The US Court of Appeals for the Fourth Circuit on Friday reversed a lower court decision temporarily blocking President Donald Trump’s executive orders banning diversity, equity, and inclusion (DEI) programs at federal agencies and business that contract with the federal government.

The US District Court for the District of Maryland had blocked orders 14151 and 14173 last month on the basis that they likely violate the First and Fifth Amendments and are unconstitutionally vague on their face. Three provisions within these orders were specifically challenged — certification, enforcement threat, and termination provisions.

These provisions direct 1) all executive agencies to include in every contract or grant award a certification that that the contractor and / or grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws; 2) the attorney general to “take appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” and “identify… potential civil compliance investigations” to deter such programs; and 3) all executive agencies to terminate “equity-related” grants or contracts. The lower court’s grant of injunction blocked all three provisions.

Stating that the scope of the lower court’s preliminary injunction should raise red flags, Judge Allison Rushing noted the unanimous agreement of the panel that the entire substance of the preliminary injunction must be stayed. Rushing stated the government made “a strong showing” that it is likely to succeed in demonstrating that the orders in question banning the DEI programs do not violate the First or Fifth Amendments, thereby satisfying the standard for a stay under Nken v. Holder.

Rushing added that the court must not lose sight of the boundaries of its constitutional role and the “imperative of judicial impartiality” and took direct aim at Judge Diaz’s concurring opinion: “A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.” Rushing was appointed to the Fourth Circuit by Trump.

Judge Albert Diaz’s separate concurring opinion noted his agreement with the order granting a stay of injunction, but added that he cannot but help but be concerned about “a monster in America’s closet.” Diaz was pointing to the somewhat absolute nature of the executive orders seeking to “terminate all ‘equity-based grants or contracts’,” which the government alleges has led to “immense public waste and shameful discrimination.” Diaz added:

[D]espite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. For when this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?

Stating that “a country does itself no favors by scrubbing the shameful moments of its past,” Diaz reminded that previously marginalized Americans are thriving today in spaces long closed to them because “we have stood up, made amends, and moved forward” when the nation has fallen short in the past.

Likewise, Judge Pamela Harris specifically noted that her vote in favor of a stay should “not” be taken as an agreement with the orders’ attack on efforts to promote DEI programs. Rather, her vote is simply based on her view that the government has shown a sufficient likelihood of success to warrant a stay until the case can be heard.

Specifically, Harris noted her agreement with the government’s argument that the orders “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion” and instead apply only to conduct violating existing federal anti-discrimination law. Consequently, Harris stated that this is “a difficult case that will benefit from more sustained attention than we can give it in the present posture.”