The short answer to the question posed in the title of this article is that it depends on how forcefully but deftly the administration can implement its Diversity, Equity, and Inclusion order, and how the project will be received by Congress, courts, states, institutions, businesses, and the public.
Early evidence suggests that most big businesses are not going to object, as Walmart, McDonald’s, Ford, Toyota, Nissan, Harley-Davidson, Amazon, Boeing, Brown-Forman, Meta, Lowe’s, and others had already moved to wind down or terminate their DEI programs after the Supreme Court ended affirmative action in 2023 and Trump won in 2024 after committing to end DEI. Meritocracy looks like a more responsible policy for many profit-making enterprises. (RELATED: The High-Water Mark of Woke Corporate Activism)
That incentive may not apply in other areas such as academia and the nonprofit world. However, the public has recently watched public officials committed to diversity falter in Los Angeles, with the L.A. mayor having been absent in Ghana during the height of LA’s fire season. However justified, the public’s heuristic skepticism of L.A.’s DEI makes DEI’s national death more likely.
Trump’s DEI order offers a good case study of executive orders in general. President Trump signed almost 200 orders covering many subjects on the first day of his return to office. The legal implications of executive orders will be of keen interest during this administration. (RELATED: Trump’s Executive Order Ends ‘Trans’ Tyranny and Protects Females)
The prime DEI order Trump signed on January 21 is “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The gist is to halt DEI policies and practices as broadly as possible. The order says that DEI already “can violate the civil rights laws.” It seeks to “end illegal preferences and discrimination … Government-wide.” The order also seeks to “encourage” the private sector to end illegal discrimination by targeting cases of DEI discrimination in large corporations and entities, as well as by prohibiting the use of DEI among government contractors and in all higher educational institutions receiving federal money (that is, almost all of them). The order anticipates potential evasion of its dictates in the bureaucracy, and attempts to root out any evasions.
The next day, Trump ordered all federal DEI employees to be furloughed with pay “immediately,” which he is presumed to have full authority to do. But Sen. Dick Durban (D-IL) immediately pushed back, saying on MSNBC, “We should continue to encourage individuals and agencies and corporations to do the right thing anyway,” apparently inviting active resistance by government bureaucrats to Trump’s DEI order.
Later that week, Georgetown law professor Dorothy Brown, a critical race theory advocate, took another tack by calling the order “big government run amuck. Why is the federal government telling private entities who they can hire?” Legal battles are apparently brewing, which is even subtly foreshadowed in the order, which carves out free speech for classroom debate criticizing the order. Meanwhile, speaking to the Davos forum on January 24, Trump savaged DEI as “absolute nonsense.”
The legality of the increasing use of executive orders by U.S. presidents has been questioned long before Trump. The overarching constitutional problem is that the president is not a monarch. However, given the originally unimagined scope of the huge federal administrative state, the massive size of federal spending, and a paralyzed Congress, the expanded use of executive orders is understandable. Yet they remain vulnerable to legal attack and will likely be one of the major battlefronts by Democrats in Lawfare 2.0 against Trump and his administration.
Depending on how they are crafted and implemented, executive orders may run afoul of legislative power, judicial power, states’ rights, and citizen autonomy. For example, Congress has the power under the 14th Amendment’s Section 5 to outlaw DEI but has not done so. Does that mean that the president is crossing Congress, or will Congress prove quiescent or maybe signal approval?
As to the administration’s statement that the intent is to “combat” private sector DEI as inherently “illegal,” that could be seen as a usurpation of the court’s role in interpreting what is or is not illegal under the civil rights laws and cases already on the books. As to the states, do executive orders have the force of law to restrict states if the Department of Justice pushes discrimination cases against state DEI programs? Practically speaking, a key question will be whether businesses, institutions, and the public will accept the demise of DEI as having been a possibly noble but failed experiment.
Much will depend on how the administration uses its discretion in singling out particularly odious forms of DEI and selectively threatens to use its educational funding strings to get DEI at least formally out of higher education. Nonetheless, one can expect subtle underground resistance within higher education as suggested by Professor Brown’s immediate broadside swipe at Trump’s DEI order.
Earlier, in 2023, Berkeley Law Dean Erwin Chemerinsky went viral over his remarks admitting that “unstated affirmative action” occurs regardless of court rulings, at least in faculty hiring. “You can think it,” he said, “you can vote it, but … don’t ever articulate that’s what you’re doing.”
Although subtle discrimination is hard to snuff out altogether, Trump’s forceful DEI order is a major step toward meritocracy and fair play even if this particular order is potentially over-broad. Still, cribbing Browning, perhaps a president’s reach should exceed his grasp. Or what’s a heaven for? Martin Luther King, Jr. himself stretched beyond his own life to realize for others his dream of personal judgment not on skin color, but character.
READ MORE:
Universities Must End DEI and Implement DEI
DEI and Marxism Destroy Merit and Excellence
David Oedel is a professor of law at Mercer University Law School and is chair of the Constitutional Law Section of the State Bar of Georgia.
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