Within hours of taking office, President Trump executed two executive orders aimed at rescinding former President Biden’s Diversity, Equity, and Inclusion (DEI)-focused orders. Trump’s orders reached beyond actions by the Biden administration and sought to rescind the equal employment opportunity executive order from 1965. Despite these sweeping steps, Trump’s executive orders cannot eliminate the U.S. Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) program because it originated via Congress.

The DBE program was enacted by Congress in 1983 and has been reauthorized and amended since — always by Congress. It was most recently reauthorized by that legislative body under the Infrastructure Investment and Jobs Act (also known as the BipartisanInfrastructure Law) in 2021. The DBE program’s primary goal is to remedy ongoing discrimination and its effects in DOT-funded projects.

Some people may associate the DBE program with DEI, which is understandable, given that nearly every business certified as a DBE must be at least 51 percent owned by a woman or a member of a minority group. However, DOT has recently moved away from using race or gender as the basis for DBE certification. Firms owned by nonminority males can become certified if they can show, on a case-by-case basis, they are socially and economically disadvantaged. Likewise, a minority-owned or woman-owned business is not presumed to be socioeconomically disadvantaged merely on that basis. The owners must show they have actually experienced discrimination. Thus, it could be argued the DBE program does not operate under DEI initiatives targeted by Trump’s executive orders.

Even if one were to argue the DBE program falls under the purview of DEI, Trump’s orders cannot eliminate the program because presidents lack the authority to override congressional laws through executive orders. Thus, so long as the Infrastructure Investment and Jobs Act is law, the DBE program is as well. Congress could elect not to reauthorize the law, but that would still require an act of Congress, not a presidential executive order. In fact, Trump’s executive orders expressly state they “shall be implemented consistent with applicable law and subject to the availability of appropriations.” Thus, because the DBE program originated in a law enacted by Congress, the executive order cannot erase it.

While it is not addressed by Trump’s executive order, the DBE program is threatened by an ongoing lawsuit, Mid-America Milling Company, LLC, et al. v. United States Department of Transportation, in which the plaintiffs have challenged DOT’s use of rebuttable presumption to determine “socially disadvantaged” applicants. DOT regulations provide that African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women are presumed to be socioeconomically disadvantaged (known as the “rebuttable presumption”). On Sept. 23, 2024, however, a U.S. district court in the Mid-America case ruled the rebuttable presumption of social disadvantage in the DBE program is unconstitutional, and issued an injunction that bars the use of the rebuttable presumption onDBE projects — but only ones the plaintiffs in that case would bid on. Thus, the court limited its ruling to the two contractor plaintiffs (located in the Midwest) and did not order a nationwide injunction. This ruling was the impetus for DOT to move away from race and gender solely as the basis for certification as a DBE. Although the Mid-America decision is ostensibly limited, its effects are spreading across the nation.

It is also worthwhile to note that the DBE program is only the federal law for certification of disadvantaged businesses. Most if not all states have their own certification program(enacted by their legislatures), which applies outside of the federal DBE program certification. Oregon has four separate state certifications; Washington has six that vary from women to minority to small business certifications. At this point, these states have not taken steps to prevent their agencies from continuing to pursue some goal of participation in their state-funded projects.

The bottom line is: The DBE program and the state equivalent M/WBE programs are not apt to disappear anytime soon. Arguably, the DBE program does not fall under the DEI umbrella, because most certification agencies have already removed the rebuttable presumption of socioeconomic discrimination based solely on race or gender, and instead require applicants to provide specific instances of discrimination.

Realistically, however, the policies the Trump administration relies on to remove DEI initiatives from the federal government may still have an impact on the long-term application of the DBE program. For example, we may reasonably expect that DBE goals could be significantly reduced or removed altogether from future federally funded projects. On the other hand, one could also envision Oregon and Washington moving to strengthen their respective state M/WBE goals and efforts over the next four years — to which federal agencies could respond by withholding federal funding for state-specific programs. Only time — and further government action — will tell.

Column first appeared in the Oregon Daily Journal of Commerce on February 14, 2025.

This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.