Fourth Circuit Hears Virginia ICE Mask, 287(g) Laws Challenge

• Virginia is appealing a federal court injunction that blocked two state laws regulating federal immigration enforcement activities.
• One state law prohibits federal immigration officials from wearing masks, while the other restricts local cooperation with ICE through 287(g) agreements.
• A district judge ruled the laws likely violate intergovernmental immunity, the U.S. Constitution's Supremacy Clause, and the Contracts Clause.
• State attorneys argue the laws do not directly regulate federal entities and are within Virginia's right to decline federal enforcement.
• Federal attorneys contend states can only regulate federal operations if Congress authorizes it, and the mask law discriminates against federal officers.

The outcome of this appeal before the Fourth Circuit will establish a significant precedent regarding the extent to which individual states can impose regulations on federal law enforcement operations, particularly concerning the principles of intergovernmental immunity and the Supremacy Clause.

The Fourth Circuit Court of Appeals recently heard arguments regarding Virginia's attempt to reinstate two state laws aimed at regulating federal immigration enforcement activities within its borders. These laws, which were enacted to address concerns about rising misconduct in federal operations, were previously blocked by a federal district court judge. The state is seeking to lift a preliminary injunction that prevents the enforcement of a measure prohibiting federal immigration officials from wearing masks and another statute that limits the ability of local jurisdictions to enter into cooperation agreements with U.S. Immigration and Customs Enforcement (ICE).

U.S. District Judge Robert Payne, appointed by George H.W. Bush, issued the injunction at the request of the federal government. Judge Payne determined that the law banning masks for ICE officials likely infringes upon the doctrine of intergovernmental immunity and the U.S. Constitution's Supremacy Clause. Furthermore, he concluded that the law imposing restrictions on ICE's ability to form 287(g) agreements with localities likely violates both the Contracts Clause of the U.S. Constitution and the intergovernmental immunity doctrine. The state's appeal to the Fourth Circuit seeks to overturn these findings and allow the laws to take effect.

During the Fourth Circuit hearing, state attorney Tillman Breckenridge asserted that Virginia's law concerning 287(g) agreements primarily regulates ICE officials, not the localities themselves. This particular statute mandates that ICE refrain from enforcement actions at sensitive locations such as schools, churches, and polling places, and also prohibits the use of surveillance technology. Additionally, it bars federal assistance in immigration operations unless a valid judicial warrant, subpoena, or detainer is presented. Breckenridge contended that the law imposes "absolutely nothing from any member of the federal government," thereby not regulating federal entities directly. He maintained that the Commonwealth possesses the inherent right to decline participation in federal law enforcement, arguing that the 287(g) law is lawful and its preliminary injunction should be vacated.

Regarding the Virginia ICE mask law, Breckenridge insisted it does not constitute a regulation because it does not impede the federal government's capacity to execute its duties. U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, challenged this perspective by inquiring whether the state could regulate the body armor worn by ICE officials and asked for any judicial precedent supporting a state's regulation of federal officers while they perform federal duties. Breckenridge responded that the determination hinges on whether a policy is sufficiently burdensome to prevent federal officials from performing their duties, thus qualifying it as a regulation. He acknowledged an inability to identify a decision where something not stopping the government "in its tracks" was deemed a regulation.

Federal attorney Megan Owen countered that states are only permitted to regulate the federal government when explicitly authorized by Congress. When Judge Heytens posed a hypothetical about United States Postal Service employees adhering to speed limits, Owen clarified that if their responsibilities necessitated speeding, they could not be prosecuted. Breckenridge seized on this point, suggesting it illustrated a shared standard for assessing whether an activity, such as not wearing a mask, unduly burdens federal officials. Owen further argued that the mask law is discriminatory, specifically targeting the conduct of ICE officials, asserting that Virginia lacks the authority to directly and expressly target federal law enforcement officers. Breckenridge, however, disputed any discriminatory intent, characterizing the mask law as one of general applicability, an exception to a broader state law that prohibits masking for all individuals, including law enforcement.

The outcome of this appeal before the Fourth Circuit will establish a significant precedent regarding the extent to which individual states can impose regulations on federal law enforcement operations, particularly concerning the principles of intergovernmental immunity and the Supremacy Clause. The case highlights the ongoing tension between state sovereignty and federal authority in areas of concurrent jurisdiction, such as immigration enforcement. The court's decision will clarify the boundaries of state power to influence or restrict the activities of federal agents operating within their borders, especially when those activities are conducted under federal programs like the 287(g) agreements.

The challenge to the 287(g) agreements state regulation is particularly noteworthy given the widespread nature of these partnerships. The Department of Homeland Security reports that there are over 2,600 such agreements in place, underscoring the potential impact of this ruling on federal-local cooperation nationwide. A ruling in favor of Virginia could empower other states to enact similar restrictions on federal operations, while a decision upholding the injunction would reinforce the federal government's position on its operational autonomy. This case will be closely watched by legal professionals advising both state and federal entities on immigration policies and intergovernmental relations.

This case will set a precedent regarding the extent to which states can regulate federal law enforcement operations, particularly concerning intergovernmental immunity and the Supremacy Clause. Lawyers advising state or local governments on immigration policies, or federal agencies on operational compliance within states, should monitor the Fourth Circuit's decision for clarity on the boundaries of state authority over federal agents and cooperation agreements like 287(g).

Source: Reporting based on Associated Press and CN coverage.