A court that has been hostile to President Trump — and, I would add, hostile to the Second Amendment — just handed him a clean win. On February 6, 2026, the United States Court of Appeals for the Fourth Circuit decided National Association of Diversity Officers in Higher Education v. Trump, No. 25-1189, vacating a preliminary injunction that a Maryland district court had entered against two of Trump’s anti-DEI executive orders. The panel remanded to the district court, but the injunction blocking those orders is gone.
This matters. The Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina — and it has a well-earned reputation for bending left. A win there is a win that counts.
What the Executive Orders Actually Did
On January 20, 2025, President Trump signed Executive Order 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). Together, these orders directed federal agencies to stop funding DEI programs and required federal grantees and contractors to certify — in writing — that their programs do not violate federal anti-discrimination law.
That certification requirement is the crux of the litigation. Plaintiffs — the Mayor and City Council of Baltimore, the American Association of University Professors (AAUP), and NADOHE — argued that the certification and termination provisions chilled their First Amendment speech rights and violated the Fifth Amendment. The district court agreed and entered a preliminary injunction. The Fourth Circuit stayed that injunction pending appeal and has now vacated it entirely.
The legal theory underlying the orders is straightforward: federal civil rights statutes already prohibit race discrimination. The Take Care Clause of Article II, Section 3, obligates the President to faithfully execute those laws. If DEI programs are prioritizing individuals on the basis of race, that is race discrimination — the kind that federal law already forbids. Asking grant recipients to certify compliance with existing law is not some novel power grab. It is the President doing his job.
Judge Rushing’s Concurrence Gets It Right
The most analytically sharp piece of this decision is Judge Allison Jones Rushing’s concurrence. Judge Rushing — appointed by Trump and confirmed March 5, 2019 — goes straight at the standing-and-chill argument and dismantles it:
“Plaintiffs’ claim that the prospect of certification chills their lawful DEI-related activities and expression or may cause them to lose money because of those activities is not objectively reasonable. The certification provision targets programs promoting DEI that violate any applicable federal anti-discrimination laws. Plaintiffs provide no evidence to support their fear that the government will apply that provision to burden their lawful speech or expressive conduct.”
That’s exactly right. Federal anti-discrimination laws have existed for decades. Every employer, grantee, and contractor already operates under the obligation not to discriminate on the basis of race. All the certification provision asks is: can you confirm you’re already following the law? If you can’t certify that, you don’t get taxpayer money. That is not a First Amendment violation. That is a funding condition tied to lawful behavior.
Chief Judge Diaz’s Embarrassing Concurrence
Here is where my frustration boils over — not at the result, which is correct, but at the spectacle. Chief Judge Albert Diaz, the first Hispanic judge to lead the Fourth Circuit, nominated by President Barack Obama and confirmed December 18, 2010, also wrote separately. He ruled for Trump. But he could not resist using his concurrence to apologize to the losing side:
“Important programs terminated by keyword, valuable grants gutted in the dark, worthy efforts to uplift and empower denigrated in social media posts, and cognizant of my oath, I have framed the limited question before us and answered it. And I’ve reluctantly left others for tomorrow. For those disappointed in the outcome, I say this: follow the law, continue your critical work, keep the faith, and depend on the Constitution, which remains a beacon amid the tumult.”
A chief judge of a federal circuit court of appeals wrote a consolation letter to the parties he just ruled against. Why? Because that is how progressive legal culture works. The goal — as I have been arguing for years — is not neutral application of law. The goal is using the courts to deliver outcomes that democratic majorities have refused to vote for. When a judge on that side of the ledger is forced by precedent or plain text to rule against the progressive cause, he signals that he’s still on the team. The concurrence is the signal.
What This Tells Us About Courts and the Second Amendment
My longtime viewers know I do not cover this case for its DEI content alone. I cover it because the Fourth Circuit’s behavior here is a mirror of what happens to Second Amendment cases in that same courthouse — and in circuits like it.
The reason you never see Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson split on any major cultural case — guns, abortion, trans rights — is that progressive judges do not approach those cases as law. They approach them as politics. Meanwhile, originalist justices — Justice Neil M. Gorsuch, Justice Amy Coney Barrett, Justice Samuel A. Alito Jr., Justice Clarence Thomas — sometimes disagree with each other precisely because they are each trying to get the answer right under law and history, not under a predetermined outcome.
The Fourth Circuit ruling in NADOHE v. Trump is a win. But the Diaz concurrence is a reminder: the ideological capture of the federal judiciary did not reverse on January 20, 2025. It just became more visible.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.