Multistate Coalition of Attorneys General Issue Guidance on DEI/DEIA Employment Initiatives Following Executive Order

On February 13, 2025, a coalition of 16 Attorneys General issued a document titled “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” (“Guidance”).  The stated purpose of the Guidance is “to help businesses, nonprofits, and other organizations operating in our respective states understand the continued viability and important role of diversity, equity, inclusion, and accessibility efforts” after private sector participants raised concerns about the continued viability of such policies and programming following an Executive Order that purports to target “illegal DEI and DEIA policies” across a wide range of organizations.

The Guidance reports that “diversity, equity, inclusion, and accessibility best practices are not illegal,” and that “the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations[.]” The Guidance contends that diversity, equity, inclusion, and accessibility initiatives help businesses prevent workplace discrimination and are consistent with federal and state law.  The Guidance concludes with a list of best practices for diversity, equity, inclusion, and accessibility in the areas of recruitment and hiring, professional development and retention, and assessment and integration.

The Attorneys General for the states of Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont joined in the Guidance.  The full text can be found here.

Meanwhile, on February 21, 2025, in Nat’l Assoc. of Diversity Officers in Higher Ed. v. Trump, D. Md, the United States District Court for the District of Maryland issued a preliminary injunction that blocks, at least for now, some of the more salient provisions of the executive order that affect federal contractors and other private sector employers.  In particular, the court took issue with the constitutionality of the certification and enforcement threat provisions (anchored in the False Claims Act).  An analysis of the implications of the injunction for employers and others may be found here

State Attorneys General File Suit Challenging President Trump’s Freeze on Federal Grants and Loans; D.C. District Court Judge Temporarily Blocks Freeze

On January 28, 2025, attorneys general from 22 states and the District of Columbia filed a complaint in the U.S. District Court for the District of Rhode Island seeking a temporary restraining order against the Trump Administration’s proposed spending freeze on federal grants and loans. The state attorneys general include New York, California, Illinois, Rhode Island, New Jersey, Massachusetts, Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, North Carolina, New Mexico, Oregon, Vermont, Washington, and Wisconsin. The complaint alleges that the Office of Management and Budget’s (OMB) proposed pause on federal spending violates the Administrative Procedure Act because it is contrary to law and arbitrary and capricious, the Separation of Powers doctrine because it usurps the legislative function, and the Spending, Presentment, Appropriations, and Take Care Clauses of the United States Constitution.

Also on January 28, 2025, several nonprofit organizations, led by the National Council of Nonprofits, filed suit in the U.S. District Court for the District of Columbia seeking a temporary restraining order “to maintain the status quo until the Court has an opportunity to more fully consider the illegality of OMB’s actions.” The plaintiffs allege that the OMB’s proposed spending freeze violates the Administrative Procedure, is contrary to the First Amendment, and exceeds OMB’s statutory authority.  Judge Loren AliKhan—just one day after OMB issued the temporary pause, and shortly before it was to take effect—temporarily blocked the proposed pause, preventing the Trump Administration from implementing the spending freeze. Judge AliKhan’s temporary order will remain in effect until February 3, 2025, at 5:00 pm.


Multistate Coalition of AGs Files Amicus Brief in Support of the Affordable Care Act’s Preventive Care Mandate

On October 21, 2024, a multistate coalition of 24 attorneys general filed an amicus brief before the U.S. Supreme Court in support of the Affordable Care Act’s preventive care mandate.  The challenged mandate requires private insurers to cover an array of preventive services (such as cancer screening, tobacco cessation, contraception, and immunizations) at no cost to consumers.

The case, Xavier Becerra vs. Braidwood Management, Inc., et al., involves a challenge to the U.S. Preventive Services Task Force, which sits within the Public Health Service of the Department of Health and Human Services (HHS), and was instructed by Congress to issue recommendations for preventive medical services that, under the preventive services provision, health insurance issuers and group health plans must cover without imposing additional out-of-pocket expenses on patients.

In June 2024, the Fifth Circuit partially upheld a March 2023 ruling from a Texas district court and determined that the structure of the U.S. Preventive Services Task Force violates the Appointments Clause because its members are principal officers of the United States who must be (but are not) nominated by the President and confirmed by the Senate. On that basis, it affirmed an injunction prohibiting the federal government from enforcing the preventive services provision against respondents.

Currently, the Supreme Court is considering whether to hear the case.  The attorneys’ general amicus brief urged the Supreme Court to grant certiorari and make clear that the Task Force’s structure is constitutional and that the preventive services provision can be enforced. The brief was filed by the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin. 

A copy of the brief may be found here

Multistate Coalition of AGs Supports FDA’s Denial of Marketing Authorization for Flavored Vape Products

On September 3, 2024, a multistate coalition of 20 attorneys general filed an amicus brief before the U.S. Supreme Court in support of a decision by the U.S. Food and Drug Administration (FDA) to deny companies the ability to market and sell certain flavored e-cigarette products across state lines.

The amicus brief emphasized what the attorneys general described as the “serious health risks” of flavored e-cigarettes (particularly for youth), and argued that the FDA’s statutory authority over the introduction of new tobacco products into interstate commerce is a crucial complement to state and local regulation of flavored e-cigarettes.  The attorneys general explained that while states have adopted a variety of measures to restrict sales of flavored e-cigarettes, these products continue to flow through interstate commerce, necessitating continued FDA oversight.

The case is Food and Drug Administration v. Wages and White Lion Investments, LLC, dba Triton Distribution, et al., and arises from a lawsuit filed by companies challenging the FDA’s denial of their applications to market and sell flavored e-cigarette products across state lines.  In January 2024, the Fifth Circuit Court of Appeals ruled in favor of the applicants’ challenge.  The attorneys general encourage the Supreme Court to reverse that decision.

The amicus brief was filed by the attorneys general for Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.  A copy of the brief may be found here

Massachusetts Attorney General Reaches $600 Million Settlement with Tobacco Companies

On August 12, 2024, the Massachusetts Attorney General’s Office, announced that it had reached a settlement for in excess of $600 million with tobacco manufacturers. The settlement resolves several years’ worth of disputes between the Attorney General’s Office and tobacco manufacturers concerning annual payments arising from a 1998 Master Settlement Agreement (MSA).  That 1998 MSA required tobacco manufacturers to make annual payments to address the public health effects from smoking and the marketing of tobacco products.  The $600 million settlement resolves disputes in arbitration about amounts withheld from those annual payments to states. In announcing the settlement, the AGO emphasized that it is “part of the AGO’s ongoing efforts to improve public health.”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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