Finishing up by linking again to my longer piece on this, which is what I wrote in the thread but with citations and examples and more explanations! Grateful my job let's me research and write about this for work :)

statedemocracy.law.wisc.edu/featured/202...

To be clear, I don't think there's an obvious "right" legal answer here. The case law is murky, there's not a ton of recent binding precedent, and our current legal / political landscape is unpredictable in many ways. But I see people saying mask bans are DOA, and I just don't think that's true.

To wrap up, the main question is do these laws truly interfere with the government's operations, or is it an incidental burden. I think there's a colorable argument for the latter! Many ICE agents don't mask, masking isn't required, ICE agents have done their jobs in the past without masking.

We are still waiting for the decision on the PI in the California case, but I wouldn't be surprised if California loses on the discrimination prong. That said, I haven't yet dug deep into their arguments in response, so I could be wrong! We will see!

I know this is long so if you're still with me, thank you.

The second part of Intergovernmental Immunity is discrimination. Most laws I've seen apply to law enforcement at all levels, which avoids direct discrimination. Notably, California's doesn't, and the fed gov has used that in its arguments.

In that case, the court said Texas could pursue conversion and trespass claims against federal Border Patrol agents who cut a wire fence as part of their patrol. Yes these laws impact & burden how federal agents carry out their duties, but that wasn't enough! I could see a similar arg for masking.

In 2024, the Fifth Circuit said the "key question" "is whether state law seeks to improperly 'control' the employee's federal duties, or whether the law only 'might affect incidentally the mode of carrying out the employment.'"

(I'll note here that California's ban and each bill I've seen includes exceptions for SWAT teams, undercover work, etc., ie times when it is indisputably necessary to mask / cover your face)

No federal law or regulation mandates masking. There are strong arguments masking is not necessary to do the job (ICE did their job for decades without). Not masking does not prohibit ICE from doing anything, really, except covering their faces while they do it.

I'll start with Intergovernmental Immunity, bc this is what was primarily argued in the CA case. I've seen people say that the laws obviously "directly regulate" ICE, but I think it's more nuanced. So do traffic laws!

Where's the line? There's 2 doctrines.

Supremacy Clause Immunity protects officials if their actions were authorized by fed gov & "necessary and proper" to carrying out their job.

Intergovernmental Immunity protects feds from laws that either directly regulate or discriminate against the fed gov

The best way I've found to explain this is to think about driving:

Fed agent runs a red light just because & hits / kills someone? Can probably be prosecuted for vehicular homicide.

Fed agent runs the red light because he was pursuing a fleeing suspect as part of his job? He's probably protected

The main question is whether these laws violate the Supremacy Clause of the U.S. Constitution, which says that federal law is supreme & protects fed agents from some state laws that interfere with the fed government's operations. But fed agents DO NOT have absolute immunity from all state laws 3/

I wrote about this in depth for @uwlawdemocracy.bsky.social but I'm summarizing the tl;dr version in this thread. Of course for more citations etc etc, check out the longer piece. 2/ statedemocracy.law.wisc.edu/featured/202...