Last Friday, March 14, in response to an emergency motion for a stay filed by the government, the Fourth Circuit lifted the temporary injunction that had been ordered by a District of Maryland judge precluding enforcement of the recent Executive Orders (EOs) targeting diversity, equity and inclusion programs.
The decision to stay the lower court’s injunction was unanimous, however, each member of the three-judge panel issued a separate concurring opinion. One throughline of those opinions was to accept the government characterization of the EOs as distinctly narrow in scope. As one of the judges on the panel wrote: “[t]he 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.”
The judges also appeared to be in agreement that implementation of the EOs may well still raise constitutional concerns and that any such parties suffering injury would be entitled to relief in court. The upshot of this decision is that the Trump administration may move forward in the near term with implementing the EOs, however, any such implementation would still need to occur within the bounds of the law.
The timeline for a more thorough consideration of the EOs by the Fourth Circuit will be determined in the near future. Today, the Fourth Circuit asked the parties to file positions on whether they believe the granting of this emergency motion necessitates a change to the original briefing schedule for this appeal first set by the court (with opening briefs due April 8 and responses due May 8).
Employers should continue to monitor the situation and PERKS will continue to issue updates as they come in.