The end of last week brought two interesting incidents of different levels of government suing each other.

1. The Oregon Department of Justice filed suit against the federal government over the use of federal marshals in Portland
2. The Governor of Georgia filed suit against the Mayor of Atlanta over her “required mask” orders in the city.

Oregon Suing the Federal Government

On Friday, July 17, 2020, the state of Oregon filed suit against the federal government over it’s deployment of federal marshals and border protection agents to remove protesters from the streets of Portland.¹ Of particular concern was that these officers did not identify themselves or what federal service they were from, and were taking people off the streets in unmarked vehicles to unknown locations.

It’s not unheard of for the federal government and a state government to engage in litigation, but it’s typically the feds who charge some agency of state government with engaging in civil rights violations. It is highly unusual for a state to charge the federal government with civil rights violations, and in particular to seek an injunction against federal enforcement actions.²

It should also be noted that it’s highly unusual for federal law enforcement authorities to be running operations in a city or state, without the city or state having requested the assistance first.

• Look for the courts to side with Oregon on this issue.

Georgia Suing the City of Atlanta

Georgia Governor Brian Kemp — who shouldn’t even be the Governor right now³ — filed suit against Atlanta Mayor Keisha Lance Bottoms at the end of the week over her order requiring face masks in public places, because it conflicts with his executive order that forbade municipal officials from setting mandatory face-covering policies in the state.⁴

This is also highly unusual. It is a feature of administrative law that state or local governments can set higher standards than the federal or state governments, but cannot set lower standards.

So, for example, Atlanta could require the use of seat belts in the city, even if Georgia had no such mandate, but it could not repeal a state-wide mandate that applies only to Atlanta.

• Look for the courts to side with Atlanta on this issue.

1. These officers were allegedly brought in initially to “protect federal property” while anti-racism protests were continuing in Portland.
2. This all seems to be part of Donald Trump’s directive that state and local police should “dominate the streets” against anti-racism protesters.
3. Kemp was the Secretary of State in Georgia at the time of his very close race against Stacey Abrams for Governor, and is accused of having engaged in voter suppression efforts. The Secretary of State (as in all other states) is the constitutional officer in charge if regulating the election process. Ironically, both Stacey Abrams and Keisha Lance Bottoms are on Joe Biden’s short list for Vice Presidential nomination, as both are women of color.
4. Governor Kemp claims that he is in favor of people wearing masks in public but does not want to mandate it because of the damage it would allegedly do to the economy. While it’s clear how social distancing rules or the closure of establishments might damage the economy, it’s not clear how mask wearing would do the same.