The Volokh Conspiracy

I have now reviewed each of the new presidential actions signed by President Trump. Here, I will offer some short thoughts on some of the lower-profile orders. I'll address several of the more significant actions in different posts.

First, a common theme in the orders was a focus on protecting American values and ideals. The order reforming the hiring process for government service provides:

(b) This Federal Hiring Plan shall:

(i) prioritize recruitment of individuals committed to improving the efficiency of the Federal government, passionate about the ideals of our American republic, and committed to upholding the rule of law and the United States Constitution;

I suspect some applicants for federal employment will bring a First Amendment challenge. Is there some objective "ideal of our American republic"?

Second, the order ending DEI program anticipates that the Biden Administration simply renamed DEI programs after the election to avoid being cut. The President asks for programs that have been "misleadingly relabeled."

(A)  agency or department DEI, DEIA, or "environmental justice" positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024, and an assessment of whether these positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024 function;

The President also requests a list of:

(B)  Federal contractors who have provided DEI training or DEI training materials to agency or department employees; and

(C)  Federal grantees who received Federal funding to provide or advance DEI, DEIA, or "environmental justice" programs, services, or activities since January 20, 2021.

I wonder if the Trump Administration will investigate these grants, and perhaps attempt to claw back some of the funding.

Third, the gender ideology order seems to undermine a core tenet of Bostock:

(a)  "Sex" shall refer to an individual's immutable biological classification as either male or female.  "Sex" is not a synonym for and does not include the concept of "gender identity."

To be clear, Justice Gorsuch did not actually conclude that "gender identity" was equivalent to "sex." Gorsuch accepted, at least begrudgingly, the concept of biological sex. Rather, Bostock was premised on applying the but-for test to Title VII. I never found this standard persuasive, but that was in the past. Given this new order, I don't see how the Solicitor General maintains the government's position in Skrmetti. We should expect a new brief from the SG shortly. Let's see if the Court appoints an amicus to defend the government's prior position, or simply dismisses the case altogether.

The order also rejects the Biden Administration's extension of Bostock to Title IX.

(f) The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.

I have not seen an order, yet at least, reversing the extension of Bostock to the Affordable Care Act. This Biden-era policy would require religious hospitals to perform transition surgeries. I suspect Trump will nix that policy.

Fourth, the order concerning Alaska denies a request for an "indigenous sacred site."

(xx)     deny the pending request to the United States Fish and Wildlife Service to an establish indigenous sacred site in the Coastal Plain of the Arctic National Wildlife Refuge;

No obvious justification is given for this denial. I don't know if there is a RFRA claim here. The Court has now relisted Apache Stronghold four times, so there may be a dissental in the works, probably from Justice Gorsuch. Dissenting about a denial of religious liberty for Indians is peak Gorsuch.

Fifth, Trump has determined that members of the Senior Executive Service must be removable at will:

The President's power to remove subordinates is a core part of the Executive power vested by Article II of the Constitution and is necessary for the President to perform his duty to "take Care that the Laws be faithfully executed." Because SES officials wield significant governmental authority, they must serve at the pleasure of the President.

Only that chain of responsibility ensures that SES officials are properly accountable to the President and the American people. If career SES officials fail to faithfully fulfill their duties to advance the needs, policies, and goals of the United States, the President must be able to rectify the situation and ensure that the entire Executive Branch faithfully executes the law. For instance, SES officials who engage in unauthorized disclosure of Executive Branch deliberations, violate the constitutional rights of Americans, refuse to implement policy priorities, or perform their duties inefficiently or negligently should be held accountable.

And Trump has called for the abolition of the current Executive Resources Board, and replace them with a majority of political appointees.

(d) Each agency head should terminate its existing Executive Resources Board (ERB), institute a new or interim ERB, and assign senior noncareer officials to chair and serve on the board as a majority alongside career members;

SES members who do not follow the Administration's priorities are to be removed:

Sixth, President Trump ordered the revocation of John Bolton's security clearance, in part, due to Bolton's book:

National security is also damaged by the publication of classified information. Former National Security Advisor John R. Bolton published a memoir for monetary gain after he was terminated from his White House position in 2019. The book was rife with sensitive information drawn from his time in government. The memoir's reckless treatment of sensitive information undermined the ability of future presidents to request and obtain candid advice on matters of national security from their staff. Publication also created a grave risk that classified material was publicly exposed.

To remedy these abuses of the public trust, this Order directs the revocation of any active or current security clearances held by: (i) the former intelligence officials who engaged in misleading and inappropriate political coordination with the 2020 Biden presidential campaign; and (ii) John R. Bolton.

Sec. 2. Policy. (a) It is the policy of the United States to ensure that the Intelligence Community not be engaged in partisan politics or otherwise used by a U.S. political campaign for electioneering purposes. The term "Intelligence Community" has the meaning given the term in section 3003 of title 50, United States Code.

In the abstract, denying someone a governmental benefit due to their protected speech would violate the First Amendment. But there is a longstanding protocol in which people with security clearances must submit their books for pre-publication review. The argument is that people given this access to classified information surrender some of their First Amendment rights. Look for Bolton to file suit. As best as I can tell, he did not receive a pardon.

I will develop some of the other orders in future posts.