Challenging EOs

Genevieve Lakier's guest post at Balkinization criticizes the Fourth Circuit stay of an injunction barring enforcement of Trump's anti-DEI executive order. She argues that the Fourth Circuit treated the EO as government speech, a broad statement of government policy, ignoring its legal force and immediacy. Demanding that challenges wait until agencies enact regulations implementing the EO prolongs its chilling effect.

Trump's penchant for EOs creates some puzzles for constitutional litigation.

1) When is something sufficiently enforceable as to allow litigation? Had Trump urged--at the State of the Union or in a letter to congressional leadership or some other public message--Congress to enact identical anti-DEI legislation, no one can bring suit until Congress enacts (and Trump signs) the legislation. Had Trump given a speech--but no signed EO--ordering executive agencies to enact identical anti-DEI policies, no one can challenge anything until the agencies act. So what is it about the EO that makes it different and challengeable when neither of the other two do not? Is it the president's signature?

2) Jack Goldsmith argues that courts issue more universal injunctions against Trump actions than against actions by Democratic presidents. Sam Bray counters that Goldsmith relies on studies that do not count universal vacaturs of regulations under the APA. That exclusion skews the numbers--"The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations."

3) It also makes convenient Ohio S.G. Elliot Glaser's argument that universal vacatur is permissible but universal injunctions are not. So courts can universally stop the common mechanism through which Democratic Presidents act but not universally stop the common mechanism through which Republican Presidents (especially Trump, who sees EOs as reflecting his power as a man of action) act.

4) I wonder if the in-between nature of EOs warrants courts issuing DJs but not injunctions. An injunction is less necessary or appropriate when there is no enforceable policy to enjoin. But--accepting Lakier's argument that the EO is sufficiently imminent and chilling--a declaration that the policies commanded in the EO might be a sufficient fallback. Lakier seems open to this. And it satisfies what Steffel suggests to be the purpose of DJs--so one need not act at one's peril to determine their rights.