be, but Federal Judges are like shoplifters in San Francisco – as long as nothing happens to them, they are going to keep on walking out with a shopping cart full of free hair products and beer.
DEI=DIE
The Obama appointee could just help itself (too soon?) – it’s in the DNA. Pure dicta that has no legal relevance. Judge Rushing, OTOH, nailed it
Yes she did. Thank goodness
So are they going to fire the judge?
I hope so