Activist Obama Appointee District Court Judge Michael Simon has issued a Preliminary Injunction today in a case today involving press access — and prohibiting interference with press reporting — against the Department of Homeland Security and the Department of Justice, aimed at law enforcement agents from Customs & Border Protection and the United States Marshal’s Service.

For the most part the Injunction imposes the same “restrictions” on the federal agents as Judge Simon imposed several weeks ago in granting a Temporary Restraining Order.  I reported on that in this story.

But, after extensive briefing by the parties as part of considering the motion for a preliminary injunction, he has added a very big additional requirement to the Order which I believe will draw a strong DOJ backlash:

“Plaintiffs and Federal Defendants shall promptly confer regarding how the Federal Defendants can place unique identifying markings (using numbers and/or letters) on the uniforms and/or helmets of the officers and agents of the Federal Defendants who are specially deployed to Portland so that they can be identified at a reasonable distance and without unreasonably interfering with the needs of these personnel.”

The order excludes DHS or DOJ personnel who are assigned to Portland offices of either agency, and it excludes federal agents who are operating in plainclothes or an undercover capacity as part of the federal law enforcement presence in Portland.

To emphasize how significant this matter is, and the push-back Judge Simon expects to be coming, he took the unusual step of denying the “oral motion” of the Federal Defendants to stay his order pending appeal.  But he did provide for a period of 14 days for the parties to seek an agreement on the method of marking, and if no agreement is reached then each side will submit a proposal to the Court, and the Court will decide.

The reaction of some to the Court’s Order my be simply to question “What’s the big deal?”  But the problem lies in the idea of the judicial branch dictating operational details to the Executive Branch in an ongoing law enforcement operation as if the Executive Branch was subject to Judicial “supervision.”  I cannot find a single line in the order which suggests the Court even considered the question of whether it possessed the authority necessary to order Executive branch agents to wear identifying markers.  As is too common at the district court level, the Judge just assumed he was empowered to do whatever he believes is necessary to satisfy his own concerns without pausing to consider the question of whether he had such power over a co-equal branch of government.  With respect to private litigants in civil cases, the district court judge has almost unlimited authority on questions such as this.  But when the litigant the judge is directing to take specific against the litigant’s wishes is the Executive Branch, the FIRST question a judge should ask is “Do I have the authority to do this?”

Judge Simon was appointed to the District Court in 2011 by Pres. Obama.  He had spent five years in the Department of Justice Antitrust Division before joining the notable Democrat Party law firm Perkins Coie where he worked for 24 years before being appointed to the Court.   He is married to Democrat Congresswoman Suzanne Bonamici who represents Oregon’s First Congressional District.

In November 2019, Judge Simon issued a nationwide injunction against enforcement of the Trump Administration proclamation requiring persons seeking to immigrate to the US showing that the either had health insurance available to them or within 30 days would be able to obtain health insurance as a condition to entry.  His injunction was upheld in a 2-1 decision by the 9th Circuit Court of Appeals, and so far as I have been able to determine, the Trump Administration has opted to not pursue further review of the injunction in the Supreme Court.

Most of the today’s order is relatively non-controversial, and the position taken by the government in the hearing was that federal agents have not violated the restrictions imposed on them by Judge Simon’s Temporary Restraining Order which included nearly all the same provisions.

It will be interesting to see if DOJ takes the opportunity in the next 14 days to seek review in the 9th Circuit of the terms of this injunction.