Pennsylvania’s Proposed Ban on Driver’s Licenses for Undocumented Immigrants: What It Means for the Commonwealth
Pennsylvania is once again at the center of a heated political debate—this time over a proposed constitutional amendment that could ban undocumented immigrants from obtaining driver’s licenses. The proposal, which has sparked polarized responses, is expected to stir discussions in the state legislature and beyond. In this post, we’ll explore the background of the amendment, the political arguments on both sides, and the potential economic, legal, and societal impacts if the amendment is enacted.
Background: Understanding the Proposed Amendment
The proposed amendment seeks to change Pennsylvania’s constitution to prohibit undocumented immigrants from obtaining driver’s licenses. This amendment would mark a shift in state policy, as some states currently allow undocumented residents to obtain licenses as part of efforts to enhance road safety and improve identification records. The push for the amendment has largely been driven by Republican lawmakers who argue that the change is necessary to uphold immigration laws and protect public resources. By elevating the issue to the level of a constitutional amendment, proponents aim to make it more difficult for future legislatures to reverse the policy.
The Political Debate: Pros and Cons
As with many immigration-related issues, the debate over driver’s licenses for undocumented immigrants has divided opinions along political lines.
Arguments in Favor of the Amendment
Upholding Immigration Laws: Supporters argue that granting licenses to undocumented immigrants undermines federal immigration laws and could incentivize illegal immigration.
Preventing Voter Fraud: Some proponents claim that driver’s licenses could be used to improperly access voting systems, despite existing safeguards.
Resource Allocation: Advocates contend that public resources should prioritize legal residents and citizens.
Arguments Against the Amendment
Enhancing Road Safety: Opponents point out that allowing undocumented immigrants to obtain licenses can improve road safety by ensuring that all drivers are tested, insured, and educated about traffic laws.
Economic Impact: Undocumented immigrants play a vital role in Pennsylvania’s economy, particularly in industries like agriculture and construction. Restricting access to driver’s licenses could limit their ability to work and contribute to local economies.
Humanitarian Concerns: Critics argue that the amendment could create unnecessary hardships for immigrant families who rely on driving to access essential services, including healthcare, education, and employment.
Potential Economic and Societal Impacts
The implications of the proposed amendment could be far-reaching, affecting various aspects of life in Pennsylvania.
Workforce Participation: Limiting access to driver’s licenses could reduce the mobility of undocumented workers, making it harder for employers to fill essential jobs. This, in turn, could impact productivity and economic growth.
Public Safety: Studies from other states have shown that providing driver’s licenses to undocumented immigrants can lead to fewer hit-and-run accidents and lower overall crash rates. Without access to licenses, some immigrants may drive without proper training or insurance, potentially increasing safety risks.
Social Integration: Driver’s licenses are often a key tool for social integration, allowing individuals to participate more fully in their communities. The amendment could deepen divides and contribute to a sense of marginalization among immigrant populations.
Legal Implications: The Road Ahead
For the proposed amendment to become law, it must go through a multi-step process. First, it needs to be approved in two consecutive sessions of the Pennsylvania General Assembly. Then, it must be presented to voters in a statewide referendum. This process could take several years, providing ample opportunity for public debate and advocacy on both sides.
If the amendment is ultimately approved, Pennsylvania would join a growing number of states that have implemented restrictions on driver’s licenses for undocumented immigrants. However, legal challenges could arise, particularly if the amendment is seen as conflicting with federal policies or constitutional protections.
So…What’s at Stake for Pennsylvania?
The debate over driver’s licenses for undocumented immigrants touches on complex issues of law, economics, and social justice. As the legislative process unfolds, Pennsylvanians will need to weigh the potential benefits and drawbacks of the proposed amendment and consider its broader implications for the state’s future.
Regardless of the outcome, one thing is clear: this issue is not just about driver’s licenses—it’s about who we are as a society and how we choose to balance the principles of law enforcement, economic prosperity, and human dignity.
SCOTUS to Consider Emergency Applications to Lift Nationwide Injunctions on EO Ending Birthright Citizenship?
The Trump Administration urged the U.S. Supreme Court to limit nationwide injunctions blocking enforcement of the executive order (EO) to end birthright citizenship.
Following his inauguration on Jan. 20, 2025, President Donald Trump signed an EO directing federal agencies to refuse recognition of U.S. citizenship for children born in the United States to mothers who are in the country without authorization or on nonimmigrant visas, if the father is not a U.S. citizen or green card holder.
Judges in Maryland, Massachusetts, and Washington state have issued nationwide injunctions barring the government from implementing the EO.
President Trump appealed to the Supreme Court to limit these nationwide injunctions, arguing that they disrupt the judicial process and overreach into executive branch operations. The administration’s March 13 emergency applications asked that the court orders be limited to the specific individuals and organizations involved in the lawsuits. They contend that there is no justification for the injunctions to apply nationwide, particularly to the 18 states that support the EO.
The Supreme Court’s decision could potentially lead to a ruling that restricts district courts from issuing nationwide injunctions. The administration also argues that the injunctions improperly interfere with the executive branch’s ability to develop guidance for implementing the EO. If the justices do not agree to limit the injunctions to individuals and organizations, the administration has requested that they be restricted to the plaintiff states.
Federal Agencies Target Universities Amid Antisemitism Allegations
The federal government recently revoked all grants and contracts with Columbia University, citing “illegal protests” and antisemitism on campus. The U.S. Department of Education’s Office for Civil Rights also sent letters to sixty universities, warning them of potential enforcement actions if they do not sufficiently protect Jewish students from harassment and discrimination.
Quick Hits
The Trump administration recently withdrew all contracts and grants with Columbia University in response to the anti-Israel or pro-Palestinian protests and allegations of harassment against Jewish students that occurred there in 2024.
The Department of Education sent letters to alert sixty other universities that they could face enforcement actions if they fail to protect Jewish students from harassment and discrimination.
The federal government has a new Joint Task Force to Combat Anti-Semitism.
On March 7, 2025, the U.S. Department of Justice (DOJ), U.S. Department of Health and Human Services (HHS), U.S. Department of Education, and the U.S. General Services Administration (GSA) announced they were canceling $400 million worth of federal grants and contracts with Columbia University in New York City. The agencies, as part of the new Joint Task Force to Combat Anti-Semitism, cited “illegal protests” and “the school’s continued inaction in the face of persistent harassment of Jewish students.”
The Trump administration and its Joint Task Force to Combat Antisemitism are targeting colleges that have seen pro-Palestinian or anti-Israel protests on their campuses, protests that the administration is interpreting to be antisemitic and ‘illegal’ according to the recent letters and the prior EO.”
Many universities, including Columbia, experienced protests by students and staff in 2023 and 2024, following the October 7, 2023, Hamas attack against Israel and the subsequent ongoing war between Israel and Hamas.
On January 29, 2025, President Donald Trump released an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directed federal agencies to report on complaints “against or involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.” It ordered agencies to identify all civil and criminal authorities or actions within their jurisdiction that might be used to curb antisemitism.
On March 3, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) issued a statement indicating a new policy priority to combat antisemitism in higher education. EEOC Acting Chair Andrea Lucas said, “[U]niversities are workplaces, too, and large-scale employers. In addition to Jewish professors on campus, universities employ Jewish staff who work a variety of jobs, all of whom have the right not to be discriminated against or harassed on the basis of religion, national origin, or race.”
On March 10, the Department of Education sent letters to sixty universities across the country, warning of potential enforcement actions if they don’t protect Jewish students from harassment and discrimination.
Title VII of the Civil Rights Act of 1964 prohibits workplace harassment and discrimination based on religion and national origin, which includes having Jewish ancestry.
Federal Law on Protests
Under the First Amendment of the U.S. Constitution, individuals have the right to peacefully protest in public spaces. Protesting violates the law if it becomes violent, incites immediate violence, or lacks a permit required for the space.
In 2024, although many protesters were peaceful, some campus protests led to violence and property damage, which resulted in arrests.
Next Steps
Universities and colleges may wish to inventory all federal contracts and grants they currently have to better understand their scope. They may wish to carefully document their policies and practices intended to prevent harassment and discrimination based on religion and national origin. They can update their employee handbooks and employee training to specifically prohibit anti-Jewish harassment and discrimination in the workplace.
The EEOC has released a poster that explains workers’ rights if they experience antisemitism at work.
California AG Again Enjoined from Implementing California Age Appropriate Design Code Act
On March 13, 2025, the U.S. District Court for the Northern District of California granted a second motion for preliminary injunction in favor of the technology trade group NetChoice. The injunction once again enjoins the California Attorney General from enforcing the California Age Appropriate Design Code Act (the “AADC” or “Code”), which was originally intended to take effect on July 1, 2024. The District Court determined that NetChoice is likely to succeed on claims raised in its amended complaint that the AADC is facially invalid under the First Amendment guarantee of free speech. As a result, the California AG is immediately enjoined from enforcing the Code during the pendency of the litigation.
The claims of free speech infringement stem primarily from the Code’s requirement for covered businesses to perform a data protection impact assessment (“DPIA”) to identify material risks to children under the age of 18, document and mitigate those risks before such children access an online service, product or feature and provide the DPIA to the California Attorney General upon written request. NetChoice asserts that on this basis the Code violates the expressive rights of NetChoice, its members and is void for vagueness under the First Amendment.
An injunction previously granted by the District Court in respect of the Act’s 2023 implementation was partially upheld by a Ninth Circuit panel in August of 2024, with respect to the DPIA requirement and provisions of the Code not grammatically severable from the DPIA requirement, including notice and cure provisions with respect to non-compliance. The Ninth Circuit vacated the rest of the district court’s first ruling and remanded the case to assess other provisions of the Code in more detail and consider whether the law’s unconstitutional provisions are severable from the remainder of the law.
The District Court determined that the AADC is not sufficiently narrowly tailored (under the strict scrutiny standard) to achieve its interest in protecting children online. On the basis that NetChoice has a colorable First Amendment claim, it would suffer irreparable harm if the Code were to take effect. The District Court also found that the enjoined DPIA provisions are not volitionally severable from the remainder of the AADC, though they are functionally severable.
The District Court determined, on the other hand, that NetChoice had not shown that it is likely to succeed on certain other claims, such as that the AADC was pre-empted by the federal Communications Decency Act or by the Children’s Online Privacy Protection Act.
Will Ling Chi Kill The Corporate Transparency Act?
Ling Chi was a slow and torturous method of execution practiced in Imperial China. Better known in English as “death by a thousand cuts”, ling chi took a terribly long time to kill the condemned prisoner.
The Corporate Transparency Act, or CTA, may also be killed by a thousand cuts. Since enactment, the CTA has been challenged in numerous courts around the country, bills have been introduced in Congress to delay implementation of the act, FinCEN has announced suspension of enforcement against U.S. citizens and domestic reporting companies. See Navigating the Changing Landscape of Corporate Transparency Act Compliance. Now, U.S. District Court Judge Robert J. Jonker has granted judgment:
(1) declaring the Reporting Requirements of the CTA a violation of the Fourth Amendment prohibition against unreasonable searches; (2) relieving Plaintiffs and their members of any obligation to comply with the Reporting Requirements of the CTA; and (3) permanently enjoining Defendants from enforcing any of the CTA’s Reporting Requirements against the plaintiffs and their members, and from using or disclosing any information already provided by the plaintiffs and their members under the Reporting Requirements.
Small Bus. Ass’n of Michigan v. Yellen, 2025 WL 704287 (W.D. Mich. Mar. 3, 2025). Judge Jonker’s comments on the Fourth Amendment are worth noting:
The Constitution generally, and the Bill of Rights in particular, are all about protecting citizens from the power of government. Governmental power has a natural tendency to expand and encroach on the freedom and privacy of citizens. That is true even when the government is pursuing goals—like crime investigation and prevention—that are worthy and important. The Fourth Amendment is one of the key limits on government power that protects the legitimate privacy interests of citizens from unreasonable government intrusion. In Orwell’s 1984, “Big Brother” had omnipresent telescreens everywhere—including every citizen’s living room—that made sure nothing beyond a smuggled, hand-written diary was truly private. The CTA doesn’t go that far, to be sure, but it’s a step in that direction. It compels citizens to disclose private information they are not required to disclose anywhere else just so the government can sit on a massive database to satisfy future law enforcement requests. It does so at a cost of billions of dollars to the citizens least likely to afford it. It amounts to an unreasonable search prohibited by the Fourth Amendment.
DC Circuit Affirms Decision That Copyright Statute Requires Some Amount of Human Authorship, Leaves More Difficult Questions for Another Day
Does copyright law require that a human create a work? Yesterday the D.C. Circuit in Thaler v. Perlmutter held that it does and that a machine (such as a computer operating a generative AI program) cannot be designated as the author of the work. However, the D.C. Circuit refrained from saying more for now, leaving other questions about the use of AI when creating works for another day.
Dr. Stephen Thaler, a computer scientist who works with artificial intelligence, submitted a copyright application in 2019 for the image below, which he titled “A Recent Entrance to Paradise.” On the application, Thaler identified himself as the claimant, while designating a generative AI platform that he created and called the “Creativity Machine” as the author. For explanation of how the copyright was transferred from the machine as author to himself as claimant, Thaler stated his “ownership of the machine” caused the transfer. He would later argue that some form of work-for-hire transferred ownership to himself.
The Copyright Office denied registration, holding that copyright law requires a human author. Thaler appealed the decision to the District Court for the District of Columbia, which affirmed. As part of his case before the district court, Thaler raised, for the first time, the argument that he was in fact the author based on his creation of the Creativity Machine. However, because he had claimed on the record that the machine was the author throughout the proceedings before the Copyright Office, the district court held that he had waived this argument. Thaler then appealed to the D.C. Circuit Court of Appeals.
The D.C. Circuit’s decision yesterday affirmed both the Copyright Office’s and the district court’s decisions refusing Thaler’s copyright application for registration. On the key issue of copyright authorship, the court held that the text and structure of the Copyright Act requires a human author. Section 201 of the Copyright Act states that ownership “vests initially in the author or authors” of a work. While “author” is undefined, the court looked to at least seven other provisions throughout the Copyright Act that required various acts or states of mind of the author. These included reliance on the author’s life, references to the author’s widow or widower and children, the act of signature required for copyright transfer, and the intent needed to create a joint work of authorship. However, the court deemed none of these requirements applicable to a machine “author.” The court also relied on the Copyright Office’s long-standing policy of refusing registration to nonhuman authors and other appellate court decisions by the Seventh and Ninth circuits that refused claims of copyright authorship inhering in nature, “otherworldly entities,” or animals. Finally, the court held that Thaler’s work-for-hire claim failed at least because the machine had not signed any document designating the work as being made for hire, and that he had waived any claim of personal authorship because he had failed to raise it before the Copyright Office. Therefore, the D.C. Circuit affirmed the denial of registration of the work with the Creativity Machine designated as the author.
While this case is the first to address the question of copyright authorship in the context of generative artificial intelligence, its holding is not unexpected. As briefly referenced above, other appellate courts have addressed the question of nonhuman authorship in other scenarios and come to the same conclusion. Therefore, while Thaler is important for extending the same holding to the context of AI creations, the requirement of human authorship is neither new nor unusual. As the Ninth Circuit held in Naruto v. Slater (a case involving the famous “monkey selfie” photograph), there is a strong presumption in the law that statutes are written with humans as the subjects of rights, not animals or machines. The numerous textual references to the lives, acts, and intentions of authors in the Copyright Act made it easy for the D.C. Circuit not to overturn that presumption here. The D.C. Circuit also held that it did not need to address whether the U.S. Constitution requires a human author under the current case. That issue is left for a future litigant to contend with.
Moreover, Thaler presented his case for machine authorship in the most extreme form possible — a claim that the author was solely the “Creativity Machine,” with no human input at all. As the court references late in the decision, there have now been at least four copyright applications denied registration in whole or in part by the Copyright Office because the author used AI in creating or editing a work, but also relied on human input and human claims of authorship. The D.C. Circuit wisely decided to let that issue await a future ruling. Yet, as a result of that caution, litigants should recognize the limitations of the Thaler decision.
Finally, both Thaler and the other cases coming through the Copyright Office only concern AI creation of visual works of art. They do not concern other fields of creative works, such as written works or music. While the main holding of Thaler — that copyright protection cannot be granted where a machine is the sole creator — will certainly apply in these other fields, the permissible contours of AI-human interaction and their effect on authorship in these other categories of works are even more unclear given the lack of disputes arising to date.
Bufkin v. Collins (No. 23-713)
When a veteran seeks disability benefits, federal law provides that ties go to the applicant. But if the Veterans Administration decides it’s not a tie—that is, the preponderance of the evidence comes out against the veteran—then it has no occasion to apply this tiebreaking rule. That leads to a question only an appellate lawyer would ask: What standard of review applies to the VA’s determination that the evidence isn’t even: The de novo standard generally used for legal questions or the clear error one used for findings of fact? In Bufkin v. Collins (No. 23-713), a seven-Justice majority held that this is a best seen as a mixed question of law and fact where the fact piece dominates, meriting clear error review. That prompted a dissent from the two Justices perhaps most likely to favor the little guy against the big-bad government—Justices Jackson and Gorsuch—who thought the whole point of this tie-breaking rule was to thwart the VA’s historical reluctance to award veterans the disability benefits they should receive.
Joshua Bufkin and Norman Thornton are two veterans who applied for disability benefits for PTSD caused by their time in the military. Their claims began in local VA regional offices (the first port of call for veterans seeking disability benefits), where Bufkin’s claim was denied entirely, while Thornton received lower benefits than he sought. Both then appealed to the Board of Veterans’ Appeals, an Article I court that reviews the benefits decisions of VA regional offices. The Board affirmed both regional offices’ decisions. In doing so, it acknowledged that whenever “there is an approximate balance of positive and negative evidence” on any issue material to a veteran’s claim, the VA must “give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). But the Board concluded that the evidence was not approximately balanced, so Bufkin and Thornton weren’t entitled to that deferential standard.
Bufkin and Thornton then appealed their respective cases to the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”), another Article I tribunal, which reviews decisions from the Board. There, they argued that the evidence supporting their claims was about equal to the evidence against them, and that they were therefore entitled to get the benefit of the doubt. Federal law provides that in reviewing Board decisions, the Veterans Court must “take due account” of this benefit-of-the-doubt rule. But the Veterans Court concluded that the account that was “due” wasn’t much: Seeing no clear error in the Board’s decision that evidence weighed more strongly against the veterans, it affirmed the Board.
Bufkin and Thornton then appealed the Veterans Court’s decisions to the U.S. Court of Appeals for the Federal Circuit, a genuine Article III court that (among a great many other things) reviews decisions from the Veterans Court. It agreed with the Veterans Court that clear error applies to the Board’s decision that the evidence wasn’t roughly 50-50, so it too affirmed the denial of benefits. These three rounds of appeals weren’t enough for Bufkin and Thornton, though, as they successfully convinced the Supreme Court to grant cert to address the appropriate standard of review.
Unfortunately for our persistent appellants, the Court affirmed all the courts below it in a 7-2 opinion authored by Justice Thomas. It began with the language of the statute which, as discussed above, requires the Veterans Court to take “due account” of the “benefit-of-the-doubt” rule in reviewing the Board’s decisions. But the phrase “due account” doesn’t have a lot of content on its own, so Thomas concluded the general standards of review called for by the veterans statutes are all the “account” that is “due.” Those statutes prescribe the ordinary standards of review appellate lawyers know well, calling for the Veterans Court to review conclusions of law de novo and findings of fact for clear error. So in which bucket fell the Board’s conclusion that the evidence wasn’t about equal, meaning there’s no “doubt” for the veteran to benefit from? For Thomas and majority, weighing up the evidence involves both legal and factual work, making it a mixed question of fact and law. And because this particular mixed question “is about as factual sounding as any question gets,” Thomas thought it was appropriately reviewed only for clear error.
Justice Thomas then brushed aside two objections to this reasoning. First, Bufkin and Thornton argued this interpretation of the legislative command that the Veterans Court take “due account” of the benefit-of-the-doubt rule made the “due account” provision surplusage. Thomas acknowledged that this objection was “a serious one,” but the problem was that it’s just as true if you apply the de novo standard Bufkin and Thornton asked for: Either way, you’re simply following the statute’s default standards of review. Thomas thus concluded that this wasn’t a context where the rule against surplusage could do any work. Second, the veterans observed that some mixed questions of law and fact—like probable cause determinations—are reviewed de novo. But for Thomas, probable cause determinations dwelt in the “constitutional realm,” giving rise to heightened scrutiny. The “benefit-of-the-doubt” standard, by contrast, was a create of statute. And further, probable cause asks the legal-sounding question of what the hypothetical reasonable man might think of a particular set of facts. The question here—whether the evidence is about equal—was just too fact-like for an appellate court to conduct de novo review.
In dissent, Justice Jackson, joined by Justice Gorsuch, disagreed on both points. In her view, the statutory mandate that the Veterans Court “take due account” of the benefit-of-the-doubt rule should be understood as superseding the general standard of review found in the statute, thereby mandating de novo review. And even if one were to apply the baseline standards of review, Jackson thought that the Board’s determination about whether the benefit-of-the-doubt rule applied looked more like a probable cause determination, meriting de novo review. Although couched in the language of textualism, Jackson’s dissent relied heavily on legislative history, pointing to past drafts of the statute and testimony from veterans groups to Congress, all of which suggested that the whole point of the “due account” provision was to override the Veterans Court’s perceived record of being too deferential to the Board. Finally, Jackson bolstered her ultimate conclusion with the so-called veterans canon, which provides that statutory provisions for the benefit of veterans should be construed in the beneficiary’s favor. It is notable that Justice Gorsuch signed on to a dissent that made such heavy use of legislative history. Perhaps he simply thought veterans should get the benefit of the doubt.
Appeals Court Lifts Injunction on Pair of DEI-Targeting Executive Orders: What It Means for Federal Contractors and Grantees
A panel of the United States Court of Appeals for the Fourth Circuit lifted a nationwide injunction, allowing the Trump administration to resume implementation of a pair of executive orders targeting diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) programs (the “Challenged Executive Orders”). On their face, the Challenged Executive Orders apply only to undefined DEI- and equity-related programs that violate existing federal anti-discrimination law, and do not purport to establish the illegality of all efforts to promote DEI. Our client alert describing those executive orders may be found here.
By way of background, as we previously wrote, on February 21, 2025, the United States District Court for the District of Maryland enjoined the Trump administration from implementing the Challenged Executive Orders.
In short, the underlying lawsuit sought to enjoin certain provisions of the Challenged Executive Orders including the provisions that: (1) directed executive agencies to terminate “equity-related” grants and contracts; and (2) directed all executive agencies to include within every federal contract or grant award a certification, enforceable through the False Claims Act, that the recipient of federal funding does not operate any programs promoting DEIA or DEI in violation of federal anti-discrimination laws (the “Challenged Provisions”). The lower court found the Challenged Provisions to be unconstitutionally vague, as well as unconstitutional content and viewpoint restrictions on speech.
On March 14, 2025, a three-judge panel of the Court of Appeals for the Fourth Circuit overturned the district court’s preliminary injunction that had enjoined key portions of the Challenged Executive Orders.
The panel all agreed that the injunction should be lifted, at least for now, while litigation over the Challenged Executive Orders’ lawfulness continues. Each member of the three-judge panel wrote a concurring opinion to explain their rationale, with two of the judges also expressing their support for principled efforts to promote diversity, equity, and inclusion. In describing why they agreed with the decision to lift the injunction, each judge noted that the underlying case does not challenge any specific agency action implementing the Challenged Executive Orders.
Accordingly, they wrote, there was not yet any basis to conclude that agencies would do so in an unconstitutional manner.
What does this mean?
Agencies may immediately begin implementing the Challenged Executive Orders. In the near term, this will likely take the form of agencies requiring grant recipients and federal contractors to certify that they do not operate any programs promoting DEIA or DEI that violate any applicable Federal anti-discrimination laws. Importantly, as previously explained, these certifications are a potential source of False Claims Act liability for those who are found to have submitted inaccurate certifications.
It is likely that agencies will seek to penalize federal grantees and contractors who, in the scope of their grant-funded or contract-related activity, engage in discrimination unlawful under current federal anti-discrimination law. Federal anti-discrimination law prohibits the use of preferences, quotas, and set asides, except in very limited circumstances.
If agencies use the Challenged Executive Orders to punish grant recipients and federal contractors for engaging in all DEI or DEIA activities, including well-crafted efforts to promote employee engagement through cultivating a sense of belonging, the Challenged Executive Orders will likely again be challenged as unconstitutional violations of the First and Fifth Amendments.
Action items for grant recipients and federal contractors:
Consider embracing a broad definition of “diversity,” to include background (socio-economic and otherwise), experiences, cultures, opinions, and the like, along with race, gender, ethnicity, and other protected characteristics.
Review their diversity, equity, inclusion, accessibility, and belonging programs to ensure they are strategic and well-designed to foster open opportunities and ensure a level playing field for all by creating an environment and culture where everyone is respected and valued.
Examine their diversity, equity, inclusion, accessibility, and belonging programs, including any training or rewards programs, to ensure they comply with current federal anti-discrimination laws. This would include a review to ensure that programs do not provide an advantage or award benefits to an individual based on a specific demographic trait.
Pay close attention to DEI or DEIA-related guidance from agencies regarding how those agencies interpret the executive orders’ DEI and DEIA prohibitions.
Merely changing some words – replacing “diversity” with “inclusivity,” or “equity” with “equality,” for example – will not make a non-compliant program compliant.
If a decision is made to modify existing diversity, equity, inclusion, accessibility, and belonging programs, consider preparing internal communications explaining the changes and their rationale.
Cuts, Closures, and Confusion: A Quick Update on U.S. EPA
It has been 50 days since the Trump administration took office, and there remains a tsunami of activity surrounding executive actions and announcements across the federal government. The Environmental Protection Agency (EPA) has not been spared from deep cuts, office and grant program closures, and a fair amount of confusion.
On March 11, 2025, EPA Administrator Lee Zeldin directed the agency to eliminate all offices focusing on environmental justice. The move comes in the wake of executive orders signed on inauguration day declaring the end to the “whole of government” approach and the “Justice40” initiative and directed all federal agencies to terminate all environmental justice offices and positions. The recent action ends over 30 years of environmental justice work at the EPA by closing the national environmental justice office, along with each of the ten regional environmental justice offices. For the foreseeable future, the environmental justice considerations in environmental permitting and regulations will be starkly absent at the federal level.
Meanwhile, as a result of the February 19, 2025, executive order, the EPA has until April 20, 2025, to review all of their regulations and identify regulations that, among other criteria, are unconstitutional, impose significant costs that outweigh public benefit, or harm the national interest. This comprehensive regulatory review will likely have broad implications for nearly all environmental regulatory programs. For example, just yesterday, Administrator Zeldin announced the EPA’s plan to eliminate 31 separate major environmental regulations. Among the regulations on the chopping block are the greenhouse gas emissions endangerment finding, the “Good Neighbor Plan,” and several other climate-related standards. As for enforcement priorities, the same executive order instructed all federal agencies to “preserve their limited enforcement resources by generally deprioritizing” enforcement where such enforcement is not based on the “best reading of a statute,” or it goes “beyond the powers vested in the Federal Government by the Constitution.”
As for staffing, in February, the EPA had to correct a comment from the President that the EPA would be cutting 65% of its workforce; instead, it clarified that the figure was referencing spending cuts. Undoubtedly, much of those cuts will come from reductions to, or wholesale terminations, of many of the EPA’s traditionally successful and highly lauded grant programs. Just earlier this week the EPA announced its fourth round of cuts, including the cancellation of over 400 grants across nine programs. Then, the next day, the EPA announced it was canceling $20 billion in grants for climate and clean energy programs that had already been frozen. These broad cuts, which came with little or no notice, have left loan and grant applicants and recipients confused and concerned. While not tallied yet, there are sure to be thousands of potential brownfield, resiliency, and energy projects put on hold or terminated. It is anticipated that these cuts will also significantly impact on state and local government funding. It is too early to know whether and how much those gaps will be filled on a state or local level.
There is no sign that the pace of change will be slowing down anytime soon. With these changes, regulatory uncertainty will continue. More so than ever, keeping abreast of these developments and how they may impact operations, projects, or transactions is vitally important to businesses.
Nationwide Injunction Shuts Down Enforcement of Trump’s DEI Executive Orders
On February 21, 2025, a federal district court judge issued a nationwide preliminary injunction that blocks enforcement of three major provisions of President Trump’s Executive Orders related to Diversity, Equity and Inclusion (DEI) programs:
Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.”
Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
(Each an EO and collectively referred to as the EOs.)
The National Association of Diversity Officers in Higher Education filed a lawsuit in the U.S. District of Maryland (Maryland District Court) challenging the constitutionality of these EOs, arguing they are vague under the Fifth Amendment and violate the First Amendment’s Free Speech Clause.
Below is a summary of the enjoined provisions.
Termination Provision: Requires Executive agencies to terminate “equity-related grants or contracts.”
Certification Provision: Requires federal contractors and grantees to certify they will not operate programs promoting DEI that violate Federal anti-discrimination laws.
Enforcement Provision: Directs The U.S. Attorney General to investigate and take actions (e.g., civil compliance investigations) against private sector entities continuing DEI practices.
While the injunction prevents the executive branch from enforcing these EOs, U.S. District Court Judge Adam Abelson allowed the U.S. Attorney General to continue its investigation for a report on ending illegal discrimination and preferences pursuant to EO 14173.
The Trump administration filed a motion with the Fourth Circuit Court to appeal the nationwide injunction. Depending on whether the Fourth Circuit upholds or reverses the injunction, the case may go to trial to determine if the Trump administration’s actions to ban DEI policies and practices are constitutional. Pending the appeal, the Trump administration requested a stay of the preliminary injunction which was denied by Judge Abelson. The Maryland District Court stressed the Trump administration was unable to demonstrate a strong likelihood of success on the merits. Additionally, the Court emphasized, “the chilling of the exercise of fundamental First Amendment rights weighs strongly in favor of the preliminary injunction and against a stay pending appeal.”1
On March 10, 2025, Judge Abelson issued further clarification regarding the scope of the preliminary injunction, stating that it applies to all federal agencies, departments and commissions, not just the named defendants. He explained that limiting the injunction to only the named parties would create an unfair situation where the termination status of a federal grant or the certification requirements for federal contractors would depend on which specific federal agency the grantee or contractor works with for current or future funding. This would result in inequitable treatment in an area that requires uniformity. Consequently, considering President Trump’s directives for all federal agencies, departments and commissions to adhere to the Termination and Certifications Provisions, the preliminary injunction will now encompass all federal agencies to prevent any inconsistent application.
Since the Maryland lawsuit, additional complaints against the anti-DEI EOs have been filed in Illinois, California and Washington D.C., with similar legal arguments to the Maryland case. We will continue to monitor these lawsuits as they progress through the court system.
You can read more about the Maryland lawsuit and the implications of these EOs in our previous alert linked here.
[1] Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, Memorandum Opinion and Order Denying Motion to Stay Injunction Pending Appeal, Case No. 25-cv-00333-ABA (Mar. 3, 2025), 6.
Federal Court Blocks Trump’s Anti-DEI Executive Orders Nationwide
Overview
Shortly after taking office, President Donald Trump issued two executive orders (EOs) targeting diversity, equity, and inclusion (DEI) programs: EO 14151, “Ending Radical And Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” (collectively, the anti-DEI EOs).
On February 21, 2025, following a lawsuit filed by the National Association of Diversity Officers in Higher Education and the American Association of University Professors (collectively, the plaintiffs), the US District Court for the District of Maryland granted a motion for preliminary injunction based on First and Fifth Amendment challenges to the anti-DEI EOs. The court’s order prevents certain aspects of the EOs from taking effect nationwide until a final determination is made on the plaintiffs’ constitutional challenge.
In Depth
LEGAL OVERVIEW
The plaintiffs challenged the following three specific provisions in the anti-DEI EOs as being unconstitutional:
Termination Provision: A provision that directed federal agencies to terminate “equity-related” grants or contracts within 60 days.
Certification Provision: A provision that required federal agencies to include a term in contracts and grants requiring federal contractors and grantees to certify that they do not operate any programs promoting DEI that violate federal anti-discrimination laws as a condition of receiving funding.
Enforcement Threat Provision: A provision that directed the attorney general to take measures to deter DEI programs and identify potential civil compliance investigations.
The plaintiffs argued that these provisions collectively violate the First and Fifth Amendments because they are designed to chill viewpoint speech. They also asserted that the provisions are unconstitutionally vague in informing federal contractors that may be exposed to liability under the False Claims Act what their obligations are and how to comply with them.
The court agreed with the plaintiffs, concluding that:
The Certification and Enforcement Threat Provisions likely violate the First Amendment by chilling speech and imposing viewpoint-based restrictions; and
The Termination and Enforcement Threat Provisions are likely unconstitutionally vague, failing to provide clear guidance and inviting arbitrary enforcement.
WHAT COMPANIES SHOULD DO NEXT
While the nationwide injunction pauses some of the more controversial provisions included in the anti-DEI EOs, it is only a preliminary finding, and the Trump administration may take steps to challenge it. Companies should use this time to work with legal counsel to proactively audit their DEI policies to ensure compliance with existing laws while maintaining alignment with company values.
Joseph Anderson, a law clerk in New York office, also contributed to this client alert.
No Harm, No Foul: Greenwashing Lawsuit Dismissed for Lack of Article III Standing
It is well-settled that under Article III of the Constitution, United States federal courts are limited to trying “cases and controversies.” Moreover, a case or controversy exists only if a plaintiff has standing to file the suit, requiring the plaintiff to demonstrate injury in fact, causation, and redressability. On February 19, 2025, the United States District Court for the Southern District of Florida issued a noteworthy decision and dismissed a putative class action lawsuit filed against lululemon athletica inc., and lululemon usa inc. (“Lululemon”) without leave to amend for lack of Article III standing.
A group of consumers filed the lawsuit alleging that Lululemon made “false, deceptive, and misleading representations” regarding the company’s products and actions as they relate to environmental initiatives in accordance with the company’s “Be Planet” campaign. Gyani v. Lululemon USA Inc., et al., 2025 WL 548405, *1 (S.D. Fla.). For example, the plaintiffs alleged that Lululemon’s website stated that it is “committed to making products that are better in every way-for…the planet.” Id. at *2. In fact, according to the plaintiffs, “Lululemon is responsible for significant GHG gas emissions, landfill waste, and release of microplastics into the environment.” Id. The plaintiffs claimed that they relied on various misrepresentations from the “Be Planet” campaign in deciding to purchase Lululemon products. Id.
The court dismissed plaintiffs’ claims, which were premised on alleged violations of various states’ consumer protection statutes. First, the court found the plaintiffs failed to adequately plead an injury in fact to support claims for monetary damages. The court highlighted that “mere allegations of having paid a price premium are insufficient — a plaintiff must tie the value of the product to any purported misrepresentations.” Id. at 4. On this point, the court found Valiente v. Publix Super Mkts., Inc., 2023 WL 3620538 (S.D. Fla. May 24, 2023) instructive. In Valiente, a plaintiff allegedly purchased cough drops due to the “phrase ‘honey lemon,’ the ‘pictures of these ingredients,’ and the statement that the product ‘soothes sore throats.’” The court dismissed the plaintiff’s claim for lack of injury because the plaintiff failed to allege that the cough drops were in any way “defective” or “worthless.” Id. at *5. The court in Gyani found the facts before it similar in that the plaintiffs’ complaint failed to allege Lululemon’s products were defective or worthless. 2025 WL 548405, *4. Moreover, the plaintiffs failed to allege deceptive or unfair acts as to the products themselves, failing to connect the allegedly problematic “Be Planet” statements to the price premium the plaintiffs alleged that they paid for Lululemon’s products. Id. at *5.
Next, the court held that the plaintiffs failed to plead an injury in fact to support a claim for injunctive relief. The court relied on Williams v. Reckitt Benckiser LLC, 65 F.4th 1243 (11th Cir. 2023) and Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125 (S.D. Fla. 2021), where the plaintiffs alleged that they “would like” to purchase the company’s products in the future “if” the defendant improved the products at issue. In Gyani, the complaint similarly alleged that the plaintiffs “would like” to purchase Lululemon’s products, however, “only if” the plaintiffs “can rely on Lululemon ‘to be truthful in their marketing statements regarding the sustainability and environmental impact of Lululemon’s products and actions.’” 2025 WL 548405, *5. The court held that such allegations failed to demonstrate harm that was actual or imminent.
Finally, the court refused to grant leave to amend. Id. at *6. The court held that the plaintiffs’ request was procedurally improper in that the plaintiffs embedded the request in their opposition brief rather than making the request via motion. Id.
Retailers and manufacturers concerned with risk associated with a growing number of environmental or “green” marketing claims will certainly welcome the Gyani decision. The ruling emphasizes that plaintiffs must demonstrate concrete economic injury linked to the at-issue marketing claims to pursue monetary relief as well as a real and immediate threat of future harm to seek injunctive relief; general allegations relating to a price premium and an equivocal desire to make future purchases are not enough. However, the decision certainly will not put an end to putative class actions asserting greenwashing claims. If faced with a similar lawsuit, retailers and manufacturers should consider whether to seek dismissal at the pleading stage when the complaint does not tie the alleged misrepresentations to the value of the product and/or does not adequately allege any real threat of future harm.