UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL URBAN LEAGUE et al.,

Plaintiffs,

v. Civil Action No. 25-471 (TJK)

DONALD J. TRUMP et al.,

Defendants.

MEMORANDUM OPINION

After taking office this January, President Trump promptly issued three executive orders

addressing diversity, equity, and inclusion. Some provisions are internal to the government, di-

recting Executive Branch officials to create certain lists or produce certain reports to advise the

President. Others reach into the private sector—for example, by requiring grantees and contractors

to certify that they do not operate DEI programs that violate federal antidiscrimination law. And

still others straddle the line by directing agencies to terminate some federal grants and contracts,

an intra-governmental directive that affects other entities.

Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also

contract with and receive funding from several federal agencies. Concerned that President

Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs

sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a pre-

liminary injunction over a week later, arguing that eight provisions of the orders are unconstitu-

tional under the First or Fifth Amendment—or both. More specifically, Plaintiffs contend that the

challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful

viewpoint discrimination. But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the

extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions,

Plaintiffs fail to establish a prerequisite to success on the merits: standing. 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. And for the remaining provisions, Plaintiffs’

constitutional claims falter for various reasons. Two throughlines explain most of them. The

government need not subsidize the exercise of constitutional rights to avoid infringing them, and

the Constitution does not provide a right to violate federal antidiscrimination law. And those pres-

sure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied

challenges.

The motion before the Court is not about whether DEI policies, however defined in a given

context, are good public policy. Nor is it about whether specific DEI initiatives comply with an-

tidiscrimination law. Instead, it is about whether Plaintiffs have shown that they are entitled to a

preliminary injunction prohibiting enforcement of the executive orders at issue. Because they are

not likely to prevail on the merits, the Court will deny the motion.

I. Background

A. The Executive Orders

Throughout the campaign and as President-elect, Donald Trump took aim at DEI policies

within the federal government and private sector. See ECF No. 29-1 at 12. Within two days of

his inauguration, President Trump sought to advance this policy priority by issuing three executive

orders about “gender ideology” and “diversity, equity, and inclusion.” See Ending Radical and

Wasteful Government DEI Programs and Preferencing,

(codified Jan. 29, 2025)

(“Government DEI Order”); Defending Women from Gender Ideology Extremism and Restoring

Biological Truth to the Federal Government,

(codified Jan. 30, 2025) (“Gender

2 Ideology Order”); Ending Illegal Discrimination and Restoring Merit-Based Opportunity,

(codified Jan. 31, 2025) (“Illegal Discrimination Order”).

The first order purportedly aims to eliminate “illegal and immoral discrimination” that has

“infiltrat[ed]” “virtually all aspects of the Federal Government.” Government DEI Order § 1. To

implement that directive, the Director of the Office of Management and Budget must “coordinate

the termination of all discriminatory programs, including illegal DEI . . . mandates, policies, pro-

grams, preferences, and activities in the Federal Government.” Id. § 2(a). Part of that implemen-

tation plan, moreover, calls on agencies to “terminate, to the maximum extent allowed by law,”

the following: (1) “all DEI, DEIA and ‘environmental justice’ offices and positions”; (2) “all ‘eq-

uity action plans,’ ‘equity’ actions, initiatives, or programs,” and “‘equity-related’ grants or con-

tracts”; and (3) “all DEI or DEIA performance requirements for employees, contractors, or grant-

ees.” Id. § 2(b)(i) (“Equity Termination Provision”). This order also directs agencies to give the

OMB Director a list of all “Federal grantees who received Federal funding to provide or advance

DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.”

Id. § 2(b)(ii)(C) (“List Provision”). And the order states that its implementation must be “con-

sistent with applicable law.” Id. § 4(b).

Issued the same day, the second order addresses “gender ideology,” defined as the dis-

placement of “the biological category of sex with an ever-shifting concept of self-assessed gender

identity.” Gender Ideology Order § 2(f). Those “who deny the biological reality of sex,” the order

begins, have allowed “men to self-identify as women and gain access to intimate single-sex spaces

and activities designed for women.” Id. § 1. And because the Trump administration believes that

“eradicat[ing] the biological reality of sex . . . depriv[es]” women “of their dignity, safety, and

well-being,” the order gives agencies several marching orders. Id. Two are relevant here. First,

3 agencies “shall take all necessary steps, as permitted by law, to end the Federal funding of gender

ideology.” Id. § 3(e) (“Gender Funding Termination Provision”). And second, they must “assess

grant conditions and grantee preferences and ensure grant funds” from the federal government “do

not promote gender ideology.” Id. § 3(g) (“Promoting Gender Ideology Provision”). As with the

first order, implementation must be “consistent with applicable law.” Id. § 8(b).

The third order returns to DEI more generally. It explains that both the federal government

and private sector have adopted “race- and sex-based preferences under the guise of” DEI in ways

“that can violate the civil-rights laws of this Nation.” Illegal Discrimination Order § 1. Such

“[i]llegal DEI” policies, the order says, violate those “longstanding” civil-rights laws and “under-

mine our national unity.” Id. So the order emphasizes that the “Federal Government” will enforce

these laws by “ending illegal preferences and discrimination.” Id. To that end, the order aims to

“terminat[e] illegal discrimination in the Federal Government” through several means. Each

agency must include two terms in “every contract or grant award”: one requiring the counterparty

“to certify that it does not operate any programs promoting DEI that violate any applicable Federal

anti-discrimination laws,” and another requiring it to agree that compliance with those laws “is

material to the government’s payment decisions for purposes of” the False Claims Act,

(b)(4). See

§ 3(b)(iv)(A), (B) (“Certification Provision”). Further, the OMB Director

must “[e]xcise references to DEI and DEIA principles” from “Federal acquisition, contracting,

grants, and financial assistance procedures.” Id. § 3(c)(ii) (“Contract Terms Provision”). And that

director must eliminate “all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deploy-

ment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements,

programs, or activities, as appropriate.” Id. § 3(c)(iii) (“Government Mandates Provision”).

Finally, the Illegal Discrimination Order seeks to “encourag[e] the private sector to end

4 illegal DEI discrimination” too. Illegal Discrimination Order § 4. The central plank of this section

directs the Attorney General to create a “report” that will “further inform and advise” President

Trump so that he “may formulate appropriate and effective civil-rights policy.” Id. § 4(b) (“Report

Provision”). Generally, this report must include “recommendations for enforcing Federal civil-

rights laws.” Id. And specifically, it must “contain a proposed strategic enforcement plan identi-

fying,” among other things, the “most egregious and discriminatory DEI practitioners in each sec-

tor of concern”; “specific steps or measures to deter DEI programs or principles . . . that constitute

illegal discrimination or preferences”; a list from each agency flagging “up to nine potential civil

compliance investigations” of large private-sector entities; “[o]ther strategies to encourage the pri-

vate sector to end illegal DEI discrimination . . . and comply with all Federal civil-rights laws”;

and “potentially appropriate” litigation. Id. Again, all parts of the order must “be implemented

consistent with applicable law.” Id. § 8(b).

Thus, across the three executive orders, eight provisions are relevant to Plaintiffs’ request

for preliminary relief. The Court refers to them collectively as the “Challenged Provisions.” To

recap, they are: Government DEI Order § 2(b)(i) (“Equity Termination Provision”) and

§ 2(b)(ii)(c) (“List Provision”); Gender Ideology Order § 3(e) (“Gender Funding Termination Pro-

vision”) and § 3(g) (“Promoting Gender Ideology Provision”); and Illegal Discrimination Order

§ 3(b)(iv)(A), (B) (“Certification Provision”), § 3(c)(ii) (“Contract Terms Provision”), § 3(c)(iii)

(“Government Mandates Provision”), and § 4(b) (“Report Provision”).

Less than a week after President Trump issued the orders, OMB told agencies to pause

“agency grant, loan, and other financial assistance programs.” Off. of Mgmt. & Budget, Exec.

Off. of the President, M-25-13, Temporary Pause of Agency Grant, Loan, and Other Financial

Assistance Programs (Jan. 27, 2025), https://dcg.usc.edu/wp-content/uploads/2025/01/OMB-

5 Memo-Pause.pdf. Each agency had to analyze all its financial-assistance programs to identify

“programs, projects, and activities that” any of President Trump’s executive orders might “impli-

cate[].” Id. at 2. Meanwhile, OMB instructed the agencies to “temporarily pause”—“to the extent

permissible under applicable law”—“all activities related to” such financial assistance for, among

other things, “DEI” and “woke gender ideology.” Id.

The Attorney General also chimed in. In early February, she issued a memo about “ending

illegal DEI and DEIA discrimination and preferences.” Off. of the Att’y Gen., Dep’t of Just.,

Ending Illegal DEI and DEIA Discrimination and Preferences (Feb. 5, 2025), https://www.jus-

tice.gov/ag/media/1388501/dl?inline. The Department of Justice, the memo explained, “is com-

mitted to enforcing all federal civil rights laws.” Id. at 1. And the Illegal Discrimination Order

made “clear that policies relating to” DEI “violate the text and spirit of our longstanding Federal

civil-rights laws.” Id. (quoting Illegal Discrimination Order § 1). So DOJ will “investigate, elim-

inate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities

in the private sector and in educational institutions that receive federal funds.” Id. And consistent

with the executive order, DOJ will create a report “containing recommendations for enforcing

federal civil-rights laws” and “encourag[ing] the private sector to end illegal discrimination.” Id.

B. Related Litigation

Other litigants have challenged the executive orders elsewhere. In the District of Maryland,

three associations and the city of Baltimore moved to preliminarily enjoin the Equity Termination

Provision, the Certification Provision, and the Report Provision. See Nat’l Ass’n of Diversity Of-

ficers in Higher Educ. v. Trump, No. 25-cv-333 (ABA),

, at *2–4 (D. Md. Feb.

21, 2025). The District Court granted almost all parts of that request. It began by holding that the

Equity Termination Provision was likely void for vagueness under the Fifth Amendment—and

6 facially so.

at *19–21. Next, the court held that the plaintiffs’ First Amendment challenge to

the Certification Provision was also a likely winner. See

at *21–23. The part of the Report

Provision “threaten[ing] to initiate enforcement actions” probably violated the First Amendment

too. See id. at *24 (emphasis omitted) (citing Illegal Discrimination Order § 4(b)(iii)). And other

aspects of the Report Provision were likely unconstitutionally vague as well. See id. at *26 (so

holding for, seemingly, Illegal Discrimination Order §§ 2, 3, 4(b)(iii)–(iv)). Because the court also

found that the plaintiffs would suffer irreparable harm absent injunctive relief, it issued a nation-

wide injunction enjoining the defendants from enforcing the contested provisions. Id. at *27–30.

The Fourth Circuit stayed that decision pending the appeal. See Nat’l Ass’n of Diversity

Officers in Higher Educ. v. Trump, No. 25-1189, Dkt. No. 29 (4th Cir. Mar. 14, 2025). In a brief

order, the panel held that the government had carried its burden of “satisf[ying] the factors for a

stay.” Id. at 2. Concurring, Judge Harris explained that the challenged orders “are of distinctly

limited scope” “on their face.” Id. at 7 (Harris, J., concurring). Nothing in their text “purport[s]

to establish the illegality of all efforts to advance diversity, equity or inclusion,” so “they should

not be . . . understood” that way. Id. Nor do they facially “authorize the termination of grants

based on a grantee’s speech or activities outside the scope of the funded activities.” Id. The

government, then, had “shown the requisite likelihood that the challenged provisions do not on

their face violate the First or Fifth Amendment.” Id. And like her colleagues, Judge Harris re-

served judgment for potential challenges to “[a]gency enforcement actions that go beyond the Or-

ders’ narrow scope.” Id.; see also id. at 4 n.1 (Diaz, C.J., concurring); id. at 9 (Rushing, J., con-

curring).

Over in the Northern District of Illinois, a national nonprofit organization recently sought

a temporary restraining order enjoining several government defendants from enforcing parts of the

7 executive orders. See Chi. Women in Trades v. Trump, No. 25-cv-2005 (MFK),

,

at *1–2 (N.D. Ill. Mar. 27, 2025) (“CWIT I”). Only the Equity Termination and Certification

Provisions cleared the jurisdictional hurdles. See

at *2–4. But once they did, they also war-

ranted a temporary restraining order. See

at *11–13. The court, however, reconsidered part of

its decision when ruling on the plaintiff’s motion for a preliminary injunction. See Chi. Women in

Trades v. Trump, No. 25-cv-2005 (MFK),

(N.D. Ill. Apr. 14, 2025) (“CWIT

II”). After again holding that the Certification Provision probably violated the First Amendment,

see id. at 12, the court changed course and held that the Equity Termination Provision likely did

not, see id. at 12–14. Nor did the latter provision flout the Fifth Amendment’s prohibition on

unduly vague laws and regulations. See id. at 14–16. But as applied to a specific grant, the Equity

Termination Provision likely infringed Congress’s powers under the Spending Clause. See id. at

16–18.

C. Plaintiffs’ Challenge to the Executive Orders

About a month after President Trump issued the executive orders, “three mission-driven

non-profit organizations” filed this lawsuit alleging that several provisions are unconstitutional.

See ECF No. 1 (“Compl.”) ¶ 2. The National Urban League (“Urban League”) advocates to “ele-

vat[e] the standard of living for Black Americans and other historically underserved people and

urban communities through economic empowerment.” Id. ¶ 18. It does so by focusing on “edu-

cation and youth development, job training and workforce development, housing counseling, en-

trepreneurship, health, and overall quality of life.” Id. ¶ 19. To that end, the Urban League con-

tracts with and receives grants from the federal government to advance its mission. Id. The or-

ganization has, since 1973, “consistently received federal funds” helping it to “combat[] inequi-

ties.” ECF No. 29-2 ¶ 29 (“Morial Decl.”). Its “active federal grants” total $62 million—about

8 35 percent of its annual budget—and come from several agencies: the Centers for Disease Control

and Prevention, the Environmental Protection Agency, and the Departments of Labor, Commerce,

Justice, Agriculture, and Housing and Urban Development. Id. ¶¶ 30–31. According to the Urban

League, that federal money supports programs that “advance DEIA principles by helping partici-

pants overcome unfair biases based on race, ethnicity, sex, gender, disability, and other identities.”

Id. ¶ 31. To take one example, CDC grant money funds the Urban League’s “Partnering for Vac-

cine Equity program,” which aims to “improv[e] vaccination coverage in disproportionately af-

fected populations”—including “Black adults who are not up to date on their COVID and flu vac-

cinations.” Id. ¶ 35. And to take another, the Urban League recently “won a $500,000 grant from

the EPA to support its Urban Environmental Justice Collaborative Program.” ECF No. 44-1 (“Mo-

rial Supp. Decl.”) ¶ 4. That project would have developed “climate resilience within Black com-

munities disproportionately affected by climate-related disasters.” Id. ¶ 6. But when the Urban

League tried to withdraw funds from the grant in mid-March, it could not. Id. ¶ 7. The payment-

system account “associated with the EPA grant,” the Urban League later learned, had been “sus-

pended.” Id. ¶ 8.

For its part, the National Fair Housing Alliance (“Housing Alliance”) strives to end “all

forms of housing and lending discrimination” while “ensuring equitable housing opportunities for

all people.” Compl. ¶ 20. Among other initiatives, the Housing Alliance researches fair-housing

issues, educates people about them, and helps “victims of housing discrimination. Id. ¶ 21. And

it “regularly contracts with the federal government to provide educational services” that support

“private nonprofit local fair housing organizations.” ECF No. 29-5 ¶ 15 (“Rice Decl.”). More

than that, the Housing Alliance has received grants from HUD “many times over several dec-

ades”—including several “ongoing grants” and pending applications. Id. ¶ 20. One kind of grant,

9 for instance, “provides funding” to groups like the Housing Alliance “to conduct testing, investi-

gate violations, and obtain enforcement of the rights granted under the Fair Housing Act” and

similar local laws. Id. ¶ 21.

The AIDS Foundaton of Chicago (“AIDS Foundation”) has a different focus: “creat[ing]

equity and justice” for those “living with and vulnerable to the human immunodeficiency virus”

or “chronic conditions.” Compl. ¶ 22. To further that mission, it prioritizes “ending the HIV

epidemic” and homelessness, as well as advancing “racial equity” and “developing communities

of supporters and allies.” Id. And like the other plaintiffs, the AIDS Foundation “is a federal

grantee.” ECF No. 29-7 (“Israel Decl.”) ¶ 9. It receives, for example, “various forms of funding

and sub-grants from” Chicago’s and Illinois’s public health departments as “pass-through funding”

from the Department of Health and Human Services. Id. All told, about 85 percent of the AIDS

Foundation’s funding comes from the federal government. Id. ¶ 11.

Plaintiffs sued 27 defendants in late February, claiming that the Challenged Provisions are

unlawful for seven reasons. See Compl. ¶¶ 231–333. They moved for a preliminary injunction

over a week later. See ECF No. 29. In doing so, Plaintiffs press only two of their claims. The

Challenged Provisions allegedly violate the Fifth Amendment’s guarantee of due process because

they are vague. See ECF No. 29-1 at 10. And those provisions, Plaintiffs say, violate the First

Amendment too. 1 Id. Consistent with the parties’ proposed scheduling order, the Court held a

hearing on Plaintiffs’ motion.

1 Plaintiffs challenge all but two of the Challenged Provisions on both fronts. The excep- tions are the Contract Terms Provision (challenged only on due-process grounds) and the Gender Funding Termination Provision (challenged only on First Amendment grounds). ECF No. 29 at 2 n.5.

10 II. Legal Standard

“A preliminary injunction is an extraordinary remedy never awarded as of right,” but only

“upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council,

(2008). To obtain that remedy, a plaintiff “must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

. “[P]laintiffs bear the burden of persuasion on all four preliminary injunction factors.”

Open Top Sightseeing USA v. Mr. Sightseeing, LLC,

(D.D.C. 2014).

Two factors are essential: likelihood of success on the merits and irreparable harm. “Before

the Supreme Court’s decision in Winter,” a sliding-scale approach permitted a “weak showing on

one factor to be overcome by a strong showing on another.” Brennan Ctr. for Just. at NYU Sch.

of L. v. Dep’t of Com.,

, 96 (D.D.C. 2020). But now “it is clear that failure to

show a likelihood of irreparable harm” is, “standing alone, sufficient to defeat the motion.”

(quoting Navajo Nation v. Azar,

(D.D.C. 2018)). So too is the “failure

to show a likelihood of success on the merits” enough to show that a preliminary injunction is

unwarranted. English v. Trump,

, 316 (D.D.C. 2018).

III. Analysis

The Court begins and ends with the first preliminary-injunction factor: likelihood of suc-

cess on the merits. For every provision of the executive orders that Plaintiffs challenge, at least

one defect prevents them from showing that they are likely to prevail. Four of the provisions falter

at the starting gate of all claims: jurisdiction. Those provisions include intra-governmental man-

dates that do not inflict on Plaintiffs an injury in fact, so Plaintiffs have not shown that they likely

have standing to challenge them. As for the remaining provisions, Plaintiffs are unlikely to prevail

on either their First or Fifth Amendment claim. Those claims are facial, not as-applied, and

11 Plaintiffs have not carried the heavier burden that results. To start, Plaintiffs have not shown that

the provisions threaten a protected liberty or property interest—a threshold requirement for due-

process claims. And even if they had, Plaintiffs’ vagueness challenge fails for independent rea-

sons. 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 antidiscrimination law. With no claim likely to succeed

on the merits, the Court “need not proceed to review the other three preliminary injunction factors”

and will deny Plaintiffs’ motion. Ark. Dairy Coop. Ass’n, Inc. v. U.S. Dep’t of Agric.,

(D.C. Cir. 2009); see also Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

, 26 (D.D.C. 2016).

A. For Some of Their Claims, Plaintiffs Have Failed to Show that the Court Likely Has Jurisdiction

“[P]art of establishing a likelihood of success on the merits” is showing “a likelihood of

success in establishing jurisdiction.” Make the Rd. N.Y. v. Wolf,

(D.C. Cir.

2020). That is because the “affirmative burden of showing a likelihood of success on the merits

. . . necessarily includes a likelihood” that the Court will “reach[] the merits, which in turn depends

on a likelihood that [the] plaintiff has standing.” Obama v. Klayman,

(D.C. Cir.

2015) (citation omitted). The preliminary-injunction posture, then, requires a plaintiff to “make a

‘clear showing’ that she is ‘likely’ to establish each element of standing.” Murthy v. Missouri,

(2024) (citation omitted).

Those familiar elements enforce Article III’s case-or-controversy requirement—a “funda-

mental” limit ensuring that federal courts have “business deciding” a dispute. Murthy, 603 U.S.

at 56–57 (citations omitted). To clear that bar, a plaintiff must show “(i) that she has suffered or

likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the

12 defendant, and (iii) that the injury likely would be redressed by the requested judicial relief.” FDA

v. All. for Hippocratic Med.,

, 380 (2024). But not all injuries count. Instead, an

injury in fact is “concrete”—rather than “abstract”—and “particularized”—rather than “a general-

ized grievance.” Id. at 381 (citation omitted). Even then, a concrete and particularized injury must

also “be actual or imminent, not speculative.” Id. That means it must “have already” happened

(actual) or “be likely to” happen “soon” (imminent). Id. Plaintiffs seeking injunctive relief, more-

over, must also show “a sufficient likelihood of future injury,” id.—that is, a “substantial risk that,

in the near future,” the injury will occur. Murthy,

. In sum, the injury-in-fact re-

quirement “screens out plaintiffs who might have only a general legal, moral, ideological, or policy

objection to a particular government action.” All. for Hippocratic Med., 602 U.S. at 381.

Causation and redressability, for their part, are usually “flip sides of the same coin.” Sprint

Cmmc’ns Co. v. APCC Servs., Inc.,

(2008). The former requires the plaintiff to

show that his “injury likely was caused or likely will be caused by the defendant’s conduct.” All.

for Hippocratic Med., 602 U.S. at 382. And when that’s true, “enjoining the action or awarding

damages for the action will typically redress that injury.” Id. at 381. But things get harder for a

plaintiff when the government regulation does not “require or forbid some action by [him].” Id.

at 382. Put a bit differently, if the “plaintiff is not himself the object of the government action or

inaction he challenges, standing”—though “not precluded”—is “ordinarily ‘substantially more dif-

ficult’ to establish.” Lujan v. Defs. of Wildlife,

(1992) (citation omitted). All

together, these bedrock requirements insist that a plaintiff “possess a personal stake” in the case.

All. for Hippocratic Med., 602 U.S. at 379. And that “ensure[s] that courts decide litigants’ legal

rights in specific cases” rather than “in the rarified atmosphere of a debating society.” Id. (citation

omitted).

13 Finally, standing for one claim against one defendant is not standing for all claims against

all defendants. Because “standing is not dispensed in gross,” “plaintiffs must demonstrate standing

for each claim that they press and for each form of relief that they seek.” TransUnion LLC v.

Ramirez,

(2021). And further still, Plaintiffs must show that “for every defend-

ant,” at “least one plaintiff [has] standing to seek an injunction.” Murthy,

. But if

“multiple plaintiffs bring the same claims, a court need only ensure that one of those plaintiffs has

standing to pursue them.” Delta Air Lines, Inc. v. Export-Import Bank of U.S.,

(D.D.C. 2015). Against that backdrop, the Court will “untangle the mass” of Plaintiffs’

claims. 2 Murthy,

.

1. Plaintiffs Likely Lack Standing to Challenge the List Provision, the Re- port Provision, the Government Mandates Provision, and the Contract Terms Provision

The List Provision is the lowest-hanging fruit. It instructs agencies, “as appropriate,” to

provide the OMB Director with a “list” of federal grantees who received federal funding “to pro-

vide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since”

early 2021. Government DEI Order § 2(b)(ii)(C). In other words, the List Provision requires

nothing from Plaintiffs—no compliance, no changed behavior, nothing at all—because it is “not

‘aimed’ at them” but instead tells only the agencies to do something. Am. Libr. Ass’n v. Barr,

(D.C. Cir. 1992) (no standing based on plaintiff’s “subjective ‘chill’”).

2 Plaintiffs omitted one defendant when describing the scope of their First and Fifth Amendment claims in their complaint: Thomas Engels, the administrator of the Health Resources and Services Administration. Compare Compl. at 77, 82, with id. ¶ 42. That was presumably inadvertent; Plaintiffs bring both claims against the agency that Engels administers, see id. at 77, 82, and they sued him in his official capacity, see id. at 3. In any event, although the Court cannot technically enjoin Engels in his official capacity given the operative complaint’s omission, that point makes little practical difference for two reasons: an order enjoining HRSA could redress a concrete injury resulting from HRSA’s conduct, and the Court finds that Plaintiffs are not entitled to injunctive relief as to HRSA or any Defendant at this stage.

14 So what injury do Plaintiffs claim will follow from their possible placement on one of these

agency lists? Pinning that down is challenging because Plaintiffs seldom untangle how each pro-

vision harms them (or contributes to a cognizable injury). They instead sweepingly assert that “the

Executive Orders” jeopardize the “funding that fuels their mission driven work” and “are chilling

Plaintiffs’ speech and advocacy.” ECF No. 29-1 at 19–21; see also ECF No. 44 at 11 (describing

“Plaintiffs’ two principal injuries from the challenged provisions” as “loss of funding and chill of

their First Amendment free speech rights”).

The List Provision causes neither purported injury. Plaintiffs do not argue that this provi-

sion somehow affects their funding. Nor could they; the provision says nothing about slashing the

funds of listed entities. And left with their chilling injury—to the extent that they even rely on it

here—Plaintiffs fail to show that the List Provision causes a concrete and particularized harm that

is actual or imminent. Again, this provision does not tell the OMB Director to do anything with

the list once he gets it, so this is not a case in which a plaintiff has an objectively reasonable basis

to avoid speaking in hopes of avoiding some specific consequences resulting from being listed.

Instead, any asserted chilling injury here falls into a category of harms insufficient for standing:

“subjective ‘chill’” without “a claim of specific present objective harm or a threat of specific future

harm.” United Presbyterian Church in the U.S.A. v. Reagan,

(D.C. Cir. 1984)

(Scalia, J.) (quoting Laird v. Tatum,

, 13–14 (1972)). The only possible “chilling effect”

arises “merely from” Plaintiffs’ “fear that, armed with the fruits of th[e agencies’] activities”—

creating the lists—some unspecified government actor “might in the future take some other and

additional action detrimental to” them. Clapper v. Amnesty Int’l USA,

(2013)

(quoting Laird,

). And that is not enough, particularly because Plaintiffs do not even

suggest what someone in the government might do based on a list created under this provision (to

15 say nothing of whether that hypothetical action would be imminent). So no Plaintiff has estab-

lished that it likely has standing to challenge the List Provision.3

The Report Provision presents similar jurisdictional problems. As with the List Provision,

the Report Provision “issues no commands or prohibitions to these plaintiffs, and sets forth no

standards governing their conduct.” Reagan, 738 F.3d at 1378. Everything is intra-governmental:

the President has directed the Attorney General to spearhead “a report” that will “further inform

and advise” him. Illegal Discrimination Order § 4(b). Plaintiffs never say how this provision

implicates their loss-of-funding injury. Any such injury would also rest “on a highly attenuated

chain of possibilities” that “does not satisfy the requirement that threatened injury must be cer-

tainly impending.” Clapper,

. For the Report Provision to cause Plaintiffs to lose

funding, something like the following would need to happen: (1) the Attorney General includes in

her report a “plan” or “strateg[y]” of cutting funds for organizations that engage in DEI, even

though the provision does not mention funding; (2) the President adopts that aspect of the “pro-

posed strategic enforcement plan”; (3) the plan, however finalized, includes Plaintiffs (or at least

one of them) within the scope of the funding-cut strategy; and (4) some government actor enforces

that part of the approved plan and slashes funding. Illegal Discrimination Order § 4(b) (emphasis

added). Such “multi-tiered speculation[]” is “inconsistent with Article III standing.” Williams v.

Lew,

(D.D.C. 2015); see also CWIT I,

, at *2 (“[I]t is

3 To reiterate, Plaintiffs develop no argument specific to the List Provision. But if they are suggesting that just being identified as a federal grantee creates a cognizable chilling-effect injury, that founders on causation and redressability. Plaintiffs, after all, identify themselves as grant recipients that use funds for DEI purposes. See, e.g., Morial Decl. ¶¶ 30–31 (Urban League); Rice Decl. ¶¶ 19–20, 25 (Housing Alliance); Israel Decl. ¶¶ 9, 11, 13 (AIDS Foundation). That harm- causing identification, then, is “not fairly traceable to the Government’s” lists of federal grantees. Clapper,

. Nor could an order enjoining the agencies from creating those lists put the cat back in the bag.

16 difficult to see how [plaintiff] can be in imminent danger of an injury based on a provision that

simply requires a cabinet official to issue a report at a future date.”).

Nor does the Report Provision support any other theory of standing that Plaintiffs might be

asserting. If Plaintiffs worry about being identified as one of the “most egregious and discrimina-

tory DEI practitioners,” they have not tethered that concern to a cognizable harm. Illegal Discrim-

ination Order § 4(b)(ii). Plaintiffs need a “concrete harm (past or immediately threatened) apart

from the ‘chill’” that might result from possibly finding themselves on this list within the report.

Am. Libr. Ass’n,

. But they point to none. They do not say, for example, that the

Report Provision directs agencies to cut funding for every identified entity or to never contract

with them again. And the path to any such harm would be laden with the kind of speculation that

defeats standing: (1) the Attorney General’s report would need to identify Plaintiffs’ sectors as

“sectors of concern”; (2) the report would then have to identify Plaintiffs as one of the “most

egregious and discriminatory DEI practitioners” in a highlighted sector; (3) the proposed strategic

enforcement plan must contain some enforcement mechanism against those listed entities; (4) the

President must adopt the proposed plan, including the enforcement action; and (5) a government

actor must take enforcement action against Plaintiffs. Such impermissible speculation also under-

lies any standing theory premised on the directive to include within the proposed enforcement plan

“up to nine potential civil compliance investigations” per agency. Illegal Discrimination Order

§ 4(b)(iii). Those “potential” investigations would still only be part of “a proposed” enforcement

plan within a future report from the Attorney General to the President. Id. (emphases added). And

Plaintiffs can offer only speculation that they will wind up on one of these investigation lists.

Because “several speculative contingencies must occur before” Plaintiffs suffer any concrete harm,

their chilling-effect injury rests on a hypothetical harm far too uncertain to support standing.

F. Supp. 3d at 133.

The conclusion that Plaintiffs likely lack standing should come as no surprise for the List

and Report Provisions. Indeed, the implications of Plaintiffs’ theory—undeveloped as it is—that

they have standing to challenge these provisions are startling. At their core, the List and Report

Provisions tell the President’s subordinates to gather information and propose policy strategies.

Some component of the Executive Branch, to be sure, may eventually use that information or

implement a proposed strategy in a way that directly affects Plaintiffs—say, by refusing to honor

contracts with entities listed under either provision. But that is when Plaintiffs would have the

requisite “personal stake.” All. for Hippocratic Med., 602 U.S. at 379 (citation omitted). Until

then, Plaintiffs are at most “concerned bystanders” to internal Executive Branch processes. Id. at

382 (citation omitted). And Article III’s case-or-controversy requirement does not cover a chal-

lenge to the kind of intra-governmental directives and policy planning implicated by the List and

Report Provisions.

In a similar vein, Plaintiffs are also unlikely to establish standing to challenge the Govern-

ment Mandates Provision. That provision requires the OMB Director to “[t]erminate,” “as appro-

priate,” the following “mandates, requirements, programs, or activities” and those “like” them:

“diversity, equity, equitable decision-making, equitable deployment of financial and technical as-

sistance,” and “advancing equity.” Illegal Discrimination Order § 3(c)(iii) (internal quotation

marks omitted). As Defendants explain, this directive applies to “the government’s own mandates,

requirements, programs, or activities.” ECF No. 38 at 38 (internal quotation marks and citation

omitted). And the context of the executive order tracks that limited scope; the Government Man-

dates Provision is nestled within a part of the order titled “Terminating Illegal Discrimination in

the Federal Government.” Illegal Discrimination Order § 3 (emphasis added). Even after

18 Defendants highlighted that Plaintiffs “do not allege that they provide any relevant government-

wide programs” that this provision might cover, see ECF No. 38 at 38, Plaintiffs offer no specific

defense of their standing to challenge it, see ECF No. 44 at 10–14 (not mentioning the Government

Mandates Provision when defending standing). Nor does the Court see how this command to the

OMB Director could lead to an actual or imminent concrete harm tied to lost funds or chilled

speech. In short, because the provision “focus[es] on internal government agency . . . programs”

and activities, Plaintiffs have not shown that they have likely suffered “the required injury in fact”

for standing. CWIT I,

, at *2.

The Contract Terms Provision creates the closest call on standing. By its terms—and in

its context within the “Terminating Illegal Discrimination in the Federal Government” section—

the provision seems to apply only to internal government procedures. See Illegal Discrimination

Order § 3. Framed as a command to the OMB Director, the Contract Terms Provision instructs

him to “[e]xcise references to DEI and DEIA principles, under whatever name they appear, from

Federal acquisition, contracting, grants, and financial assistance procedures.” Id. § 3(c)(ii). The

goals include “streamlin[ing] those procedures, improv[ing] speed and efficiency, lower[ing]

costs, and comply[ing] with civil rights laws.” Id. Despite that seemingly internal focus, counsel

for Defendants clarified that “[p]rivate parties subject to Government agreements may be required

to follow some of the relevant federal procedures.” ECF No. 45 at 1.

Even after the hearing and that explanation, the scope of Contract Terms Provision is far

from clear. All the Court knows is that the provision requires the removal of DEI “references”

from certain “federal procedures,” some of which private entities contracting with the government

may need to follow. Read one way, this directive just removes certain terms that Plaintiffs (pre-

sumably) might prefer to have in their contracts without affecting funding availability. But read

19 more aggressively, the provision perhaps instructs the OMB Director to eliminate substantive con-

tract benefits—say, a grant of funding for a project promoting diversity in the workforce—if the

contract provision “references” a DEI principle.

That uncertainty cuts against Plaintiffs here because they bear the burden of “mak[ing] a

clear showing that [they] are likely to establish each element of standing.” Murthy,

(internal quotation marks and citation omitted). Plaintiffs have not explained how the Contract

Terms Provision inflicts (in whole or in part) either asserted harm: lost funding and chilled speech.

They don’t say, for example, that one of their federal contracts includes a “federal procedure” that

was changed under this provision and that requires them to take an anti-DEI stance. And any

“present deterrence from First Amendment conduct” stemming from “the difficulty of determin-

ing” how the provision “appli[es]” to Plaintiffs’ existing (or potential) contracts does “not by itself

support standing.” Barr,

(internal quotation marks and citation omitted). As for

the claimed funding-loss injury, it would be odd for a provision about excising references from

federal procedures to operate as a way for the government to cut funding. For one thing, the

Contract Terms Provision is part of a section about terminating illegal discrimination “in the Fed-

eral Government.” Illegal Discrimination Order § 3 (emphasis added). And relatedly, different

provisions of the executive orders expressly direct agency heads to eliminate funding for certain

projects and activities. See Gender Ideology Order § 3(e) (directing agencies to “end the Federal

funding of gender ideology” “as permitted by law”); id. § 3(g) (“Federal funds shall not be used

to promote gender ideology.”); Government DEI Order § 2(b)(i) (directing agencies to “terminate,

to the maximum extent allowed by law, all . . . ‘equity-related’ grants or contracts”). Those pro-

visions calling for funding cuts make it even less likely that the Contract Terms Provision, aimed

at the government’s procedures, serves as a way to eliminate Plaintiffs’ federal funding.

20 In sum, Plaintiffs have not carried their burden of showing that a concrete injury has re-

sulted or is likely to result from some enforcement—whatever that looks like—of the Contract

Terms Provision. Defendants might, of course, interpret and apply the Contract Terms Provision

in a way that creates a cognizable injury traceable to their conduct. But any such theory is “riddled

with contingencies and speculation that impede judicial review,” showing that such a challenge is

likely not justiciable now. Trump v. New York,

(2020). Indeed, because “[a]ny

prediction how the Executive Branch might eventually implement” the Contract Terms Provision

is “no more than conjecture at this time,” Plaintiffs have also failed to show that their challenge to

this provision is likely ripe—yet another reason they are unlikely to succeed on the merits.

(internal quotation marks and citation omitted).

2. Plaintiffs Likely Have Standing to Challenge the Gender Funding Ter- mination Provision, the Promoting Gender Ideology Provision, the Eq- uity Termination Provision, and the Certification Provision

Unlike the provisions discussed above, the other four likely support standing for injunctive

relief. Three group together as provisions that make it more likely that Plaintiffs will lose access

to money—“a classic pocketbook injury sufficient to give [them] standing.” Tyler v. Hennepin

County,

(2023); see also, e.g., Collins v. Yellen,

(2021) (de-

scribing “pocketbook injury” as “a prototypical form of injury in fact”). The Gender Ideology

Order contains two: § 3(e), which calls on agencies to “end the Federal funding of gender ideol-

ogy” as “permitted by law,” and § 3(g), which says that “Federal funds shall not be used to promote

gender ideology.” And the third provision, residing in § 2(b)(i) of the Government DEI Order,

directs agencies to “[t]erminate” equity-related grants and contracts. On their face, these three

provisions threaten a wide range of funding—any federal grant or contract related to equity, and

any funding that promotes the idea that there are “genders . . . disconnected from one’s sex.” Gen-

der Ideology Order § 2(f). So the standing question is whether Plaintiffs have shown that their

21 federal funds are or are likely to fall within that scope.

The Equity Termination Provision has likely already caused monetary injury to at least one

Plaintiff, so the Court begins there. Before President Trump took office, the Urban League won a

half-million-dollar grant from EPA to “launch” a project geared towards “enhancing climate resil-

ience within Black communities.” Morial Supp. Decl. ¶¶ 4, 6. But the Urban League could not

withdraw funds in March, learning later that “the account associated with the EPA grant” had been

“suspended.” Id. ¶ 8. As Defendants’ counsel acknowledged, this “instance . . . probably” estab-

lishes “standing” for the Urban League to seek an injunction barring EPA from enforcing the Eq-

uity Termination Provision. ECF No. 46 (“Hearing Tr.”) at 52. Indeed it does: the Urban League

won the grant for what seems like an equity-related project but then lost access to the funds, and

an order enjoining EPA (and its administrator, Lee Zeldin) from enforcing the Equity Termination

Provision would likely free up those funds because Defendants identify no other reason for with-

holding them.

Other Plaintiffs describe their lost funds less clearly. For example, the Housing Alliance

says that it lost “part of another contract related to equity and fairness in housing that had been

subcontracted to” it. Rice Decl. ¶ 33. But the details stop there, leaving the Court unsure whether

the contract involved grant money that would support the pocketbook injury that the Housing Al-

liance claims. The AIDS Foundation, for its part, points to an email from Chicago—with whom

it subcontracts—which apparently “confirmed . . . that we were subject to the Federal budget

freeze.” Israel Decl. ¶ 31. Again, though, the specifics are sparse. And without knowing more

about the subcontracts, it is hard to identify the provision to which the monetary injury is “fairly

traceable”—an essential part of Article III standing. Clapper,

. Plaintiffs of course

may bring a wide-ranging suit against over two dozen defendants while challenging eight

22 provisions of the executive orders. But the price of doing so is bearing the burden of establishing

standing for each claim as to each defendant. That requires work—specifically, a showing that

“for every defendant,” “at least one plaintiff” has “standing to seek an injunction” for “each claim

that” Plaintiffs “press.” Murthy,

(citation omitted). And Plaintiffs have not done

that across the board.

Still, Plaintiffs’ declarations do support a likelihood of standing to challenge the three fund-

ing-focused provisions as to most Defendants based on the likelihood that Plaintiffs will lose fund-

ing because of those provisions. The Urban League does the heaviest lifting on this score. Its

active federal grants come from the EPA, CDC, and the Departments of Labor, Housing and Urban

Development, Justice, Commerce, and Agriculture. Morial Decl. ¶ 30. Those funds support pro-

grams “advanc[ing] DEIA principles,” meaning that grant money from those agencies is likely at

risk under the Equity Termination Provision. Id. ¶ 31. More than that, the Urban League “advo-

cates for” “LGBTQ people of color” and “Black transgender people.” Id. ¶ 10. So it is likely to

lose federal funding for that advocacy too under the Gender Funding Termination Provision and

the Promoting Gender Ideology Provision because each directs agencies to avoid allowing federal

money to promote gender ideology—a concept that includes elevating “self-assessed gender iden-

tity” over “biological categor[ies] of sex.” Gender Ideology Order §§ 2(f), 3(e), (g). And the

AIDS Foundation adds several other Defendants from which it receives federal funding: Health

and Human Services, Health Resources and Services Administration, National Institutes of Health,

and Administration for Community Living. See Israel Decl. ¶¶ 8–9. And like the Urban League,

the AIDS Foundation engages in activities that render the organization susceptible to losing funds

under the Equity Termination Provision and the two funding-focused provisions in the Gender

Ideology Order. See, e.g., id. ¶ 13 (discussing the foundation’s focus on “address[ing] systemic

23 factors” like “racism, sexism, [and] anti-transgender bias”). Finally, these three provisions cause

the likelihood that Plaintiffs will lose access to money because they direct agencies to stop provid-

ing the federal funds. And an order enjoining Defendants from enforcing those provisions would

redress that harm by making Plaintiffs less likely to suffer that monetary harm. Unlike in Lujan,

“the agencies funding” the grants and contracts that Plaintiffs worry about are “parties to the case,”

so the path to redressing the likely monetary injury is straightforward: an order telling the agencies

not to enforce the provisions’ mandate to terminate certain kinds of funding. Lujan,

. 4 The bottom line is that Plaintiffs have standing to challenge the Equity Termination Provi-

sion, the Gender Funding Termination Provision, and the Promoting Gender Ideology Provision

as to all Defendants except the few whom they have not connected to any injury that these provi-

sions might cause—namely, OMB (and its Director) and the Office of Federal Contract Compli-

ance Programs (and its Acting Director). 5

The standing analysis for the Certification Provision follows a similar path. For all the

reasons above, Plaintiffs (or at least one of them) are likely—based on their previous and planned

4 At the hearing, Defendants argued that Plaintiffs have not established causation and re- dressability because agencies could cut funding for other reasons—that is, policy directives other than the executive orders could cause Plaintiffs to lose funding. Hearing Tr. at 51–52. What might those directives be? Defendants have not said. And if other directives do make a loss of funding likely such that enjoining the funding-focused provisions would not redress Plaintiffs’ actual and probable monetary injuries, then the Court wonders why the President included these provisions in the executive orders at all. In any event, these provisions plainly and straightforwardly direct agencies to cut certain kinds of funding. And unsupported speculation about unidentified policies that might somehow threaten funding will not defeat causation at this stage. Nor must the re- quested relief certainly remedy Plaintiffs’ injuries. Rather, the question is whether “the relief sought . . . will likely alleviate the particularized injury alleged.” West v. Lynch,

(D.C. Cir. 2017) (emphasis added) (citation omitted). And Plaintiffs have shown that en- joining the three funding-focused provisions would likely do that. 5 Plaintiffs do not seek “an injunction against President Trump,” see ECF No. 44 at 31, so the Court need not address standing as to him for purposes of this motion.

24 activity as federal grantees—to face the “forced choice” that the Certification Provision presents:

change their programming to enable them to make the certification; make the certification without

changes and risk a false certification; or give up federal funds and contracts. Stavrianoudakis v.

U.S. Fish & Wildlife Serv.,

(9th Cir. 2024) (noting that whether conditions

imposed under forced choice “offend the Fourth Amendment goes to the merits,” not to “injury

for standing purposes”). In this way, the Certification Provision is like a “regulation[] that re-

quire[s] . . . some action by the plaintiff” even though the Illegal Discrimination Order frames it

as a directive to the agencies. All. for Hippocratic Med., 602 U.S. at 382. Plaintiffs and others

receiving grants or contracting with the government are forced to do something they otherwise

would not need to. So this provision is the type for which “both the injury in fact and causation

requirements” are “almost invariably satisf[ied].” Id.

That holds true here. Because of the Certification Provision, Plaintiffs must affirmatively

state that they do “not operate any programs promoting DEI that violate any applicable Federal

anti-discrimination laws”—and that such compliance is material for purposes of the False Claims

Act. Illegal Discrimination Order § 3(b)(iv). So Plaintiffs must assess whether the agency (or

DOJ, or another Executive Branch entity) might find that any program—not just those federally

funded—violates antidiscrimination law. And if Plaintiffs have doubts, the Certification Provision

imposes the lose-lose-lose choice described above: change their programming, risk a false certifi-

cation, or forgo the federal funds or contract. That injury is real, and Plaintiffs are likely to suffer

it given their record as federal contractors and grant recipients. This harm is also caused by the

Certification Provision and would be remedied by an order enjoining Defendants from applying

it. And as explained above, Plaintiffs have alleged that all Defendants except a handful (OMB,

OFCCP, and their leaders) are likely to have contracts or grants implicated by this provision. That

25 group of Defendants is also likely to impose this choice on at least one Plaintiff given the clear

command of the executive order: “The head of each agency shall include in every contract or

grant” the certification and FCA-materiality clauses. Illegal Discrimination Order § 3(b)(iv) (em-

phases added).

No matter, according to Defendants, because ripeness problems pose another jurisdictional

barrier. See ECF No. 38 at 22–24. Ripeness and standing are “related doctrines of justiciability”

that ensure strict adherence to Article III’s case-or-controversy requirement. Trump,

. Ripeness does that by preventing courts “from entangling themselves in abstract disagree-

ments”—specifically, by assessing the issues’ “fitness” for “judicial decision” and the “hardship

to the parties of” not considering those issues. Beach TV Props., Inc. v. Solomon,

(D.D.C. 2017) (quoting Nat’l Park Hosp. Ass’n v. Dep’t of Interior,

, 807–

08 (2003)).

At least as to the provisions that Plaintiffs likely have standing to challenge, Defendants

overstate the ripeness concerns. They begin with a charge of speculation: Plaintiffs’ claims rest

on conjecture about “intervening actions that the agencies might take to implement the” executive

orders. ECF No. 38 at 23. But the remaining provisions don’t mince words. Those addressing

funding and contracts (the Equity Termination Provision, the Gender Funding Termination Provi-

sion, and the Promoting Gender Ideology Provision) all pointedly tell agencies to terminate grants

and contracts in specified circumstances. And for its part, the Certification Provision also includes

a straightforward directive: agencies must include two terms requiring certification in every con-

tract and grant. The substance of those terms, moreover, is clear even if agencies might use slightly

different formulations. They must require counterparties and grantees to certify that no programs

promote DEI in a way that violates federal antidiscrimination law, and compliance with those laws

26 is material under the False Claims Act. See Illegal Discrimination Order § 3(b)(iv). So Defendants

are the ones speculating by suggesting that the agencies will disregard these clear mandates when

implementing the provisions. And Plaintiffs have pointed to examples of agencies acting consist-

ently with those directives by terminating or suspending grants and contracts. See ECF No. 44 at

11. Given that, Defendants’ assertion that the agencies might implement the provisions in uncer-

tain ways does not create a ripeness problem.

Pressing on, Defendants add that the executive orders’ savings clauses—i.e., the provisions

instructing agencies to implement them as permitted by law—render Plaintiffs’ claims unripe be-

cause they rely on speculation that the agencies will not comply with the law when applying the

provisions. See ECF No. 38 at 23–24. But whether Defendants will apply the provisions in ways

affecting Plaintiffs and whether they will do so unlawfully are distinct questions. And ripeness is

more concerned with the former. Requiring Plaintiffs to show in the ripeness inquiry that Defend-

ants will apply the provisions unlawfully would “conflate the analysis of constitutional ripeness

with the merits of [their] claims.” Rubinov v. Pliler, No. 21-cv-4397 (LJL),

, at

*5 (S.D.N.Y. Nov. 29, 2021); cf. Whitmore v. Arkansas,

(1990) (“Our threshold

inquiry into standing ‘in no way depends on the merits of the [plaintiff’s] contention that particular

conduct is illegal.” (citation omitted)). That is why Defendants’ main case for this argument,

Construction Trades Department, AFL-CIO v. Allbaugh, never mentions ripeness. See

(D.C. Cir. 2002) (describing what a plaintiff must show to prevail in a “facial attack” (cita-

tion omitted)).

The upshot is that Plaintiffs likely have standing to challenge four provisions as to most

Defendants: the Equity Termination Provision, the Gender Funding Termination Provision, the

27 Promoting Gender Ideology Provision, and the Certification Provision. 6 Those claims are also

probably ripe, so they present no jurisdictional barriers at this stage.

B. Plaintiffs Fail to Establish That They Are Likely to Succeed on Their Claims Under the First and Fifth Amendments

1. Plaintiffs Bring Facial, Not As-Applied, Constitutional Challenges

The first step in assessing whether Plaintiffs are likely to prevail on their First or Fifth

Amendment claims is clarifying whether those claims are facial challenges, as-applied challenges,

or both. The difference matters. True, “the substantive rule of law necessary to establish a con-

stitutional violation” remains the same. Bucklew v. Precythe,

(2019). But the

distinction “affects the extent to which the invalidity of the challenged” regulation “must be”

shown “and the corresponding ‘breadth of remedy.’”

(citation omitted). Some background on

these kinds of claims, then, is necessary.

“A facial challenge is really just a claim that the law or policy at issue is unconstitutional

in all its applications.” Bucklew,

. That is a big claim. And making it “comes at

a cost.” Moody v. NetChoice, LLC,

(2024). Facial challenges chafe against the

ordinary rule that courts “handle constitutional claims case by case, not en masse.”

That pref-

erence makes sense because facial challenges “often rest on speculation about the law’s coverage

and its future enforcement.”

(internal quotation marks and citation omitted). On top of that,

they “threaten to short circuit the democratic process by preventing” laws and regulations “from

6 As explained below, Plaintiffs bring facial rather than as-applied challenges to these pro- visions. But bringing “a facial challenge to the constitutionality of” a regulation or other directive does not “itself suffice[] to establish standing.” Williams v. Lew,

(D.C. Cir. 2016). Instead, a plaintiff must still make the “constitutionally mandated showing” of injury in fact, causation, and redressability. Id.; see also Pub. Citizen v. Trump,

, 159– 60 (D.D.C. 2019) (rejecting argument that the “breadth of [a] facial challenge” to “an Executive Order” establishes “standing”).

28 being implemented in constitutional ways.”

(internal quotation marks and citation omitted).

That is why litigants raising such a challenge typically bear the heavy burden of showing that “no

set of circumstances exists under which the” regulation “would be valid.” United States v. Hansen,

(2023) (citation omitted) (emphasis removed). But recognizing that “free ex-

pression” needs “breathing room,” the doctrine softens when the challenged regulation implicates

the First Amendment and permits facial invalidation “even though” the regulation “has lawful

applications, and even at the behest of someone to whom the [regulation] can be lawfully applied.”

In that context, a facial claim can succeed if the challenger shows that the regulation “prohibits

a substantial amount of protected speech relative to its plainly legitimate sweep.”

(in-

ternal quotation marks and citation omitted). The main takeaway is two-fold. “[F]acial chal-

lenges” are “hard to win,” “even when . . . based on the First Amendment.” Moody,

. And they focus on the entire “scope” of the challenged regulation: “What activities, by what

actors, do the laws prohibit or otherwise regulate” on their face?

.

An as-applied challenge, on the other hand, is a claim that a regulation is “unconstitutional

as applied to” a plaintiff’s “particular” conduct—or, as relevant here, “particular speech activity.”

Edwards v. District of Columbia,

(D.C. Cir. 2014). Phrased differently: this

kind of claim “tests the application of th[e] restriction to the facts of a plaintiff’s concrete case.”

16A Am. Jur. 2d Constitutional Law § 419 (Jan. 2025 update). And it does so based on a “factual

record” that enables the Court to assess “the application of” the challenged restriction “to a specific

person.” Richmond Med. Ctr. for Women v. Herring,

(4th Cir. 2009) (en banc);

see also, e.g., Justice v. Hosemann,

(5th Cir. 2014).

Distinguishing between facial and as-applied challenges is not always easy. But the “label

is not what matters.” John Doe No. 1 v. Reed,

(2010). Instead, the key

29 considerations are the nature of the “plaintiffs’ claim and the relief that would follow.”

If

those things “reach beyond the particular circumstances of the[] plaintiffs,” then they must “satisfy

[the] standards for a facial challenge.”

Against this backdrop, Plaintiffs’ constitutional claims “challenge[]” the executive orders

“as a whole, rather than as to particular applications.” Moody,

. Their motion sets

that tone with its headers, which repeatedly assert that the “executive orders” violate the Constitu-

tion for various reasons—not that particular applications of the specific Challenged Provisions do.

See ECF No. 29-1 at 22 (“The Executive Orders Violate the Fifth Amendment’s Due Process

Clause.”); id. at 23 (“The Executive Orders Do Not Give Fair Notice of What They Require.”); id.

at 29 (“The Executive Orders Authorize Arbitrary and Discriminatory Enforcement.”); id. at 32

(“The Executive Orders’ Vagueness Chills Protected Speech.”); id. at 33 (“The Executive Orders

Violate the Constitution’s Guarantees of Free Speech.”). Classifying the form of a constitutional

challenge is, to be sure, not a game of counting noses (or headers). But it is telling that Plaintiffs

consistently underscore the constitutional defects of the executive orders writ large while never

using the term “as applied” in their motion.

More to the point, Plaintiffs attack the executive orders and ask for relief in ways confirm-

ing that their challenges are facial and not as-applied. They begin and end their motion by asking

the Court to “preliminary enjoin Defendants’ continued implementation of the challenged provi-

sions of the” executive orders. ECF No. 29-1 at 51; see also id. at 11 (“preliminarily enjoin De-

fendants from enforcing the Executive Orders”). Plaintiffs’ proposed order, moreover, leads with

a sweeping request for relief: “Defendants shall not implement or enforce the . . . ‘Challenged

Provisions’ . . . including without limitation through the promulgation of any rules or regulations,

or in any manner by way of contract, subcontract, purchase order, grant, or sub-grant[.]” ECF

30 No. 29-10 ¶ 1 (emphases added). Further still, Plaintiffs request an order directing Defendants to

“reinstate any contracts, subcontracts, grants, or subgrants or other agreements that have been re-

scinded as part of implementing or effectuating the Challenged Provisions.” Id. ¶ 3 (emphasis

added). Neither relief is cabined to Plaintiffs. 7

True, Plaintiffs also ask the Court to order Defendants to “rescind all agency-wide direc-

tives implementing or effectuating the Challenged Provisions . . . against Plaintiffs,” and to “rec-

tify contracts” and “grants . . . entered into with Plaintiffs” if “provisions have been inserted pur-

suant to . . . the Challenged Provisions.” ECF No. 29-10 ¶¶ 2, 4. But just mentioning Plaintiffs as

part of some requested relief does not mean that Plaintiffs’ constitutional challenges are as-applied

rather than facial. Plaintiffs still need to offer a factual basis for assessing how the Challenged

Provisions “are unconstitutional as applied to their particular speech activity.” Edwards,

(emphasis added). Plaintiffs’ requested relief, though, does not target any specific appli-

cation of the Challenged Provisions to particular speech activity; the proposed order identifies no

specific action that a Defendant has taken against a Plaintiff that Plaintiffs claim is unconstitutional

and should be enjoined for that reason. To the contrary, even the relief tethered to Plaintiffs covers

“all” directives “implementing or effectuating the Challenged Provisions” against Plaintiffs—no

matter what speech activity was at issue or how a given provision was implemented. ECF No. 29-

10 ¶ 2; see also id. ¶ 4 (requesting an order “rectify[ing]” contracts and grants entered into with

Plaintiffs, without specifying any particular agreements or provisions altered). That is not the stuff

of an as-applied challenge.

7 At the hearing, Plaintiffs said that they are asking “not for a nationwide injunction,” but “for a party injunction.” Hearing Tr. at 11. That is inconsistent with their briefing and proposed order. In any event, and as explained below, this statement does not cure Plaintiffs’ failure to identify the factual details necessary to support an as-applied challenge and their inability to artic- ulate the contours of such a challenge in their briefing.

31 Plaintiffs’ belated efforts to salvage an as-applied claim are unavailing. In their reply,

Plaintiffs—for the first time—contend that their “vagueness challenge is properly understood as

an as-applied post-enforcement challenge” because Defendants are “presently violating Plaintiffs’

due process rights by enforcing the Orders’ vague provisions against them.” ECF No. 44 at 19.

Which Defendants? What enforcement actions? Against which Plaintiffs and which particular

speech activity? Plaintiffs’ reply does not say. For example, when arguing that they “could have

a [protected] property interest in their grants and contracts,” Plaintiffs do not identify a single grant

or contract that purportedly supplies that interest. See id. at 18. This conclusory reply-brief asser-

tion, then, is not enough to raise an as-applied challenge under the Due Process Clause. 8 And even

that is more attention than Plaintiffs give their purported as-applied First Amendment challenge.

Their reply brief mentions no such challenge in the section devoted to the merits of their First

Amendment claim. See id. at 21–27. Instead, Plaintiffs reiterate the facial nature of their claim:

“seven provisions across the Executive Orders”—not seven (or any) applications of the provi-

sions—“violate the First Amendment and justify the need for immediate preliminary relief.” Id.

at 22 (emphasis added).

Pressed at the hearing about the scope and propriety of their purported as-applied chal-

lenge, Plaintiffs offered five situations in which they claim one Defendant or another applied the

Challenged Provisions. First, they pointed to an instance in late January: the AIDS Foundation

could not withdraw funds from a CDC grant for three days, and Plaintiffs believe that the Gender

8 When addressing the breadth of the injunction, Plaintiffs say in their reply that they “chal- lenge the at-issue provisions both as-applied and on their face.” ECF No. 44 at 31. It is unclear whether Plaintiffs are referring to their assertion that they have raised an as-applied vagueness challenge or whether they are trying to raise that kind of challenge on First Amendment grounds too. In any event, this statement is even more conclusory than the first one. And it is no substitute for identifying the facts necessary for an as-applied challenge—and explaining the contours of such a challenge. See United States v. Andujar-Arias,

(1st Cir. 2007).

32 Funding Termination Provision and the Promoting Gender Ideology Provision caused that tempo-

rary disruption. See Hearing Tr. at 6–7. Second, they identify a “fair housing subcontract” that

the Housing Alliance “had” but that “was canceled by HUD” on January 31—possibly the result

of HUD applying the Contract Terms Provision or the Equity Termination Provision. See

at

7–8. Third, Plaintiffs flag that on February 1 the AIDS Foundation “heard about the cancelation

of a contract it relies on” as a subcontractor with Chicago. See id. at 8. Apparently, HRSA had

“put on a presentation” for “grantees” and told “organizations” that they “needed to remove” cer-

tain words and “references to transgender people” from “their publications” under “the Anti-Gen-

der Executive Order.” Id. Fourth, the Housing Alliance learned on February 11 that HUD had

canceled “a contract related to housing equity and fairness that had been subcontracted to it.” Id.

at 9. Fifth and finally, the Urban League could not withdraw funds under its EPA grant in mid-

March and promptly learned that the grant would be suspended—presumably because of the Eq-

uity Termination Provision. Id. at 9–10.

Putting aside the problem of not raising these challenges until oral argument—and not even

hinting at a non-facial challenge until the reply brief—these examples do not support an as-applied

claim. “[A]s-applied challenge[s] necessarily require[] the development of a factual record for the

court to consider.” Club Madonna, Inc. v. City of Miami Beach,

(11th Cir.

2019) (internal quotation marks and citation omitted). True, the preliminary-injunction posture

does not demand a summary-judgment type of record. But Plaintiffs have identified neither key

parts of the record nor the contours of any as-applied challenges to Defendants’ conduct. Start

with the AIDS Foundation’s temporary inability to access CDC grant funds. The declaration offers

no details about the grant award—nothing about what it covers, what its terms are, whether it

permits termination in some cases, or whether it has features that might support a cognizable

33 property interest. See Israel Decl. ¶ 29. So too for the AIDS Foundation’s subcontract with Chi-

cago. Plaintiffs do not identify the specific grants or their terms, see

¶ 31—the kind of “partic-

ularized facts” that “allow a court” to assess “as-applied challenges” in situations like this, see

Justice,

. Nor does the declaration elaborate on what “notices” HRSA had “been

sending . . . to grantees like . . . Chicago about the implementation of the[] Executive Orders.”

Israel Decl. ¶ 31.

The Housing Alliance examples fare no better. One includes no details about the contract

or enforcement action that terminated it; all the Court knows is that an unidentified “part” of a

“contract related to equity and fairness in housing . . . had been cancelled.” Rice Decl. ¶ 33.

Again: no terms, no details about the termination, and no other facts sufficient to enable as-applied

review. The Housing Alliance offers more information about another terminated subcontract by

explaining that the “initial work order for it” provided for a training outline that would “include a

foundation of cultural competency” addressing DEI that is “necessary in all fair housing work.”

Id. ¶¶ 16, 32. But the problem remains because Plaintiffs offer only this scarce detail without

describing (or providing) key terms and provisions of the subcontract. And without more details,

how, for example, is the Court to assess whether this particular subcontract supports a protected

property or liberty interest? In short, the record is far too light on information about the specific

enforcement actions that Plaintiffs cited at oral argument to supply the necessary “factual record”

that would enable the court to assess “the application of” the Challenged Provisions “to a specific

person.” Richmond Med. Ctr. for Women,

.

The closest call is the EPA grant that the Urban League lost access to. Its declarant de-

scribed the scope of the grant, provided details about its purpose and the selection process, dis-

cussed the Urban League’s inability to withdraw funds, and included as an exhibit the notice of

34 award and several conditions of the grant. See Morial Supp. Decl. ¶¶ 3–8; ECF No. 44-2. And

Plaintiffs’ failure to highlight this grant in their motion is understandable because the Urban

League did not learn about the suspension until after that filing. See Morial Supp. Decl. ¶ 7. But

failing to do so in their reply brief, filed almost a week after that discovery, is less excusable.

Plaintiffs develop no as-applied argument for their First Amendment claim, and certainly not one

specific to this application of the Challenged Provisions (presumably the Equity Termination Pro-

vision) by EPA to the Urban League. And despite gesturing at an “as-applied post-enforcement

challenge” on vagueness grounds, Plaintiffs again fail to identify what that as-applied challenge

looks like—say, by explaining how a “vague provision[]” was “enforc[ed]” against the Urban

League with respect to this EPA grant. ECF No. 44 at 19. So even if the record could support an

as-applied challenge focused on this EPA grant, Plaintiffs have not pressed such a claim in their

briefing. And the Court will not construct an as-applied argument for them.

“If” Plaintiffs “are concerned about” particular contracts and grants, “they would be better

served by bringing a First Amendment” or Fifth Amendment “challenge as applied to those” agree-

ments. Moody,

(Barrett, J., concurring). But Plaintiffs’ alternative focus has been

clear: they target the Challenged Provisions as a whole and fail to develop the arguments (or iden-

tify the facts) necessary to raise an as-applied challenge alongside their facial ones. That “deci-

sion” was theirs to make, and it “comes at a cost.”

(majority opinion). So the Court will

assess their constitutional challenges as facial ones.

2. Plaintiffs Fail to Show that They Are Likely to Succeed on Their Fifth Amendment Claim

Having untangled those threshold issues, the Court turns to Plaintiffs’ claim that the Chal-

lenged Provisions are void for vagueness. As explained, Plaintiffs fail to show that they likely

have standing to contest four of the Challenged Provisions, and they press only a First Amendment

35 claim against the Gender Funding Termination Provision. So just three are in play here: the Cer-

tification Provision, the Equity Termination Provision, and the Promoting Gender Ideology Provi-

sion. And to repeat, the challenge to these provisions is facial rather than as-applied for the reasons

discussed above.

The “[v]agueness doctrine is an outgrowth not of the First Amendment, but of the Due

Process Clause of the Fifth Amendment.” United States v. Williams,

(2008).

That doctrine recognizes two kinds of impermissible vagueness. The first rests on a “fundamental

principle” of “our legal system”: laws “regulat[ing] persons or entities must give fair notice of

conduct that is forbidden or required.” Karem v. Trump,

(D.C. Cir. 2020) (ci-

tation omitted). To do so, the law must “provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits.” Hill v. Colorado,

(2000).

The second kind of vagueness arises if the law “authorizes or even encourages arbitrary and dis-

criminatory enforcement.”

Typically, a plaintiff “cannot complain of the vagueness of the law

as applied to the conduct of others” when he “engages in some conduct that is clearly proscribed.”

Williams,

(citation omitted). That “requirement” is “relaxed,” however, “in the

First Amendment context,” where plaintiffs may “argue that a statute is overbroad because it is

unclear whether it regulates a substantial amount of speech.”

And cases involving speech

require “rigorous adherence” to vagueness principles “to ensure that ambiguity does not chill pro-

tected speech.” FCC v. Fox Tel. Stations Inc.,

, 253–54 (2012). Still, neither “perfect

clarity” nor “precise guidance” is “required”—even when “regulations . . . restrict expressive ac-

tivity.” Williams,

(citation omitted). So a regulation may pass constitutional

muster if it is “marked by flexibility and reasonable breadth[] rather than meticulous specificity.”

Grayned v. City of Rockford,

(1972) (internal quotation marks and citation

36 omitted). And because Plaintiffs bring a facial challenge, they must show that the provisions are

not “valid ‘in the vast majority of [their] intended applications.’” Hill,

(quoting

United States v. Raines,

(1960)).

Responding to Plaintiffs’ due-process claim, Defendants press two arguments. They begin

with what they say are threshold deficiencies. The vagueness doctrine does not apply to these

presidential directives that do not regulate “primary conduct,” see ECF No. 38 at 24, and even if

it did, Plaintiffs’ facial challenge is categorically improper, see

at 26–27. Defendants add that

Plaintiffs’ due-process claim falters for independent reasons too, including that Plaintiffs have not

identified a protected interest and that the provisions offer enough guidance. See

at 28–35.

Plaintiffs’ due-process claim suffers from several flaws that make success on the merits

unlikely. Begin with a bedrock requirement for those claims: an interest that due process protects

but that the remaining Challenged Provisions threaten. “[A] void-for-vagueness challenge is,” at

bottom, “a due-process claim,” so Plaintiffs must show that they were “deprived of a constitution-

ally-protected property or liberty interest.” McClelland v. Katy Ind. Sch. Dist.,

(5th Cir. 2023). That follows from the vagueness doctrine’s origins as “an outgrowth . . . of the

Due Process Clause of the Fifth Amendment.” Woodhull Freedom Found. v. United States,

(D.C. Cir. 2023) (citation omitted). And the “first inquiry in every due process

challenge is whether the plaintiff has been deprived of a protected interest in liberty or property.”

NB ex rel. Peacock v. District of Columbia,

(D.C. Cir. 2015) (internal quotation

marks and citation omitted); see also Carolina Youth Action Project v. Wilson,

(4th Cir. 2023) (explaining that the “void-for-vagueness doctrine” is a “component of due process”

and “bars a state from taking away life, liberty, or property under a law that fails to ‘give a person

of ordinary intelligence adequate notice of what conduct is prohibited’ or lacks ‘sufficient

37 standards to prevent arbitrary and discriminatory enforcement’” (citation omitted)); Karem,

(explaining that the “protection of fair notice” applies when the plaintiff’s interest in

“a White House press pass . . . undoubtedly qualifies as a protected liberty interest” (citation omit-

ted and cleaned up)). In Defendants’ view, Plaintiffs fail to identify a constitutionally protected

interest because the contracts and grants they worry about are not the kind that create a “legitimate

claim of entitlement” to the benefit—i.e., not the kind that provide a protected property interest.

ECF No. 38 at 28–29 (citation omitted). That is because “courts have resisted” applying “due-

process principles to government contracts” outside “the employment context.” New Vision Pho-

tography Program, Inc. v. District of Columbia,

(D.D.C. 2014); see also

Redondo-Borges v. HUD,

(1st Cir. 2005) (“We have held with a regularity border-

ing on the echolalic that a simple breach of contract”—including the revocation of a “bid award”—

does not amount to an unconstitutional deprivation of property.”).

Plaintiffs hardly address this point in reply, offering two halfhearted efforts to show that

the Challenged Provisions implicate a protected interest that would support a due-process claim.

They start by pointing to the now-stayed decision in Diversity Officers, which found in a footnote

that the plaintiffs there had cleared this hurdle. See

, at *20 n.10. The Court

respectfully finds unconvincing whatever persuasive force this analysis might retain after the

Fourth Circuit’s stay. The Diversity Officers court accepted the plaintiffs’ argument without ex-

planation—and with nothing but a citation to Board of Regents of State Colleges v. Roth,

(1972). Neither that court nor Plaintiffs here, however, explain how the vulnerable contracts

and grants are like “welfare benefits under statutory and administrative standards” or “public em-

ployment” subject to “tenure provisions.” Roth, 408 U.S. at 576–77. Put another way, Plaintiffs

offer no reason to think that their contracts and grants—which are “[o]utside of the employment

38 context”—are different from the “millions of government contracts in effect at any point in time”

to which courts seldom apply “due-process principles.” New Vision Photography,

(citation omitted). And “‘ordinary’ or ‘routine’ government contracts do not, by themselves,

give rise to . . . an interest” that due process protects. Gizzo v. Ben-Habib,

(S.D.N.Y. 2014). A different rule would “risk . . . transmogrifying virtually every dispute involv-

ing an alleged breach of contract by” the government “into a constitutional case.” Redondo-Bor-

ges,

. For their part, Plaintiffs barely contend that they do have a protected property

interest; they say only that they “could have a property interest in their grants and contracts.” ECF

No. 44 at 18 (emphasis added). That kind of speculation, stripped of specifics, is not enough to

carry their burden at the preliminary-injunction stage.

Plaintiffs next argue that they have a liberty interest “in being free from government action

that causes reputational harms” that “can occur when the government terminates work with a con-

tractor or grantee.” ECF No. 44 at 18. Without elaborating on how these provisions implicate

such an interest, Plaintiffs cite one case that just shows why their argument falters. In Reeve Aleu-

tian Airways, Inc. v. United States, a government review board suspended the plaintiff “from the

military airlift transportation program.”

(D.C. Cir. 1993). The government did

“not deny” that the plaintiff had “a liberty interest in avoiding the damage to its reputation and

business caused by a stigmatizing suspension.”

. And the D.C. Circuit agreed because

“branding an airline unsafe creates a lasting blemish on a company’s reputation”—a sensible in-

tuition confirmed by the plaintiff’s evidence that it “lost over $20,000 a day in military business”

and half “its civilian traffic.”

But Plaintiffs never explain how the actual (or potential) can-

celation of their contracts or grants is anything like that stigmatizing, safety-based suspension,

which was “the equivalent to Hawthorne’s scarlet letter pinned across the heart of Hester Prynne.”

39

Nor have they shown that the government has “effectively bar[red]” them “from virtually all

Government work due to charges that the[y],” as “contractor[s],” “lack[] honesty or integrity.”

New Vision Photography,

(describing the requirements of the “reputation-

plus test” for establishing a “protected liberty interest”) (citation omitted).

More to the point given the facial posture here, Plaintiffs have not come close to showing

that most applications of the remaining Challenged Provisions will implicate protected property or

liberty interests. Indeed, they have not really tried to. All they say is that “a protected liberty

interest . . . can” flow from terminated contracts or grants. ECF No. 44 at 18 (emphasis added).

But they never explain how terminations under the Challenged Provisions would implicate that

interest for Plaintiffs or anyone else. See

And without a showing that the Certification Provi-

sion, Equity Termination Provision, or Promoting Gender Ideology Provision does so, Plaintiffs’

facial vagueness claim—rooted in due process—falters at the start.

That problem aside, others persist and prevent Plaintiffs from making the required likeli-

hood-of-success showing. Consider first the Equity Termination Provision and Promoting Gender

Ideology Provision. Plaintiffs skew these provisions by claiming that they “proscribe” and “for-

bid” certain views. ECF No. 29-1 at 23, 28. Far from it—at least on their face. These provisions

require nothing of Plaintiffs, nor do they prohibit them from doing anything. Rather, the provisions

regulate the President’s subordinates. The Equity Termination Provision directs agencies to “ter-

minate, to the maximum extent allowed by law,” equity-related grants and contracts. Government

DEI Order § 2(b)(i). And the Promoting Gender Ideology Provision requires something similar

for gender ideology: agencies must “ensure grant funds do not promote” it. Gender Ideology Order

§ 3(g). In this way, neither provision directly “regulate[s]” Plaintiffs by “forbid[ding] or re-

quir[ing]” any “conduct.” Karem,

. Because Plaintiffs are not “those to whom”

40 the provisions are “directed,” the “fair notice” aspect of the vagueness doctrine is a poor fit. Cf.

Am. Commc’ns Ass’n v. Douds,

(1950).

Nor are these provisions constitutionally problematic under the arbitrary-enforcement path.

On this front, “speculation about possible vagueness in hypothetical situations not before the Court

will not support a facial attack” when the provisions are “valid in the vast majority of [their] in-

tended applications.” Hill,

(citation omitted). And presidential directives to sub-

ordinates are yet again a square peg for a round hole here. Typically, this strand of vagueness

doctrine is concerned about “law enforcement authorities” lacking “adequate guidance.”

(em-

phasis added); see also, e.g., Act Now to Stop War & End Racism Coal. & Muslim Am. Soc’y

Freedom Found. v. District of Columbia,

(D.C. Cir. 2017) (law is “void for

vagueness” when “it fails to set reasonably clear guidelines for law enforcement officials and triers

of fact in order to prevent arbitrary and discriminatory enforcement” (internal quotation marks and

citation omitted)). So courts have “greater tolerance” for “enactments with civil rather than crim-

inal penalties because the consequences of imprecision are qualitatively less” serious. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

, 498–99 (1982). On top of that,

the “Constitution tolerates” even more ambiguity here because the Equity Termination Provision

and Promoting Gender Ideology Provision just tell agencies to stop funding certain things or con-

tracting in certain ways.

(“economic regulation is subject to a less strict vagueness test”).

Indeed, “when the Government is acting as patron rather than as sovereign,” the effects “of impre-

cision are not constitutionally severe.” Nat’l Endowment for the Arts v. Finley,

(1998). That remains true when the funding regulation implicates speech. See

(statute not

unconstitutionally vague even though “artists,” “as a practical matter,” “may conform their speech

to what they believe to be the decisionmaking criteria in order to acquire funding”).

41 Against that backdrop, these two provisions give enough guidance to avoid constitutional

infirmity—and for the same reasons satisfy any fair-notice concerns. Agencies must, under the

Equity Termination Provision, terminate equity-related contracts as permitted by law. Might the

exact scope of the equity-related qualifier “vary depending upon whom you ask”? United States

v. Robertson,

, 122 (D.D.C. 2022). Maybe, but a “vagueness challenge will

fail” in that situation so long as the regulation provides a “comprehensible normative standard,”

even if “imprecise.”

(citation omitted). Whether a grant relates to equity might “sometimes be

difficult to determine.” Williams,

. A statute is vague, though, not when that

determination is hard, but when there is “indeterminacy” as to “precisely what th[e] fact is” that

triggers the provision. Id.; see also Act Now,

(“Ostensible vagueness about

whether the incriminating fact has been proved is not vagueness at all.” (citation omitted and

cleaned up)). Nor is it enough to say that an agency might “exercise[] [its] discretion unlawfully”

under this provision. Act Now,

(citation and brackets omitted). The question is

instead whether “anything in the” provision “prevent[s]” the agency “from doing so.”

(citation

omitted). And the Equity Termination Provision meets that standard on its face; it tells agencies

to cancel equity-related agreements in accordance with the law, not whenever they see fit.

For mostly the same reasons, the Promoting Gender Ideology Provision likely poses no

fair-notice or arbitrary-enforcement problems either. The executive order defines “gender ideol-

ogy,” see Gender Ideology Order § 2(f), so Plaintiffs target the word “promote” instead, see ECF

No. 29-1 at 28–29. Pointing to United States v. Williams, they say that “promotes” is “susceptible

of multiple and wide-ranging meanings.” Id. at 28 (quoting

). Williams, though,

described “promotes” that way when addressing an overbreadth challenge, and the decision never

mentioned the word when discussing the respondent’s vagueness argument. See 553 U.S. at 304–

42 307. In any event, a regulation can be “broad” and “reach[] a wide range of . . . actions” without

being “vague.” United States v. Andries, No. 21-cr-93 (RC),

, at *9 (D.D.C. Mar.

14, 2022). And that describes the Promoting Gender Ideology Provision. To “promote” something

is to “contribute to [its] growth or prosperity.” Promote, Merriam-Webster 2.a, https://www.mer-

riam-webster.com/dictionary/promote (last visited May 1, 2025); see also Promote, Oxford Eng-

lish Dictionary I.2.a, https://www.oed.com/dictionary/promote_v?tl=true&tab=meaning_and_use

(last visited May 1, 2025) (“To further the growth, development, progress, or establishment of (a

thing).”). And the executive order, as explained, defines the thing that federal funding shall not

promote: gender ideology. That there might be “close cases” of whether some activity “promotes”

gender ideology is not a vagueness problem; such tight calls “can be imagined under virtually any

statute” or regulation. Williams,

. Especially under the relaxed vagueness standard

for funding regulations, the Promoting Gender Ideology Provision and the Equity Termination

Provision are likely not impermissibly vague—even putting aside the threshold problem that Plain-

tiffs have not identified a protected liberty or property interest that they jeopardize.

The Certification Provision likely survives vagueness scrutiny too. Plaintiffs raise the same

argument about that provision’s use of the verb “promotes,” and it founders for the reasons dis-

cussed above. In fact, the Certification Provision is even clearer. Under that provision, counter-

parties and grant recipients must certify that they “do not operate any programs promoting DEI

that violate any applicable Federal anti-discrimination laws.” Illegal Discrimination Order

§ 3(b)(iv)(B). So the “incriminating fact” is straightforward: is the counterparty violating federal

antidiscrimination law? Williams,

. That is a “true-or-false determination,” and

any difficulty in determining whether that fact “has been proved” in a case does not render the

provision unconstitutionally vague.

Nor do Plaintiffs move the needle with their claim that

43 the executive order classifies all DEI as illegal by using the phrase “illegal DEI and DEIA poli-

cies.” ECF No. 29-1 at 26. That reading is strained; a school that prohibits students from using

“illegal drugs” on campus is targeting a subset of drugs (the illegal ones) rather than banning Advil

or lawful prescriptions. 9 And more to the point, Plaintiffs continue to focus on the difficulty of

proving the “incriminating fact”—whether a DEI program violates federal antidiscrimination

law—rather than “indeterminacy of precisely what the fact is.” Williams,

. But

the latter is the touchstone of vagueness. So Plaintiffs have not carried their heavy burden of

showing that the Certification Provision is facially unconstitutional. 10

In sum, Plaintiffs have failed to show that they are likely to succeed on their due-process

challenge to the provisions for which they likely have standing. They have not identified a pro-

tected property or liberty interest that these provisions threaten. Nor have they shown that the fair-

9 Plaintiffs also repeatedly contend that the Attorney General views the “Orders as making clear that policies relating to” DEI “violate the text and spirit of our longstanding Federal civil- rights laws.” ECF No. 44 at 16 (internal quotation marks and citation omitted). So, Plaintiffs say, there is no “subset” of DEI that is “supposedly lawful” under the executive orders.

That over- states the Attorney General’s memo. For one thing, that memo addressed only the Illegal Discrim- ination Order. See Off. of the Att’y Gen., Dep’t of Just., Ending Illegal DEI and DEIA Discrimi- nation and Preferences (Feb. 5, 2025), https://www.justice.gov/ag/media/1388501/dl?inline. For another, the surrounding context clarifies a focus on DEI “preferences, mandates, policies, pro- grams, and activities” that are “illegal.” Id. at 1. The header of the first section is titled “Ending Illegal DEI and DEIA Discrimination and Preferences.” Id. This section describes the executive order’s mandate to create a report addressing how to “encourage the private sector to end illegal discrimination.” Id. (emphasis added). And the memo also distinguishes between “policies that discriminate, exclude, or divide individuals based on race or sex” on the one hand, and “obser- vances” that “celebrate diversity” and “promote awareness without engaging in exclusion or dis- crimination” on the other. See id. at 1 n.1. In any event, the Court will not read one snippet of this memo to override the text of the executive orders for purposes of Plaintiffs’ facial challenge. 10 Plaintiffs briefly contend in their due-process argument that the “executive orders’ vagueness chills protected speech.” ECF No. 29-1 at 32–33. True enough, the vagueness inquiry becomes more rigorous in the First Amendment context. But at its core, the vagueness doctrine is still about due process—specifically, fair notice and evenhanded enforcement. The Court has ac- counted for the First Amendment concerns when analyzing Plaintiffs’ due-process claim. But it addresses their chilling-effect argument within the First Amendment framework.

44 notice and arbitrary-enforcement concerns underlying the vagueness doctrine likely render these

provisions unconstitutional, particularly because the provisions address how the government funds

and contracts with entities rather than when it imposes civil or criminal liability.

3. Plaintiffs Fail to Show that They Are Likely to Succeed on Their First Amendment Claim

Plaintiffs also argue that the Challenged Provisions violate the First Amendment’s free-

speech guarantee. As a reminder, only four provisions remain live for this challenge: the Certifi-

cation Provision, the Equity Termination Provision, the Gender Funding Termination Provision,

and the Promoting Gender Ideology Provision. Of those, Plaintiffs say the Certification Provision

amounts to unlawful viewpoint discrimination. See ECF No. 29-1 at 34–37. And all four provi-

sions, Plaintiffs add, “chill speech by penalizing disfavored views.” Id. at 38; see also id. at 37–

47.

The First Amendment prohibits governments from “abridging the freedom of speech.”

Reed v. Town of Gilbert,

(2015) (quoting U.S. Const. amend. I). Sometimes

that right requires the government to “accommodate expression.” Ysursa v. Pocatello Educ. Ass’n,

(2009). But the Supreme Court has “reject[ed] the notion that First Amendment

rights are somehow not fully realized unless they are subsidized by the State.” Regan v. Tax’n

with Representation of Wash.,

(1983) (internal quotation marks and citation

omitted). Put slightly differently, “even where the Constitution prohibits coercive governmental

interference with specific individual rights, it does not confer an entitlement to such funds as may

be necessary to realize all the advantages of that freedom.” Lyng v. UAW,

(1988) (internal quotation marks and citations omitted). That is why the “refusal to fund protected

activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.”

United States v. Am. Libr. Ass’n, Inc.,

(2003) (plurality opinion) (quoting Rust

45 v. Sullivan,

(1991)). And for that reason, the typical “recourse” for a “party”

that “objects to a condition on the receipt of federal funding” is “to decline the funds.” Agency for

Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

(2013). 11 At the same time, though,

“a funding condition can result in an unconstitutional burden on First Amendment rights.”

That “line is hardly clear.”

. But the key consideration—or at least one of them—is

whether the condition “specif[ies] the activities” the government “wants to subsidize” or if it

“seek[s] to leverage funding to regulate speech outside the contours of the program itself.”

at

214–15 (emphasis added).

Plaintiffs bring only a facial First Amendment challenge, and that choice dictates how

much constitutional invalidity they must show. Ordinarily, a facial claim fails unless the plaintiff

shows “that no set of circumstances exists under which the [law] would be valid” or “that the law

lacks a ‘plainly legitimate sweep.’” Moody,

(quoting United States v. Salerno,

(1987)). But that “very high bar” is lower in “First Amendment cases.”

“[F]ree expression” needs “breathing room,” so in this context Plaintiffs may prevail on their facial

claim by showing that “a substantial number of” the Challenged Provisions’ “applications are un-

constitutional, judged in relation to [their] plainly legitimate sweep.”

(quoting Ams. for Pros-

perity Found. v. Bonta,

(2021)). That translates to an inquiry that first assesses

the scope of the Challenged Provisions—i.e., “[w]hat activities, by what actors,” do they

11 Plaintiffs do not press a claim under the Constitution’s Spending Clause in their motion. Under that clause, Congress has “broad discretion to,” among other things, “fund[] particular state or private programs or activities.” Agency for Int’l Dev.,

. But Plaintiffs do not argue, for example, that the “challenged provisions of the Executive Orders” violate the Spending Clause by “plac[ing] significant conditions on federal funding that Congress did not prescribe.” PFLAG, Inc. v. Trump, No. 25-cv-337 (BAH),

, at *1 (D. Md. Mar. 4, 2025). Nor do they explain whether or how the inquiry under Agency for International Development changes because the funding decisions flow from the Executive rather than Legislative Branch.

46 “regulate”?—and then analyzes which “applications violate the First Amendment” before

“measur[ing]” those “against the rest.”

at 724–25. This standard remains “rigorous.” Id. at

723. Facial invalidation “destroys some good along with the bad,” so it is justified only when the

“unconstitutional applications” are “realistic” rather than “fanciful.” Hansen,

.

And those impermissible applications “must be substantially disproportionate to” the lawful ones

because only a “lopsided ratio” warrants this “strong medicine.”

(citation omitted).

Begin with the Equity Termination, Promoting Gender Ideology, and Gender Funding Ter-

mination Provisions, which move together within the First Amendment analysis. By their terms,

these provisions tell agencies what to do with federal funds and contracts. Under the first, agencies

must terminate equity-related grants and contracts in accordance with the law. See Government

DEI Order § 2(b)(i). And the latter two target the federal funding of gender ideology. Gender

Ideology Order § 3(e), (g). These provisions, then, do not reach beyond the scope of the grant or

fund at issue. The directives do not tell agencies to cancel contracts with entities doing equity-

related work outside their contracts or to ensure that federal funds do not support grantees promot-

ing gender ideology with non-federal funds. In this way, the provisions do not “prohibit[] the

recipient from engaging in the protected conduct outside the scope of the federally funded pro-

gram” or contract. Agency for Int’l Dev.,

(quoting Rust,

). The

provisions, in other words, are part of a government effort “to fund one activity to the exclusion

of another”—or to contract for certain purposes to the exclusion of others—which does not amount

to “discriminat[ion] on the basis of viewpoint.” Rust,

. That result follows from

the principle that “refus[ing] to fund protected activity, without more,” does not “penal[ize]” the

“activity.” Am. Libr. Ass’n,

(plurality opinion) (citation omitted).

Because these provisions do not on their face restrict speech outside the scope of the federal

47 funds or contract, they do “not run afoul of the First Amendment.” Agency for Int’l Dev.,

. Or more specifically, most of their applications will not. Consider an entity that receives

four federal grants. It uses one to fund a program advancing the idea that transgender women

should be able to participate in women’s sports. The other three grants, though, support projects

far afield from transgender rights or gender ideology more generally. Directed to “end the Federal

funding of gender ideology” as “permitted by law” and ensure that such funds do not “promote

gender ideology,” an agency would presumably terminate the first grant or tell the recipient that it

will do so unless the recipient stops using the funds for that purpose. Gender Ideology Order

§ 3(e), (g). But because the other grants are not advancing gender ideology in any way, the gender-

ideology provisions are no basis—at least in most of their applications—to cut those grants. Said

another way, because the provisions do not “effectively prohibit[]” or otherwise restrict “the re-

cipient from engaging in the protected conduct outside the scope of the federal[] fund[s],” they do

not “place[]” a constitutionally problematic “condition on the recipient of the subsidy.” Rust,

. And the same result holds for the Equity Termination Provision: its text does not say

that a contractor with four contracts, only one of which is equity-related, will lose the other three

by advocating for equity principles outside the scope of those contracts.

Now to the other side of the ledger. Plaintiffs must make two showings about the uncon-

stitutional applications of these funding-focused provisions: those applications are “realistic” ra-

ther than “fanciful,” and “their number” is “substantially disproportionate to [their] lawful sweep.”

Hansen,

. But Plaintiffs do not clearly describe what those applications look like.

The bulk of their First Amendment challenge focuses on the Certification Provision—which the

Court discusses below—and the Report and List Provisions—which Plaintiffs likely lack standing

to challenge. See ECF No. 29-1 at 34–37, 41–44. True, Plaintiffs say that the Equity Termination

48 Provision and gender-ideology provisions (and others) “make clear that the Administration will

cut federal funding to organizations that engage in protected speech that the government opposes.”

Id. at 38. That message, Plaintiffs contend, impermissibly chills speech. See id. at 38–41. But

this argument just invites the question: when is the government allowed to fund some things (or

contract for some purposes) instead of others? And as explained, Plaintiffs’ desire to speak about

certain topics with the government’s help does not mean that “refus[ing] to fund such activities”

denies Plaintiffs “the right to engage” in that protected activity. Rust,

.

Plaintiffs’ rejoinders are unpersuasive. Because the government is not constitutionally ob-

ligated to fund Plaintiffs’ preferred speech or to contract with them for certain purposes, the deci-

sion to stop funding that speech or contracting for those ends is not an example of the government

doing “indirectly what” it “is barred from doing directly.” Nat’l Rifle Ass’n of Am. v. Vullo,

, 190 (2024). Nor do the Challenged Provisions operate like the laws in the other cases

that Plaintiffs cite for the idea that the government cannot use indirect “mechanisms” to “suppress

the views of private actors.” ECF No. 29-1 at 38. The throughline of those cases was compelled

disclosure of beliefs or associations. See Baird v. State Bar of Ariz.,

, 2–3 (1971) (plu-

rality opinion) (invalidating rule under which applicants were denied admission to the state bar

after refusing to disclose certain associations and personal beliefs); Keyishian v. Bd. of Regents of

Univ. of State of N.Y.,

, 592–93 (1967) (analyzing “state program” under which state

employees were dismissed after refusing to disclose existence of ties to Communism and other

“subversive” organizations or groups); Lamont v. Postmaster Gen. of the U.S.,

(1965) (holding unconstitutional a statute limiting “the unfettered exercise of . . . First Amend-

ment rights” because it required recipients of mail containing “communist political propaganda”

to return a “reply card” to prevent the mail’s destruction); Baggett v. Bullitt,

, 361–

49 62, 367, 371 (1964) (invalidating statute requiring state employees to “swear that” they are “not a

subversive person” and also, on vagueness grounds, a statute requiring state-licensed teachers to

promise to “promote respect for the flag and the institutions of the United States”); NAACP v.

Alabama ex rel. Patterson,

(1958) (reversing judgment of civil contempt be-

cause the state failed to justify the “deterrent effect on the free enjoyment of the right to associate

which disclosure of membership lists is likely to have”).

By contrast, the Equity Termination Provision and gender-ideology provisions do not on

their face “requir[e]” Plaintiffs “to profess a specific belief” or disclose anything. Agency for Int’l

Dev.,

. They just tell agencies to cut some kinds of funding and cancel certain

contracts as permitted by law. And because the Supreme Court has “reject[ed] the ‘notion that

First Amendment rights are somehow not fully realized unless they are subsidized by the State,’”

Regan,

(citation omitted), any chill that Plaintiffs feel from these provisions is not

the sort that can support a First Amendment claim.

Between their briefing and oral argument, Plaintiffs point to two examples that they say

show that the funding-focused provisions reach beyond the scope of the federal funds and con-

tracts. In a meeting with an “HHS contractor” in mid-February, the “program officer” told the

AIDS Foundation that “the term ‘gender’ must be replaced with ‘sex’ in . . . program materials.”

ECF No. 29-9 (“Peller Decl.”) ¶ 11; see also ECF No. 29-1 at 21. That officer also said that the

materials must no longer contain “reference to ‘gender-affirming’ care,” and that “LBG” must

replace the acronym “LBGTQIA.” Peller Decl. ¶ 11. At the hearing, however, Plaintiffs asserted

that HRSA told the AIDS Foundation at this meeting “to remove words not just in federally funded

programs, but on all their publications.” Hearing Tr. at 21. The supporting declaration is ambig-

uous on that front; it describes a meeting “about a program under which [the AIDS Foundation]

50 is a subcontractor,” suggesting that the directive focused on that federal program. Peller Decl.

¶ 11. But even if HRSA did tell the AIDS Foundation to alter its materials outside the scope of

federally funded programs, this example hardly shows that the “unconstitutional applications” of

these provisions “substantially outweigh [their] constitutional ones.” Moody,

. At

most, an HRSA representative aggressively—and incorrectly—interpreted the gender-ideology

provisions to say that recipients of federal funds cannot promote gender ideology, no matter

whether they use federal funds to do so. But that does not establish the “lopsided ratio” justifying

the “strong medicine” of facial invalidation. Hansen,

(citation omitted).

Nor does the example of HUD “cancel[ing] funding” for one of the Housing Alliance’s

“partner organizations.” ECF No. 44 at 12–13. According to Plaintiffs, HUD invoked the Gov-

ernment DEI Order—presumably, the Equity Termination Provision—to terminate the grant

“based on ‘key words’ in [the] organization’s ‘website or Linked Profile.’” Id. at 21 (citation

omitted). So, Plaintiffs reason, that provision reaches speech “both inside and outside of the fed-

eral government”—i.e., “purely private speech” untethered to federal grants or contracts. Id. But

this example, even taken together with the HRSA directive to the AIDS Foundation, is too slender

a reed to support facial invalidation. To start, while the cover email from HUD references “key

words,” ECF No. 44-8, the termination notice itself explains that the partner organization’s “oper-

ations and performance in connection with the subject awards” did not comply with the Govern-

ment DEI Order, ECF No. 44-9 at 1 (emphasis added). So it is unclear whether HUD terminated

the awards because of the organization’s conduct outside the scope of the awards or because its

conduct under the awards made them “equity-related.” But even if the former, this example re-

mains at best just a second instance of an agency going beyond the text of a Challenged Provision.

After all, the Equity Termination Provision says nothing about whether the grant recipient’s

51 activities are equity-related; it asks whether the grant is equity-related. So conduct beyond the

scope of the federal funding should, under the provision’s plain text, not warrant termination. And

Plaintiffs “may not leverag[e] a few alleged unconstitutional applications” of these provisions

“into a ruling invalidating [them] in all [their] applications.” Schickel v. Dilger,

(6th Cir. 2019) (internal quotation marks and citation omitted).

To sum up, the text of these three provisions points to a heartland of constitutional appli-

cations. And on this record, Plaintiffs have not shown that “unconstitutional applications substan-

tially outweigh” their “plainly legitimate sweep.” Moody, 603 U.S. at 723–24.

The Certification Provision is not facially invalid either despite Plaintiffs’ three-pronged

attack on it. First, they claim that it “imposes unconstitutional funding conditions based on view-

point.” ECF No. 29-1 at 36–37. Next, Plaintiffs say that this provision, like the others, chills

protected speech. See

at 37–41. And finally, they add that it “further penalizes disfavored

views under the False Claims Act.”

at 41–42.

As Defendants acknowledge, the Certification Provision does cover conduct “outside the

scope of” federal grants and funds. Agency for Int’l Dev.,

; see Hearing Tr. at 40.

It requires grant recipients and contractual counterparties to certify that they do “not operate any

programs”—rather than just federally funded ones—“promoting DEI that violate” federal anti-

discrimination law. Illegal Discrimination Order § 3(b)(iv)(B) (emphasis added). So Plaintiffs

have cleared a hurdle here that they did not for the other provisions.

But that victory is partial and short-lived. For the Certification Provision to violate the

First Amendment, Plaintiffs must show that the certification requirement impermissibly restricts

their ability to engage in protected speech. Yet neither Plaintiffs nor anyone else have a First

Amendment right to violate federal antidiscrimination law. To the contrary, “the Supreme Court

52 has clearly held that the First Amendment does not protect the very act of discriminating on the

basis of race.” Am. All. for Equal Rights v. Fearless Fund Mgmt., LLC,

(11th

Cir. 2024). More generally, the right to speak freely provides no shield for “private individuals or

institutions” that “engage in discrimination” that violates federal law. Grove City Coll. v. Bell,

, 702 (3d Cir. 1982). So Plaintiffs cannot “assert an alleged first amendment right to

be free of the strictures of” federal antidiscrimination law “and also claim the right to continued

federal funding” and contracts. Id. That is why, for example, prison officials cannot claim that

the government “impose[s] conditions that restrict[] [their] ability to exercise” their “First Amend-

ment right to free speech” when the officials seek to unlawfully “limit the exercise of religion by

inmates.” Cutter v. Wilkinson,

(6th Cir. 2005). The reason is straightforward:

there is “no constitutional right” to do that,

just like there is no constitutional right to operate

DEI programs that violate federal antidiscrimination law.

Resisting that conclusion, Plaintiffs insist that the Certification Provision does not really

mean what it says. On their reading, the provision “purports to make organizations that ‘promot[e]

DEI’ ineligible for government contracts and grants.” ECF No. 29-1 at 39. But Plaintiffs offer no

reason to disregard the Certification Provision’s text for their preferred reading. On its face, all

the provision requires is a certification that the grant recipient or contractual counterparty will not

violate the federal antidiscrimination laws that they had to comply with long before President

Trump issued the executive orders. It does not “purport to establish the illegality of all efforts to

advance [DEI],” and it “should not be so understood.” Nat’l Ass’n of Diversity Officers, No. 25-

1189, Dkt. No. 29 at 7 (Harris, J., concurring). And according to Plaintiffs, they “do not engage

in any unlawful discrimination.” ECF No. 44 at 24. If Plaintiffs worry that this administration

takes a broader view of what counts as illegal discrimination, that is a concern with the

53 interpretation of the underlying federal antidiscrimination law—which Plaintiffs do not chal-

lenge—rather than the Certification Provision. True, the provision incorporates that federal law.

But Plaintiffs may contest whether their DEI programs fall within the scope of that law if they ever

face an enforcement action connected to the Certification Provision. The text of the Certification

Provision limits it to constitutional applications, and Plaintiffs’ fear that Defendants will warp that

text is no substitute for establishing a “lopsided ratio” of unconstitutional ones. Hansen,

.

Plaintiffs’ second argument about the Certification Provision falters for reasons already

discussed. A provision requiring counterparties to certify that they do not violate federal laws that

they are otherwise obligated to comply with does not chill protected speech. Again, the First

Amendment does not give Plaintiffs a right to disregard federal antidiscrimination law. And their

real concern is with the Executive Branch’s interpretation of antidiscrimination law, not with the

Certification Provision. After all, if the Certification Provision did not exist, Plaintiffs would still

be subject to that federal law. Yet Plaintiffs cite no case—and the Court has found none—sug-

gesting that the fear of liability for violating federal antidiscrimination law supports a chilling-

effect claim under the First Amendment. See Vullo, 602 U.S. at 198 (First Amendment does not

“give[] advocacy groups . . . a right to absolute immunity from government investigation, or a right

to disregard state or federal laws” (internal quotation marks, citation, and brackets omitted)). To

reiterate: if Plaintiffs believe that the Executive Branch has wrongly interpreted federal antidis-

crimination law, they can challenge that interpretation in a specific enforcement action. But Plain-

tiffs have not carried their burden of showing that the Court should presume that Defendants will,

in most cases, apply the Certification Provision in a way that violates the First Amendment.

Nor does Plaintiffs’ reliance on the materiality provision salvage their claim. Recall that

54 the Certification Provision directs agencies to include in contracts and grants a “term requiring”

agreement that “compliance . . . with all applicable Federal anti-discrimination laws is material to

the government’s payment decisions for purposes of” the False Claims Act. Illegal Discrimination

Order § 3(b)(iv)(A). In simpler terms: if someone knowingly makes a false statement about their

compliance with federal antidiscrimination law, the Certification Provision seems to increase the

risk of False Claims Act liability. See

(a)(1)(B). But this is not a case of the

government “relying on the threat of invoking legal sanctions” to “achieve the suppression of dis-

favored speech.” Vullo, 602 U.S. at 189 (internal quotation marks and citation omitted). To repeat,

the Certification Provision addresses only DEI programs that violate federal antidiscrimination

law, and Plaintiffs have no First Amendment right to operate such programs. A different rule

would mean that the federal antidiscrimination laws themselves breach the First Amendment by

threatening liability for unlawful discrimination. But as explained, that is not the law. The False

Claims Act, moreover, does not create liability for good-faith but mistaken beliefs that DEI pro-

grams comply with federal law. The statute’s scienter requirement “refers to” the person’s

“knowledge and subjective beliefs.” United States ex rel. Schutte v. SuperValu Inc.,

,

749 (2023). And that “requirement helps to ensure that innocent mistakes made in the absence of

binding interpretive guidance are not converted into FCA liability.” United States ex rel. Purcell

v. MWI Corp.,

(D.C. Cir. 2015); see also

(FCA does not “reach those

claims made based on reasonable but erroneous interpretations of a defendant’s legal obligations”).

So Plaintiffs have overstated the First Amendment implications of this aspect of the Certification

Provision.

The temporary restraining order that a court in the Northern District of Illinois recently

issued does not change the Court’s analysis. In CWIT I, the court found that the plaintiff was likely

55 to succeed on the merits of its First Amendment challenge to the Equity Termination Provision

and Certification Provision. Starting with the former, the court held that the provision “is reason-

ably understood to be a coercive threat.” CWIT I,

, at *6 (citation omitted). But

Plaintiffs here never argue that a directive for agencies to cancel certain contracts and grants—as

permitted by law—amounts to a coercive threat under the First Amendment. For good reason.

Vullo, the case relied on in CWIT I, addressed the “framework for claims that the government has

coerced a third party to violate the First Amendment rights of another.” Vullo, 602 U.S. at 191.

Sensibly so, because the unconstitutional action there involved a government official “coercing”

specific “entities to terminate their business relationships with” an organization “to punish or sup-

press” that organization’s “advocacy.” Id. at 198. But this First Amendment concern has little

bearing on government funding decisions, especially since the Supreme Court has repeatedly held

that the government’s “decision not to subsidize the exercise of a fundamental right does not in-

fringe the right.” Rust,

(quoting Regan,

). That is why the court

reconsidered this aspect of its holding and found that the Equity Termination Provision does not

likely violate the First Amendment. See CWIT II,

, at *12–13. This provision,

in short, tells agencies to cancel certain contracts and grants. And it does not purport to regulate

private entities—say, by forbidding them from speaking about equity outside the scope of the

grants or contracts. See Nat’l Ass’n of Diversity Officers, No. 25-1189, Dkt. No. 29 at 7 (Harris,

J., concurring) (explaining that the Equity Termination Provision “directs the termination of grants,

subject to applicable legal limits, based only on the nature of the grant-funded activity itself”).

The Court also agrees with CWIT II’s analysis of potential “vagueness concerns” with the

Equity Termination Provision. See CWIT II,

, at *14. On its face, this provision

“involves the government engaging in funding,” not “regulating.”

As a “funder,” then, the

56 government has wiggle room under Finley that it might not have in the context of “criminal or

regulatory proscriptions.”

Although “citizens cannot simply opt out of” those prohibitions,

they can “decline federal funding” if they dislike how the government’s policy preferences influ-

ence funding decisions.

The Court respectfully disagrees, though, with the holding that the Certification Provision

likely violates the First Amendment. In so finding, the CWIT court faulted the provision (and the

government) for not clarifying “what might make any given ‘DEI’ program violate Federal anti-

discrimination laws.” CWIT I,

, at *8; CWIT II,

, at *11–12.

But again, if the First Amendment required the government to preemptively identify programs that

violate antidiscrimination law outside of concrete enforcement actions, then federal antidiscrimi-

nation law itself would collide with the First Amendment. Yet no one makes that claim. And it is

just not true that the Certification Provision on its face requires “grantees” to eliminate all pro-

grams “promot[ing] DEI.” CWIT I,

, at *8; CWIT II,

, at *11.

That is not to say, of course, that grantees could not challenge the government’s interpretation of

what counts as “illegal” DEI in a specific case. But the government does not violate the First

Amendment by incorporating preexisting federal law into an executive order and declining to de-

tail hypothetical examples of things that might violate that law.

In sum, Plaintiffs are not likely to show that the Certification Provision, Equity Termina-

tion Provision, Promoting Gender Ideology Provision, or Gender Funding Termination Provision

violates the First Amendment—either individually or collectively. On the latter point, Plaintiffs

have not articulated how the provisions, “taken together,” create a “profound” chilling effect on

their protected speech. ECF No. 44 at 24. Just saying so is not enough to show that they are

entitled to the “extraordinary relief of a preliminary injunction.” Alpine Secs. Corp. v. Fin. Indus.

57 Reg. Auth.,

(D.C. Cir. 2024). And the Court does not see how the provisions

would operate synergistically to violate the First Amendment given the shortcomings of Plaintiffs’

arguments as to each specific provision. For all these reasons, then, Plaintiffs are not likely to

succeed on the merits of their First Amendment claim.

* * *

For one reason or another, Plaintiffs’ claims are likely to fail. Some falter on standing—a

prerequisite to success on the merits—and others on the underlying First and Fifth Amendment

claims. In reaching that conclusion, as the Fourth Circuit did in Diversity Officers, the Court re-

serves judgment on the merits of any as-applied challenges to specific enforcement actions that

Defendants may initiate. But Plaintiffs’ failure to show “a likelihood of success on the merits” on

the facial claims they do press here is reason enough to “deny [their] motion for [a] preliminary

injunction.” Williams v. Walsh,

, 62 (D.D.C. 2022) (citation omitted).

IV. Conclusion

For all the above reasons, the Court will deny Plaintiffs’ Motion for Preliminary Injunction.

A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: May 2, 2025

58