- “The real question is whether the federal government chooses to subject its employees to direct state regulation.” – Vikram David Amar
SACRAMENTO, Calif. — Governor Gavin Newsom last week signed SB 627, a law prohibiting California law enforcement officers — federal and state — from covering their faces during public interactions. The measure is already drawing constitutional scrutiny, with legal scholars debating whether the state has the power to impose such restrictions on federal immigration agents.
Writing for Verdict, Justia’s legal analysis and commentary section, Vikram David Amar, a distinguished professor of law at UC Davis, argued that while the bill allows exceptions such as protective eyewear, it is unlikely to withstand constitutional limitations.
Amar explained that, although California has the authority to regulate its own state and local officers, it does not have the power to dictate how federal officials perform their duties unless Congress has authorized it.
That limitation, Amar noted, stems from the Constitution’s Supremacy Clause, which establishes that federal law overrides state law.
In his piece, Amar acknowledged opposing views. UC Berkeley Law Dean Erwin Chemerinsky has argued that states do have some authority to impose laws on federal officers when those laws apply equally to government officers at every level.
Amar cited Chemerinsky’s public commentary supporting SB 627. Chemerinsky wrote, “A state cannot directly regulate the federal government. State and local governments, however, can require that federal employees comply with general laws unless doing so would significantly interfere with the performance of their duties.”
“Wearing masks is not necessary for ICE to perform its functions,” Chemerinsky said. “Law enforcement, including ICE, has long operated without their agents wearing masks.”
“While on the job, federal employees must stop at red lights and cannot violate speeding laws unless doing so would interfere with their jobs,” Chemerinsky added, arguing that the same principle applies to mask requirements.
Chemerinsky also referenced acting ICE Director Todd Lyon’s defense of mask use, who claimed that “officers will be targeted if their identity is known.” Chemerinsky contested this claim, pointing out that no evidence has supported it.
He further cited the Supreme Court case In re Neagle (1890), which held that federal officers were immune from state prosecution when acting under federal authority, and Idaho v. Horiuchi (2000), where the Ninth Circuit addressed limitations of such immunity after a standoff at Ruby Ridge. Chemerinsky concluded that because ICE has no reasonable need for masks, the courts should uphold SB 627.
Amar disagreed, arguing that Chemerinsky “identifies the wrong doctrinal test” and mistakenly suggests California has a chance of enforcing the bill.
Without congressional action, Amar explained, states may not tell federal officers how to perform their duties. He pointed to a 2022 Supreme Court decision, United States v. Washington, which held that states cannot pass laws that either discriminate against or directly regulate the federal government. According to Amar, SB 627 falls into the latter category.
Amar compared SB 627 to a hypothetical state law requiring mail carriers to obtain a driver’s license to deliver mail, a federal job. Such a requirement, he said, would directly regulate federal operations and therefore be unconstitutional.
California does not have the authority to tell federal officials how to do their jobs, Amar argued, because the state is “regulating how the feds do their job, not regulating in their private capacity individuals who happen to work for or with the federal government.”
Amar contends that the real question is “whether the federal government chooses to subject its employees to direct state regulation.” By that framing, Chemerinsky’s argument that federal employees are required to comply with state law is invalid.
He added that even for general laws, “the choice is always up to Congress.” However, the type of evidence needed to support that conclusion may vary widely.
Another factor Amar emphasized is the distinction between civil and criminal state laws, noting that when states attempt to impose criminal liability on federal officers — as in In re Neagle — the constitutional stakes are especially high.
“So too, it might be relevant, in deciding whether the federal government could be said to permit state law to apply to its employees while they are on the job, whether the federal employees are themselves violating federal law in doing whatever it is the state seeks to regulate,” Amar wrote.
Amar also rejected Chemerinsky’s use of Idaho v. Horiuchi as precedent, calling the case “inapposite” because the Ninth Circuit vacated the decision and because the Idaho prosecution alleged the defendant acted outside constitutional bounds. For those reasons, he argued, the matter belongs in an entirely “different category.”
Reframing the issue under the Tenth Amendment, Amar wrote that if ICE’s mask use is considered an exercise of federal power, then California has no authority to prohibit it. Unless Congress acts to make federal employees subject to state regulation, he said, the bill is unlikely to survive.
For Amar, the conclusion is straightforward. Because there is no evidence Congress intends ICE to follow state rules about enforcement practices, SB 627 cannot stand.
“Until that changes, the (im)permissibility of California’s law doesn’t seem like a question at all,” Amar wrote.
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