Limits to the Tennessee Secretary of State’s Library Shutdown Directive
The Tennessee Secretary of State has issued instructions directing public libraries to review their collections and practices in response to President Trump’s Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. Upon close examination, these instructions contain significant errors, likely exceeding the Secretary’s authority and reflecting a political agenda rather than a neutral or accurate interpretation of federal or state law.
Public libraries in Tennessee have long operated within a well-defined legal structure that safeguards freedom of speech, ensures nondiscriminatory access, and upholds federal and state mandates governing library services. This brief builds on a letter to the Secretary of State issued by a broad coalition of free speech, library, and civil rights organizations, including EveryLibrary, on November 25, 2025. In it, we examine the Secretary’s instructions in light of that framework and provide insights to help library leaders navigate an unprecedented and deeply flawed directive with clarity, caution, and fidelity to the law.
Presidential Executive Orders are Not Binding on Tennessee
The Tennessee Secretary of State is making an unusual and opportunistic choice by subjecting Tennessee public libraries directly to Executive Order 14168. Secretary Hargett is setting a dangerous precedent by placing Tennessee’s state and municipal government under the authority of any Executive Order by any president. Executive Orders are not laws. As the Heritage Foundation describes, any valid Executive Order primarily focuses on the operations of the federal government. Executive Orders, according to the Heritage Foundation, should not be used to affect the private marketplace, public behavior, and government policy at the state, local, and international levels. Applying Executive Order 14168 directly to Tennessee public libraries is either a misunderstanding or an intentional misreading of the nature of Executive Orders. The courts are clear that “Executive agencies must follow and faithfully administer congressional enactments,” and that the “executive branch cannot ‘enact, amend, or repeal [state] statutes’ (Clinton v. City of New York, 524 U.S. 417, 438 (1998)).
Understanding the limits of Executive Orders requires returning to their Constitutional foundation. An Executive Order is not an independent source of legal authority; it is an instrument through which the President directs the operations of the Executive Branch. Its legitimacy rests on two narrow bases: either Congress has delegated specific authority to the President, or the order is grounded in the President's inherent power. Neither basis permits the President to legislate, to regulate any state government directly, or to create obligations for entities outside the Executive Branch. Executive Orders must broadly follow the law, meaning they must be consistent with federal statutes and the Constitution, particularly the separation of powers and federalism provisions that structure the relationship between federal and state authority. If a state official like Secretary Hargett treats an Executive Order as binding on state or local institutions, they collapse these Constitutional boundaries and misunderstand the Executive Order’s legally constrained role.
There is an additional problem with the Secretary’s interpretation of applying E.O. 14168 to Tennessee public libraries: Executive Orders cannot be applied retroactively. Both constitutional doctrine and administrative law strongly disfavour retroactive rulemaking. The President lacks the authority to impose new duties or penalties for past actions or reinterpret statutory obligations after the fact. The Supreme Court has been explicit on this point: in Bowen v. Georgetown University Hospital (1988), the Court held that federal agencies may not promulgate retroactive rules without express congressional authorization. Likewise, Congress is itself constrained by the Ex Post Facto Clause and the Due Process Clause of the United States Constitution. It could also be argued that the Tennessee Constitution, which prohibits ex post facto laws in Article I, Section 11, constrains the Secretary as well.
Taken together, these principles of the separation of powers, federalism and states' rights, statutory supremacy, constitutional limits, and the prohibition on retroactive executive rulemaking make one conclusion unavoidable: Executive Order 14168 cannot dictate policy to Tennessee public libraries, nor can it be treated as binding on past or present actions by state or municipal officials. The Secretary of State’s interpretation is not only legally unsound, but it also undermines the Constitutional structure that protects both state autonomy and the rule of law.
Executive Order 14168 is Being Challenged in the Courts
Tennessee public library boards should approach the review process with extreme caution. Multiple federal courts have already enjoined or invalidated key provisions of Executive Order 14168, creating substantial uncertainty about its scope and legality. Proceeding with a content or viewpoint review under these conditions risks placing libraries in jeopardy by acting on instructions rooted in an unstable and contested legal framework. Ongoing court actions create tremendous uncertainty for the state and library boards, which should caution anyone from proceeding with a review until the legality of the E.O. is settled. Library boards should be very hesitant to implement any portion of the SOS process and should not proceed in haste if they choose to do so.
For example, the Court has already found against the Trump administration in the settlement order in San Francisco AIDS Foundation v. Trump. The anti-trans provisions of Executive Order 14168 violate the equal protection rights of Plaintiffs, as well as Plaintiffs’ constitutional rights under the First and Fifth Amendments, because they impose both content-based discrimination and status-based discrimination by excluding protected communities from receiving federally funded services.
In a preliminary injunction issued against Executive Order 14168 in Schiff v. Office of Personnel Management, the court enjoined the removal of publications from federal health websites caused by implementation of the E.O. The injunction says that because the E.O. voices a specific ideology about gender and advances negative claims about gender, it is “textbook viewpoint discrimination. Defendants have not proffered—and cannot proffer—a viewpoint-neutral justification for excluding Plaintiffs’ publications.” The court ends by noting that “[T]here is no other explanation” in using the executive order to remove publications about gender and sex from public-facing websites than viewpoint discrimination.
Another complaint against Executive Order 14168 (and other anti-person E.O.s) by the National Urban League correctly notes that the language of the E.O. is vague and contains numerous undefined and ambiguous terms. “President Trump’s hostility toward DEIA, and the actions already taken by the Trump Administration to eliminate whatever it considers to be DEIA from the federal workplace,” they note, “[D]emonstrate a strong likelihood that anything labeled DEIA, anything that uses terms that relate to historic or systemic racism, sexism, sexual orientation, or access for people with disabilities, and anything connected to core civil rights policies, programs, and activities may be considered illegal by this Administration without an investigation or other due process.”
These cases highlight the fundamental yet critical point that Executive Order 14168 is on shaky legal ground, with multiple courts ruling its core provisions unconstitutional, discriminatory, or impermissibly vague. For Tennessee libraries to move ahead as though the E.O. were settled law potentially exposes state agencies and library boards to unnecessary risk. Until the courts determine the final scope and validity of Executive Order 14168, any attempt to enforce it against Tennessee public libraries is premature, imprudent, and contrary to both Constitutional principles and responsible governance.
Missapplication of Tennessee State Laws
While the Secretary of State’s reliance on Executive Order 14168 is misplaced, it is equally important to examine the state-level laws that he attempts to invoke to justify expanded review or censorship of public library collections.
The Tennessee Age Appropriate Materials Act of 2022 only applies to public schools. It requires public schools to review and manage their library materials based on the age and maturity levels of their students. This law is not operative in public libraries. However, suppose the Secretary insists on bringing this law into public libraries. In that case, it is important to note that a federal court has enjoined a similar action by the Department of Defense Education Agencies from removing books from its school libraries. In EK v. DODEA, the Court says that the Department of Defense has “not put forward any purported pedagogical interests around the effectiveness or age appropriateness of curriculum to justify [book] removal.” This suggests that the Age Appropriate Materials Act may be questionably constitutional. The court, which reviewed the implementation of several Trump Executive Orders in K-12 schools on military bases domestically and abroad, went on to say that it “cannot contemplate the pedagogical basis” for banning books and materials from these schools. The Secretary should not attempt to apply it to public libraries.
It is also unwise for Tennessee libraries to follow the administrative goals of the Dismantling DEI Departments Act and apply them to the collections, programs, and services of public libraries in the state. Public libraries are places of public accommodation and are required to be anti-discriminatory under Title II, Title III, and Title VI of the Civil Rights Act. They serve all inhabitants of their jurisdictions without fear or favor. Likewise, Title VII of the Civil Rights Act guarantees that their hiring and employment practices are conducted under the fair practices established by the Equal Employment Opportunity Commission. A library would no more turn away someone at the door because of their race or creed than post a want ad saying no one of a certain religion or sex can apply.
Because Tennessee libraries have longstanding collection development practices for bringing in books and other materials that are relevant to a wide variety of interests and identities of its inhabitants, suddenly and capriciously applying the recent “Dismantling DEI Departments Act” would trigger a discriminatory preference based on sex and gender, which is not allowable under law. Because Executive Order 14168 is not applicable to Tennessee (and is of questionable constitutional validity), and the Age Appropriate Materials Act cannot operate in public libraries, as there is no change in the qualifications, merit, or eligibility of any inhabitant. Therefore, there is no reason to withhold the benefits, opportunities, and advantages provided by free and fair access to the public library.
Cannot Change the IMLS Rules Retroactively
Federal law only provides for the suspension or termination of grants when agreements are broken or abrogated. Secretary Hargett should not worry that the federal government will retroactively claw back funding lawfully appropriated by Congress annually and apportioned by the Institute of Museum and Library Services (IMLS) under law. Congress was very clear in the Museum and Library Services Act that IMLS is statutorily required to send federal funding to state libraries under the Grants to States program (Sec. 9141 of the law). Congress established this federal grant program to support and expand library services in all states through their state libraries. It is only under the narrowest of possible worldviews that the enacting legislation, which says the funding should go “[T]o enable libraries to develop services that meet the needs of communities throughout the Nation, including people of diverse geographic, cultural, and socioeconomic backgrounds,” should be interpreted as discriminatory and exclusionary. The current Tennessee State Library and Archives’ 5-year plan for spending federal funding affirms the aims and goals of the funding set by Congress, as it has time and again since 2013. Likewise, the state library, under the authority of the Secretary of State’s office, has regularly certified compliance with the anti-discrimination provisions of Title VI of the Civil Rights Act of 1964. Any spending done under the authority of the current grant agreement is safeguarded from discrimination in the same way that libraries safeguard the First Amendment rights of readers.
Applying the Trump Free Speech Executive Order
In the end, if Secretary Hargett continues to insist that Trump Executive Orders should be directly enforced in Tennessee public libraries, he should also implement Executive Order 14149, "Restoring Freedom of Speech and Ending Federal Censorship," also signed by President Trump on January 20, 2025. That Executive Order is intended to protect the speech rights of Americans from federal government suppression. It explicitly prohibits federal officials from coercing or influencing content decisions in a manner that violates the First Amendment. That E.O. was largely issued in response to a case, Murthy v. Missouri (formerly Missouri v. Biden) in which the Fifth Circuit decried federal government influence over social media content moderation. It is worth noting that the Attorney General of Tennessee joined the case to argue against federal overreach into protected speech. Public libraries are a limited public forum. They are government-funded and operated venues that host private speech. The Secretary should be aware that courts tend to rule against governments when they compel speech, especially negatively by removing material.
Taken together, these observations lead to a consistent and unavoidable conclusion: neither federal executive orders, federal regulations, nor state statutes empower the Tennessee Secretary of State with the authority to reinterpret long-standing library practices, alter established federal grant obligations, or impose new ideological tests on public library collections and services. Federal law does not allow retroactive changes to IMLS grant conditions, and constitutional law does not permit viewpoint-based censorship in limited public forums such as libraries. If Secretary Hargett insists on invoking presidential Executive Orders, he must also respect those that prohibit government interference with protected speech, especially where Tennessee itself has argued against federal overreach. Ultimately, Tennessee’s public libraries operate within a legal framework designed to ensure equal access, safeguard intellectual freedom, and protect residents from discrimination. Nothing in federal or state law justifies public library boards abandoning that framework now.