Immigration Article of the Day: Can States Force ICE to Take Off the Masks? by Noah Chauvin

Noah Chauvin just joined my faculty at the University of Oklahoma College of Law. We plucked him from Widener Law Commonwealth (suck it, Jill Family). Kidding, obviously. But we’re thrilled to welcome Noah to Norman.

As it turns out, Noah has a new piece at the intersection of Con Law & Immigration: Can States Force ICE to Take Off the Masks?. Check out the introduction:

As the federal government has pursued President Donald Trump’s aggressive immigration policy, images of masked Immigration and Customs Enforcement agents seizing people off of the streets have become a potent symbol of the administration’s disregard for democratic and legal norms. While government officials claim that ICE agents must mask to protect themselves from violence and harassment, critics maintain that the practice helps immigration officials dodge accountability and actually makes them less safe. Responding to these concerns, lawmakers across the country have introduced legislation intended to prevent ICE agents from covering their faces while on duty.

Four of these bills, introduced by congressional Democrats, are unlikely to advance through a Republican-controlled Congress. (Indeed, some congressional Republicans are attempting to provide ICE agents with greater anonymity.) Bills under consideration in several Democrat-controlled states and localities, however, are much more likely to become law—though they would likely be quickly struck down by the courts as violating the Constitution’s Supremacy Clause. But that does not mean that states are powerless to confront this problem.

This essay proceeds in four parts. Part I provides a brief summary of the Supremacy Clause and the ways in which it has been used to strike down state laws purporting to regulate federal activity. Next, Part II details the bills introduced by state legislators prohibiting federal law enforcement officers from masking, and explains why those bills, if enacted, would be unconstitutional. Part III outlines alternative steps state and local officials can take to discourage ICE from masking. Finally, Part IV provides best practices for stand local lawmakers seeking to legislate in this area.

I’ve been thinking about the masks as they appear prominently in the photographs I highlighted on Sunday covering arrests at immigration court. Noah’s article is an excellent primer on the issues surrounding state efforts to unmask immigration agents.

-KitJ