Tiffany reintroduces legislation to ban DEI in the federal government

Northwoods U.S. Rep. Tom Tiffany (R-Wisconsin-7) has reintroduced his Fairness, Anti-Discrimination and Individual Rights (FAIR) Act, which would partially codify in statute President Trump’s executive order to end diversity, equity, and inclusion (DEI) programs within the federal government.

Joining as co-sponsors of the bill were Reps. Burgess Owens (R-Utah), Claudia Tenney (R-New York), Harriet Hageman (R-Wyoming), Andy Ogles (R-Tennessee), Mary Miller (R-Illinois), Randy Weber (R-Texas), Barry Moore (R-Alabama), along with Wisconsin Republican Rep. Glenn Grothman.

The legislation would prohibit federal agencies, federal contractors, states, universities, or any other recipient of federal funds from intentionally discriminating against or granting a preference to any person or group based on race, color, or national origin.

“If we want to put an end to discrimination in the United States, the first step is for the government to end its own discriminatory practices,” Tiffany said in introducing the legislation. “The FAIR Act prioritizes merit, delivers on President Trump’s promise to end DEI policies, and ensures fairness by eliminating race-based preferences in the federal government.”

A Southern congressman, Burgess Owens of Alabama, joined with Tiffany in sponsoring the bill, saying he knows what racism looks like because he witnessed it during his childhood in the Jim Crow South. 

“That’s why I’ve been so appalled over the past four years, as the Biden administration pushed for race-based divisions,” Owens said. “No matter how it’s presented, preference under the banner of equity is just plain racism. The FAIR Act reflects a belief I’ve held my entire life: success comes from merit and hard work, not the color of your skin. The federal government must lead by example, promoting unity and opportunity through a commitment to equal treatment for every single American.” 

More specifically, Tiffany’s FAIR Act would prohibit any agency, officer, or employee of the federal government to intentionally discriminate against or grant preferential treatment to any person or group of persons based on race, in connection with federal contracting or subcontracting.

It would also prohibit the government from requiring or encouraging any federal contractor or subcontractor, or the recipient of any federal license or financial assistance, to discriminate against or grant preferential treatment to any person or group of persons based in whole or in part on race, color, or national origin in connection with any federal contract, subcontract, license, or financial assistance.

Finally, it would bar any state or private entity that receives federal financial assistance from intentionally discriminating against or granting preferential treatment to any person or group of persons based in whole or in part on race, color, or national origin in connection with any contract, subcontract, employment, or admission to any educational institution.

The bill — and others being proposed that would codify in statute Trump’s executive orders — is important because statutes require repeal or enactment of new law to be overcome, while a new president can simply rescind the previous administration’s executive orders, as Barack Obama did to George W. Bush, as Trump did to Obama, as Joe Biden did to Trump, and Trump now has done to Biden.

Trump’s executive order

While Tiffany’s bill would be sweeping, it is not — and could not be — as extensive as the president’s executive order, which reshapes and repeals DEI personnel policies and programs internally within the executive branch and which also pilloried the Biden administration’s motives.

“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,” Trump’s executive order stated in its mission statement. “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 that order, as well as to follow-up orders, nearly every federal agency and entity submitted Equity Action Plans to detail the ways that they had furthered DEI’s infiltration of the federal government, the Trump executive order (EO) stated. 

“The public release of these plans demonstrated immense public waste and shameful discrimination,” the EO stated. “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.”

The executive order directs 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), to coordinate the termination of all discriminatory programs, including what the administration deems to be illegal DEI and “diversity, equity, inclusion, and accessibility” (DEIA) mandates, policies, programs, preferences, and activities in the federal government, “under whatever name they appear.”

To carry out the directive, the OPM director is directed to review and revise all existing federal employment practices, union contracts, and training policies or programs for compliance.

“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,” the order directs.

In addition, each federal agency, department, or commission head is required within 60 says to terminate all DEI, DEIA, and “environmental justice” offices and positions, including chief diversity officer positions; all equity action plans, equity actions, initiatives, or programs, equity-related grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.

In the process, the executive order directs those agencies and federal entities to submit a list of agency DEI, DEIA, or “environmental justice” positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024, and an assessment of whether those positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024 function.

The order also requires agencies to submit a list of federal contractors who have provided DEI training or DEI training materials to agency or department employees; and those federal grantees who received federal funding to provide or advance DEI, DEIA, or environmental justice programs, services, or activities since January 20, 2021.

The order directs deputy agency or department heads to assess the operational impact (e.g., the number of new DEI hires) and cost of the prior administration’s DEI, DEIA, and “environmental justice” programs and policies; and to recommend actions to align agency or department programs, activities, policies, regulations, guidance, employment practices, enforcement activities, contracts (including set-asides), grants, consent orders, and litigating positions with the policy of equal dignity and respect identified in section 1 of the order. 

The agency or department head and the Director of OMB shall jointly ensure that the deputy agency or department head has the authority and resources needed to carry out this directive, the EO states.

What is an executive order?

Since the Obama administration, when President Obama said we “can’t wait for Congress” and would govern with his phone and pen, executive orders have been exponentially multiplying, but they are nothing new.

Prior to Trump’s second term, with the exception of William Henry Harrison, every U.S. president had issued at least one executive order, including George Washington. Overall there had been at least 15,902 executive orders. It should be noted that Harrison served only one month in office before dying, so he didn’t have a proper chance to issue his own.

Nearly 16,000 EOs is a lot, but still many people have no idea how they work — whether they have the force of law, whether they can be overturned, and what they can accomplish.

The first answer is, they do have the force and effect of law. According to a 2021 Congressional Research Service (CRS) report, executive orders are written instruments through which a president can issue directives to shape policy. 

“Although the U.S. Constitution does not address executive orders and no statute grants the president the general power to issue them, authority to issue such orders is accepted as an inherent aspect of presidential power, though their legal effect depends on various considerations,” the report states.

After the president signs an executive order, it is published in the Federal Register, as are statutes.

Still, while these orders have the force and effect of law, the president’s authority in issuing them is not unconditional, the CRS report states. Orders must adhere to existing law, whether that’s the constitution, acts of Congress, or decisions made by the courts. The president does not have the power to repeal or change existing laws with an executive order, the way Congress does with legislation.

“To have legal effect, those directives must be issued pursuant to one of the President’s sources of power: either Article II of the Constitution or a delegation of power from Congress,” the report states. “One way that Congress can delegate power to the president is by enacting a statute before the order issues. Congress can also ratify an already-issued executive order by enacting a statute, or can in rare circumstances impliedly ratify an executive order through inaction.”

Of course, executive orders are also often controversial, so there are always attempts to block them. For example, if Congress doesn’t like an executive order, it could pass a statute nullifying the order, or it could refuse to fund the action contemplated by the order.

Executive orders can also be challenged in the courts.

“For example, a court may determine whether the president may act at all,” the CRS report states. “In those circumstances, the court will employ a three-part analysis articulated by Justice Robert Jackson in his concurring opinion to the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer. In other cases, a reviewing court may determine the scope of Congress’s delegation of power to the president.”

To perform that analysis, the CRS report observes, the courts will generally use traditional tools of statutory interpretation. 

“Courts may also be required to determine the scope of the president’s action in the executive order,” the report states. “Courts will begin with the text of the executive order, and may defer to agency interpretations of that order (depending on the circumstances of the particular case). Separately, courts may also review other constitutional issues raised by the executive order (for example, whether the order violates the First Amendment to the U.S. Constitution).”

Given that Republicans control Congress, it’s not likely that Congress will nullify or refuse to fund any of Trump’s EOs. The thrust will be in the opposite direction, that is attempting to codify statutorily as many as possible, as Tiffany is attempting to do on DEI. The courts are a different matter. Already a slew of Democratic-controlled states have challenged Trump’s executive order limiting birthright citizenship, and a federal judge has temporarily blocked it from taking effect. The president’s order would have limited such citizenship to people who have at least one parent who is a United States citizen or permanent resident.

“I have been on the bench for over four decades,” federal judge John Coughenour said in blocking the order. “I can’t remember another case where the question presented is as clear as it is here. This is a blatantly unconstitutional order.”

The NAACP Legal Defense Fund has said it is looking at another order and considering “all available options to stop this administration from implementing alarming and dangerous policies like these executive orders, which aim to subvert our equal protection and anti-discrimination laws and would cause great harm to black people and other people of color.”

As many of the executive orders are implemented, other legal challenges are expected.

Richard Moore may be reached at richardd3d.substack.com.