The Volokh Conspiracy
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Court Rejects Challenge to Trump's Executive Orders on Anti-Semitism
One of the Orders calls on federal agencies to use the International Holocaust Remembrance Alliance definition, which would label certain criticisms of Israel as anti-Semitic.
From Monday's decision by Judge Douglas Harpool (W.D. Mo.) in McClanahan v. Trump, which I think reaches the correct result:
On December 11, 2019, President Donald Trump issued Executive Order 13899, directing federal agencies to use the International Holocaust Remembrance Alliance ("IHRA") definition of antisemitism in enforcing Title VI of the Civil Rights Act. On January 29, 2025, President Trump issued Executive Order 14188 titled Additional Measures to Combat Anti-Semitism. It states that it shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Sematic harassment and violence.
Plaintiff alleges Executive Order 14188 orders the Department of Education and Department of Justice to investigate individuals and institutions critical of Israel and to withhold federal funding from universities that allow such criticisms. Plaintiff alleges that Executive Order 13899 and its expanded enforcement constitute a direct violation of his civil[] rights….
Plaintiff expresses concern that the executive order he challenges calls for the Government to retaliate against those who hold beliefs or express opinions critical of the State of Israel or the Jewish community or religion. If that is how the Government interprets the measure or enforces the measure as so applied is certainly problematic under the First Amendment of our Constitution. [For more on how certain ways of enforcing the IHRA definition can violate the First Amendment, see here and here. -EV]
However, the Court interprets the measure as prioritizing efforts to curtail acts of violence, harassment or discrimination directed toward the Jewish faith and those supportive of the Jewish state rather than to punish those who merely hold opinions critical of these groups. The First Amendment does not protect acts of violence, harassment, or discrimination. In fact, laws long ago enacted prevent acts of violence, harassment and discrimination based on religious beliefs or political opinion. To that extent the Court views the executive orders as a statement of priority or emphasis rather than a change in substantive law.
{Executive Order 13899 states "It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI." Executive Order 14188 states "It shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence." Both Executive Order 13899 and 14188 provide a directive to the executive agencies to combat anti-Semitism utilizing the various procedures that have been outlined by law. These executive orders do not "create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."}
This Court need and should not decide whether a specific act of governmental retaliation against those who fail to crack down on antisemitic violence, harassment or discrimination is constitutional unless and until that specific issue is presented in a case over which this Court has jurisdiction in which the nature, source and extent of the duty and actions of the target can be specifically established.
If Plaintiff is specifically threatened with governmental action based on the executive order either based on his political or religious beliefs his First Amendment rights may well be found to be infringed. If the governmental action toward him is in response to his acts of violence, harassment or discrimination based on another's religious or political beliefs his acts are without First Amendment protection….
Plaintiff [also] argues that the vagueness and overbreadth of Executive Order 13899 creates a chilling effect on his speech by causing him to fear potential government action or reprisal and thus forces him to self-censor his political and religious views…. Here, Plaintiff has failed to show that his self-censorship was objectively reasonable. Plaintiff cites numerous examples that he argues "amplify this chilling effect." Plaintiff cites federal retaliation against universities such as Harvard University for their alleged failure to adequately address campus antisemitism. Plaintiff also cites federal monitoring of political and religious speech by Immigration and Customs Enforcement ("I.C.E.") and U.S. Citizenship and Immigration Services ("U.S.C.I.S.") and Missouri House Legislation Mirroring Executive Order 13899. Plaintiff further cites to Department of Education enforcement actions, advocacy for zero-tolerance policies by private groups, exclusion from the political process by the Missouri Republican Party in 2024, alleged imminent threat to his federal benefits and Executive Order 13899's language and intent.
However, Plaintiff fails to show any retaliation or harm suffered by an individual in Plaintiff's position. Plaintiff fails to show how the Missouri State Government, who is not a party to this action, has any bearing on his speech through legislation that hasn't taken effect. Likewise, Plaintiff has failed to show how actions by private parties, not members of this lawsuit, have shown any ability to enforce Executive Orders 13899 or 14188 that are not connected with the current parties to this litigation. Further, Plaintiff claims the imminent loss of federal benefits, but does not point to any other individuals who have lost federal benefits such as rural development loans and Medicaid, based on protected speech and shows no actual harm to date. In sum, Plaintiff's examples shown no credible threat of prosecution to Plaintiff if he engages in a course of conduct, he feels would be affected by Executive Orders 13899 or 14188. For the reasons stated, Plaintiff's likelihood of success based on chilled speech is low….
The court likewise rejected plaintiff's Establishment Clause claim, which is that "[b]y adopting the IHRA definition of antisemitism, which can encompass criticism of religious and political aspects of [Israel], the government effectively endorses a particular religious and ideological perspective":
The IHRA defines antisemitism as "a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities[.]" The purpose of the Executive Order 13899 is to "combat the rise of antisemitism and antisemitic incidents in the Untied States and around the world." Executive Order 13899 outlines that "Anti-Semitic incidents have increased since 2013 and students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses."
While the executive order does seek to foster protections against a certain religion the purpose of the executive order has a secular purpose as it goes to enforcing the mandate of Title VI. Further, Plaintiff has not shown how Executive Order 13899 either advances or inhibits the practice of religion in its principal or primary effect. Lastly, Plaintiff has not shown how Executive Order 13899 has fostered an excessive government entanglement with religion in promulgating a directive combatting antisemitism. For the reasons stated, Plaintiff's likelihood of success on the merits on his establishment claim argument is low.
The court also rejected plaintiff's due process and vagueness arguments, among other (even less plausible) arguments.
Wyatt Nelson of the U.S. Attorney's Office in the Western District of Missouri represents the government.
