Defying definition

Perhaps you’ve heard about Executive Order 14151 — Donald Trump’s executive order for “Ending Radical And Wasteful Government DEI Programs And Preferencing” — but have you actually read it? As a statement meant to have legal consequences, it’s astonishingly unclear.

Here are the opening paragraphs:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1.  Purpose and Policy.  The Biden Administration forced illegal and immoral discrimination programs, going by the name “diversity, equity, and inclusion” (DEI), into virtually all aspects of the Federal Government, in areas ranging from airline safety to the military.  This was a concerted effort stemming from President Biden’s first day in office, when he issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

Pursuant to Executive Order 13985 and follow-on orders, nearly every Federal agency and entity submitted “Equity Action Plans” to detail the ways that they have furthered DEIs infiltration of the Federal Government.  The public release of these plans demonstrated immense public waste and shameful discrimination.  That ends today.  Americans deserve a government committed to serving every person with equal dignity and respect, and to expending precious taxpayer resources only on making America great.

Sec. 2.  Implementation.  (a)  The Director of the Office of Management and Budget (OMB), assisted by the Attorney General and the Director of the Office of Personnel Management (OPM), shall coordinate the termination of all discriminatory programs, including illegal DEI and “diversity, equity, inclusion, and accessibility” (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear [emphasis mine].  To carry out this directive, the Director of OPM, with the assistance of the Attorney General as requested, shall review and revise, as appropriate, all existing Federal employment practices, union contracts, and training policies or programs to comply with this order.  Federal employment practices, including Federal employee performance reviews, shall reward individual initiative, skills, performance, and hard work and shall not under any circumstances consider DEI or DEIA factors, goals, policies, mandates, or requirements….

Let’s see what sense we can make of this.

Clearly Trump wants to cancel Biden’s Executive Order 13985. This much would seem to be well within his rights; after all, Biden’s 13985 canceled two of Trump’s previous executive orders (13950 and 13958).

Trump wants to go way beyond reversing 13985, however; he wants to end all DEI programs in the federal government, regardless of their origins.

And what exactly are DEI programs?

Well, according to this executive order, they are “illegal.” That sounds like a big deal. Illegal on what grounds? Which statutes are being violated?

Hmmm, it doesn’t say. Maybe Trump means, “They’re illegal as of now because I say they’re illegal”? Who the hell knows?

DEI programs are also described as “immoral” and also “discriminatory.” Gosh, they sound horrible…. But what exactly qualifies as a DEI program?

Amazingly, “DEI program” is never defined.

A common-sense interpretation of the order might infer that ANY program containing words like diversity, equity, and inclusivity — in combination, or perhaps even individually? — will be shut down. This — stopping programs based on keywords alone, without considering what the programs actually do — would be an arbitrary, absurd way to govern. But the order is even worse than that; it says that these programs will be terminated “under whatever name they appear.” In other words, even programs lacking the dreaded keywords will be axed if they are perceived to harbor some sort of DEI vibe. Whatever that is.

You might think I’m outraged that the President of the United States, with the immense resources at his disposal, can’t produce a comprehensible executive order. Actually, I’m a bit relieved. It will be hard to enforce an order that is so laughably vague. One could even argue that, since the order repeatedly describes the targeted DEI programs as illegal (without explaining why), any program known to be legal cannot be in violation of this order. Or, similarly, that any program consistent with the order in being “committed to serving every person with equal dignity and respect” should be safe.

Do your thing, lawyers!