Brian Marron

@brianmarron.bsky.social

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MoCo dad, attorney, amateur scholar athlete, HOA tamer, Good Troublemaker. Orioles, Ravens, Nats, Commanders, Caps, Terps and Survivor fan.

Full quote from House Appropriations Committee hearing: Secretary: “We are now at 72,000 and we’re hiring 12,000 new employees. We will have made up all the employees that we lost and we’ve replaced them with a better group of people who are actually going to address chronic health.” Rep. Hoyer: “Your judgment is that the other 20,000 that were reduced not were not capable, were not motivated?” Secretary: “It’s not my judgment. It’s the record. They presided over the biggest decline in health in the history of the world. We now have the sickest generation in history. We have the sickest population on the face of the earth. That is a failure of government. They weren’t looking at chronic disease. They were focused on other things and they did nothing to prevent the food dyes, the bad food, all of the things that are making us sick. It was their job to protect us and they did not do it. They failed at their jobs and if this was private industry, they would have all been fired. Oh, we did what we had to do to change the culture at these agencies. So, they’re now doing what they can do to pretend that they’re what they were hired to do, which is to protect the health of our country and restore us once again to the healthiest country in the world.”
Conclusion For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED, and the Government's cross-motion for summary judgment is DENIED. It is hereby ORDERED, ADJUDGED, AND DECREED as follows: 1. Declaratory Judgment. unconstitutional, ultra vires, and without legal effect. The termination of National Endowment for the Humanities grants challenged in this action was unlawful because it was undertaken in violation of the First Amendment, in violation of the equal protection component of the Fifth Amendment, and without statutory authority. The Court further DECLARES that DOGE officials lacked statutory authority to identify, select, or direct the termination of NEH grants, and that the resulting terminations were ultra vires. The Mass Termination is DECLARED unlawful,
"[W]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." Adarand, 515 U.S. at 229-30. Although the Government is free to reappraise priorities, administer grant programs, and reduce waste consistent with lawful policy objectives, it may not do so by making race, ethnicity, religion, sex, or sexual orientation the basis for terminating public benefits. There is no federal-funding exception to the Equal Protection Clause.
The Supreme Court's most recent discussion of race-based governmental decisionmaking makes the Government's position difficult to sustain. In Louisiana v. Callais, No. 24-109, 2026 WL 1153054 (U.S. Apr. 29, 2026), Louisiana invoked compliance with the Voting Rights Act - a federal civil-rights statute enacted under Congress's Reconstruction Amendment enforcement authority - as a justification for race-conscious districting. Even then, Justice Alito, writing for the Court, began from the premise that "the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race," and that "Such discrimination triggers strict scrutiny." Id. at *10. The Court further emphasized that "Our acceptance of race-based state action has been rare for a reason." Id. If strict scrutiny applies with such force to race-conscious
The record demonstrates that the Government expressly employed all of the above classifications to identify grants for placement on the termination list. After being deployed from DOGE to NEH, Justin Fox used search terms, which he labeled as "Detection Codes," to identify grants that he dubbed the "Craziest Grants" and "Other Bad Grants." Dkt. No. 248-9, Ex. 9, US- 000016154 ("Detection List" tab). The search terms included, among other terms, "BIPOC (Black, Indigenous, People of Color)," "Minorities," "Native," "Tribal," "Indigenous," "Immigrant," "LGBTQ," "Homosexual," and "Gay." Dkt. No. 248-9, Ex. 9, US-000016154; Dkt. No. 248-1, Fox Dep., 236:22-237:10. When Fox was asked whether he "r[a]n this list of words through every grant description" he received from NEH, he confirmed, "yes." Dkt. No. 248-1, Fox Dep., 276:16- 277:2. In this way, Fox constructed and applied explicit classifications based on protected characteristics and used them as the operative criteria for revoking federal grants.
The Government can violate the Equal Protection Clause in several ways, including by (1) expressly classifying individuals based on their race, see Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 712, 716, 720 (2007); (2) applying facially neutral policies in an intentionally discriminatory manner, see Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); or (3) adopting policies that have a disparate impact and are motivated by discriminatory purpose. Adarand, 515 U.S. at 213. This case implicates the first category of explicit classifications.
In sum, the perceived relationship of a grant to DEI or to the Biden Administration was the very raison d'être for the challenged terminations. Taken together, the DEI-based terminations and the Biden-era terminations reflect the same fundamental constitutional error, though they do so in distinct ways. The former penalized grants because they were perceived to express or reflect disfavored viewpoints; the latter penalized grants because they were perceived to be associated with a disfavored administration. The First Amendment forbids both. The Government may believe that its policy choices are urgent, prudent, and necessary to advance the priorities of the Administration. That is its prerogative. See Nat'l Rifle Ass'n of Am. v. Vullo, 602 U.S. 175, 187-88 (2024). The Court is under no illusion that a new administration may prefer, on a going-forward basis, to fund certain kinds of scholarly programs over others. But lawful priority-setting is one thing; depriving someone of a benefit previously conferred based on viewpoint and perceived political association is something else entirely. Consistent with Regan and Rust, a new administration may pursue lawful funding priorities within the bounds of the NEH statute and the Constitution. But it has no license to suppress disfavored ideas. See Rosenberger, 515 U.S. at 830. Nor do Regan or Rust permit the Executive Branch to disregard the statute Congress enacted and substitute its own funding criteria in its place. The conclusion follows from first principles. "[I]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics[.]" West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see also Chiles
In sum, every aspect of the termination process — the NEH DEI ratings, DOGE’s DEI-based ChatGPT filter, and the spreadsheet categorizing grants by “DEI Rationale” — reflects a single unconstitutional objective: to exclude a disfavored viewpoint from the marketplace of humanistic inquiry. *Accord Thakur*, 163 F.4th at 1207 (“[T]he current record suggests that the government aimed at the suppression of speech that views DEI, DEIA, and environmental justice favorably.”).
This reset has unsettled many within the health services research community, particularly those whose careers advanced during the equity-first era. But elections have consequences. The discomfort expressed by DEI advocates reflects that AHRQ is implementing the mandate voters conferred upon President Trump. Historically, AHRQ did not ignore disparities in Americans’ access to, or quality of, health services. Rather, it studied those disparities carefully and critically, without presupposing particular policy outcomes. The agency permitted conclusions that diverged from prevailing progressive policy assumptions, emphasized methodological rigor, and valued measured, evidence-based inquiry. According to this view, AHRQ’s more recent approach increasingly rewarded ideological alignment over open inquiry and consensus over critique. The Trump-era reforms, by contrast, are framed as a rejection of “woke” advocacy and a return to AHRQ’s traditional role as an independent evaluator of the health care system.
The Government has never claimed that these grants were reviewed for their humanistic merit or terminated for any reason other than DOGE decisionmakers’ perception that they espoused, reflected, or related to the disfavored “DEI” viewpoint. To the contrary, the Government expressly admits that the grants were terminated because they were deemed to promote DEI. See, e.g., Dkt. No. 248-2, Ex. 2, Cavanaugh Dep. 202:18–20 (“Q: [I]f a grant related to DEI, it couldn’t be on the ‘keep’ list, right? A: That’s correct.”). DOGE itself publicly characterized the terminations as targeting “DEI.” In a post from its official X account (formerly Twitter), DOGE stated: > “During the previous administration, the National Endowment for the Humanities (NEH) awarded the following grants to spend taxpayer dollars, all of which have been cancelled ($163M in overall savings). NEH grants will be merit-based and awarded to non-DEI, pro-America causes.” > — DOGE (@DOGE), May 20, 2025, 3:45 PM, [https://x.com/doge/status/1924944059153670530](https://x.com/doge/status/1924944059153670530) (emphasis added) The Government’s own public statements confirm what the record otherwise makes clear: DEI — the disfavored viewpoint — was the reason the majority of Plaintiffs’ grants were terminated. The Government engaged in blatant viewpoint discrimination.
Therefore, ChatGPT and the Government cannot be treated as distinct actors for constitutional purposes. Any argument to the contrary is unworthy of representatives of the Department of Justice. Every lawyer who has been sanctioned for submitting briefs containing hallucinated case citations generated by AI could have offered the same excuse: “It wasn’t me; it was ChatGPT.” The fact that those attorneys have, for the most part, acknowledged responsibility and accepted sanctions only underscores the absurdity of the Government’s position.
b) The Terminations Constitute Unconstitutional Viewpoint Discrimination i. DEI-Based Viewpoint Discrimination This case presents a textbook example of unconstitutional viewpoint discrimination. DEI is, of course, a viewpoint. It “inherently convey[s] the viewpoint that the exclusion of historically disadvantaged groups is undesirable.” Thakur, 163 F.4th at 1206; see also diversity, equity and inclusion, Merriam-Webster, https://perma.cc/84ZW-7JSR (“a set of values and related policies and practices focused on establishing a group culture of equitable and inclusive treatment and on attracting and retaining a diverse group of participants, including people who have historically been excluded or discriminated against”); see also diversity, equity and inclusion, Cambridge English Dictionary, https://perma.cc/M2GS-L4UT
But, in the end, McDonald himself admitted the truth: > “Either way, as you’ve made clear, it’s your decision on whether to discontinue funding any of the projects on this list.” > — Dkt. No. 248-5, Ex. 5, NEH_AR_000023 (emphasis added) That admission is incompatible with any claim that DOGE acted merely in an advisory capacity. It reflects an agency head acknowledging that the authority Congress vested exclusively in him had, in practical effect, been taken out of his hands. The record permits only one conclusion: DOGE was calling the shots. DOGE controlled the lists, rejected McDonald’s recommendations, added additional grants for termination, drafted and sent the notices, and dictated which previously awarded grants would …
Whatever formal role McDonald now claims to have had, the record shows that he could not — and did not — make authoritative decisions on his own during the grant termination process. See *Woodman v. WWOR-TV, Inc.*, 411 F.3d 69, 84 (2d Cir. 2005) (explaining that district courts may rely on “common sense” and are “not required to operate in an experiential vacuum”). McDonald could recommend that certain grants be spared, but he lacked authority to overrule DOGE’s contrary determinations.
Just days before the Mass Termination, Fox told McDonald: > “We need a game plan for effectuating … final grant terminations and contract cancellations by tomorrow AM. We will carry these plans out before the end of the week. We’re getting pressure from the top on this and we’d prefer that you remain on our side but let us know if you’re no longer interested.” > — Dkt. No. 248-15, Ex. 15, US-000050717 (emphasis added) That is not the language of an adviser awaiting a decision from the statutory decisionmaker. Fox told McDonald that “we” — meaning Fox and Cavanaugh — would carry out the terminations, invoked “pressure from the top” (i.e., the White House), and framed McDonald’s participation as optional. See Dkt. No. 248-1, Fox Dep. 305:8–17. Fox’s reference to whether McDonald was “no longer interested” makes clear that DOGE understood the terminations would proceed with or without him. No reasonable factfinder could interpret that communication as evidence of a “purely advisory” role. Fox’s message leaves little doubt about who was directing the process. This DOGE-directed process displaced the statutory official responsible for NEH’s post-award administration, applied nonstatutory criteria, and selected grants for termination without the …
keyword searches and DOGE-generated categories to identify grants he considered objectionable. DOGE then used ChatGPT-generated "DEI" rationales, combined those classifications with NEH staff ratings, and generated the final spreadsheets used to identify grants for termination. See supra Sections I(E)-(G). Cavanaugh and Fox then "both rejected [the NEH Chair's] recommendation" to continue funding certain grants, Dkt. No. 276-1, Cavanaugh Dep., 181:3-9, and added still more grants for termination - grants that NEH staff had identified as "N/A"- on the eve of the April 2, 2025 mass termination, Dkt. No. 248-32, US-000041206. The appearance of Chairperson McDonald's name on the termination letters does not alter the substance of what occurred. Fox, not McDonald, drafted and sent the termination notices under McDonald's name.
purely advisory." Id. at 15 (emphasis added). But the record here demonstrates that DOGE's role was anything but advisory. DOGE made the decisions for NEH. Any suggestion that DOGE merely advised NEH is belied by the undisputed record. They did not simply provide policy advice for NEH leadership to accept or reject after their review. Before ever meeting with NEH leadership, Fox had already begun reviewing NEH grants using - 77-
process designed to test whether particular awards were lawfully terminable. Instead, DOGE imposed nonstatutory criteria - Biden-era status and perceived association with DEI, environmental justice, gender ideology, or other ideas disfavored by the Administration - and -74 - selected grants for termination on that basis. The President cannot override the statutory and regulatory scheme governing NEH funding and grant termination by Executive Order, and DOGE cannot do so in the President's name.
The relevant point is not that the Chairperson is appointed by the President, but that neither the NEH statute nor § 200.340(a) confers on DOGE any authority to terminate NEH grants - least of all by applying criteria that Congress did not enact, that in significant respects contradict the authorizing statute, and that, as explained below, violate the Constitution. This conclusion is reinforced by the statute's text. Congress did not merely omit the anti- "DEI" criterion DOGE applied; it affirmatively instructed NEH to support programs and research that "reflect the diversity and richness of our American cultural heritage," including the culture of "a minority, inner city, rural, or tribal community," and to give "particular regard" to scholars and institutions "that have traditionally been underrepresented." 20 U.S.C. § 956(c)(4).
It turns on the source of legal authority on which he acts. The President may execute congressional policy, but he may not replace it with his own. As Youngstown put it, the problem with the President's seizure order was that it "does not direct that a congressional policy be executed in a manner prescribed by Congress-it directs that a presidential policy be executed in a manner prescribed by the President." Id. at 588. The same reasoning applies here. The Executive Orders and DOGE-directed termination process did not carry out the NEH grantmaking scheme Congress prescribed by law in a duly enacted statute. They displaced it. Congress vested funding authority in the NEH Chairperson. DOGE substituted a presidential policy judgment for a statute duly enacted by Congress. That is not faithful execution of law; it is executive lawmaking in precisely the sense Youngstown forbids.
The matter is before the Court on cross-motions for summary judgment and is resolved on the basis of the full record, including contemporaneous emails, spreadsheets, deposition testimony, and the parties' Local Civil Rule 56.1 statements and counterstatements. For the reasons that follow, the Court concludes that Plaintiffs are entitled to judgment as a matter of law on their claims that the Government's Mass Termination of National Endowment for the Humanities grants (i) violated the First Amendment, (ii) violated the equal protection component of the Fifth Amendment, and (iii) was ultra vires, because, on the undisputed evidence, DOGE officials exercised decisive authority over the selection and termination of NEH grants without any statutory authority to do so.
A judge looking fellow with a silly wig and a pouty face sitting at a desk with a gavele and an open book.
I want to know the name of the prankster who taught AI that: humans like reading complete sentences broken up into bulleted lists.
§ 16–3501. Persons against whom issued; civil action. A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.
§ 16–3501. Persons against whom issued; civil action. A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.
Excerpt from "THEY TOOK YOUR JOB AND GAVE YOU STANDING. ASK YOURSELF: “WHAT WOULD JOHN LEWIS DO?”" You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the properprocedures. Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozensof Does have already sued Musk and DOGE. Consider Raising the Appointments Clause Issue When You Fight Back Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional. What's an Appointments Clause claim about? A few famous judges can help me explain. Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added) Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part). And, one more for now ... Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the challenged action in the first place. That is, winning the merits of the...
"But to return to your position: Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to -- and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose- and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you dont." The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons-Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where Kings have always stood."
Screenshot of pages from "They Took Your Job and Gave You Standing: Ask Yourself: 'What Would John Lewis Do?' A Memorandum of Law for the Livid." The text begins "You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the proper procedures. Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozens of Does have already sued Musk and DOGE. Consider Raising the Appointments Clause Issue When You Fight Back Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional. What's an Appointments Clause claim about? A few famous judges can help me explain. Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added) Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part). And, one more for now ... Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the ...
Screenshot of one page from "They Took Your Job and Gave You Standing: Ask Yourself: 'What Would John Lewis Do?' A Memorandum of Law for the Livid." The text begins "You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the proper procedures. Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozens of Does have already sued Musk and DOGE. Consider Raising the Appointments Clause Issue When You Fight Back Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional. What's an Appointments Clause claim about? A few famous judges can help me explain. Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added) Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part). And, one more for now ... Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the ...