I see it gushing down the street overflowing the curbs and flooding sidewalks and yards. I look out the back window and see it successfully paddling upstream. I look up and see it reflected in the clouds. It is less than a fortnight, but meritocracy is on the move. Of course, that had to be because Trump signed an executive order against DEI and the always-right conservatives have proclaimed that DEI—Diversity, Equity, and Inclusion (or DEIA, Diversity, Equity, Inclusion, and Accessibility)—is the enemy of merit.

I, too, have been a critic of the term DEI. Like related concepts—affirmative action, political correctness, critical race theory, LGBTQ rights, and “feeling safe”– DEI gained traction in higher education before it did in the general population. I was not only in academics, I was also the chair of our faculty hiring committee for two decades. In that position, I heard often that we needed a “diverse” faculty. I bristled at such comments in a law school. I thought that a goal of a law school education was to teach precision in the use of language, but our use of the term “diversity” undercut this goal. We were not looking for faculty with differing political or religious views, or with different kinds of legal training, or even differing legal theories. Diversity did not mean diversity in general. It meant differing shades of skin color and perhaps different genitals or alternative sexual preference. A colleague hit the trifecta when he said that he hoped we would hire a black lesbian. “Diversity” was (nudge, nudge, wink, wink) a code word, and, while supporting many of the goals of this “diversity,” I was offended that we who taught law did not use well-defined words.

In his executive order of January 20, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” Trump decided to deal a death blow to DEI. I was curious to see how he defined this identified enemy of meritocracy. The president did require “the termination of all discriminatory programs, including illegal DEI . . . mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.” (Putting on my retired lawyer’s hat, I might say that if “illegal DEI” programs are banned, that must mean there are legal DEI programs that are not banned. But I am pretty sure that is not what is meant.) All federal employment is covered, and while the executive order is not completely clear on this, a Fact Sheet issued two days later (“President Donald J. Trump Protects Civil Rights and Merit-Based Opportunity by Ending Illegal DEI”) makes clear that those in the private sphere that get federal money must also eliminate DEI. The Fact Sheet states that the executive order“terminates diversity, equity, and inclusion (DEI) discrimination in the federal workforce, and in federal contracting and spending.”

 However, neither the executive order nor its follow-up contained a precise definition of DEI. They did not contain a murky definition. They contained no definition at all.

Hints to the meaning are given. The order states: “Federal employment practices, including Federal employee performance reviews, shall reward individual initiative, skills, performance, and hard work and shall not under any circumstances consider DEI or DEIA factors, goals, policies, mandates, or requirements.” It does not state, however, what those DEI factors are. I take the statement as ordering the end of affirmative action, but then why make me guess? Call it what it is. Say something along the line of “there shall be no racial, ethnic, gender, or disability preferences in hiring and performance reviews.” Query: Many institutions, including the federal government, give hiring preferences to veterans. Those practices conflict with the soaring rhetoric of rewarding individual skills and hard work. Are veteran preferences now illegal? By offering no definitions, these executive orders give no guidance.

However, the target seems larger than affirmative action. The order eliminates not only DEI offices and positions but also “environmental justice” jobs. The order uses those quotation marks but again lacks a definition. I don’t know what “environmental justice” means, but I assume that it is something different from affirmative action. But what is it? One needs to guess whether a given position falls into the category. For example, the job is to find sites for the storage or disposal of waste, and you seek to find a dumping ground that is NOT in poor neighborhoods. Are you on the chopping block for seeking “environmental justice”?

The executive order also prohibits “DEI training.” What does this mean? I can guess, but I have to guess. That is part of the danger in the lack of a definition. If I, as a manager, want to stay out of trouble and there is a clear boundary line for the forbidden, I know what I can and can’t do. If the zoning law forbids the construction of buildings over sixty feet, I know precisely how high I can build, and I plan accordingly. If, however, the law prohibits building to an “unreasonable height,” how high can I build? Some will push the vague injunction and build too tall. Many others, however, fearful about having to tear a building down, will err on the low side. Lawful activity is deterred by vague laws.

Assume you run a company or a non-profit that receives federal funding. You believe your institution runs most efficiently, most profitably, when the workforce is trained in racial, ethnic, and gender sensitivity. Fewer workplace conflicts mean more efficiency. Can you continue such programs? You have been ordered to end all DEI policies and programs. You have been told to end all DEI training programs. Can you now include in the employment manual that employees cannot use derogatory terms about race or gender? Do you need to seek preapproval from some government bureaucrat? Who decides what is best for your business or organization, you or the government?

The vaguer the legal mandate, the more likely different people will interpret it differently. A vague legal prohibition leads to arbitrary enforcement, something, I would have thought, conservatives would not want. And arbitrary enforcement is always an invitation to corruption. Is that what conservatives want? Is that what Trump wants?

And I thought conservatives were against government interference and regulation. Silly me.

When Trump tells private institutions how they should operate in their own workplace, conservatism is being twisted out of shape. It is one thing for the federal government to set rules for itself. It is another when it issues edicts for corporations and non-profits. If a federal contractor or grantee is fulfilling its contract or grant, why should free-enterprise-loving conservatives tell a business how to train its employees? Why aren’t these considered intrusive regulations?

On the other hand, perhaps we just have to bend principles so that good ol’ meritocracy can keep on flowing along. Surely Trump and those immediately around him consider themselves the meritorious. In recent days we have been given a good look at their notion of meritocracy. These meritorious ones have already issued and rescinded a “pause” in the operations of government. Good work, guys. I guess “meritocracy” and amateur hour can go together, at least in certain government circles.