As Congress struggles to make a deal on reforms to the Department of Homeland Security, states are taking matters into their own hands — and risking a showdown with the Trump administration in court.
Democratic state legislators in Vermont, Washington, New Jersey and more have introduced legislation to put limits on Immigration and Customs Enforcement, mirroring some of what congressional Democrats hope to accomplish nationwide during talks over funding DHS.
The Trump administration is already threatening a legal battle.
“Sanctuary politicians attempting to ban our federal law enforcement from wearing masks is despicable and a flagrant attempt to endanger our officers,” DHS spokesperson Lauren Bis told NOTUS in an email. “To be crystal clear: we will not abide by unconstitutional bans. The Supremacy Clause makes it clear that state politicians do not control federal law enforcement.”
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Legislators are pushing forward. The Vermont Senate approved a bill that would prohibit ICE arrests at “sensitive locations” such as hospitals, schools and government buildings.
“We took testimony last year, and there were people who were not sending their children to school, were not seeking cancer treatment, were not going to access case management services because they were afraid,” Vermont state Sen. Tanya Vyhovsky, who introduced the bill, said. “It’s trying to add those protections and those guardrails so that people can go about their day-to-day lives with less fear.”
The Vermont Senate also approved a bill that would require local, state and federal law enforcement to identify themselves and ban them from wearing masks unless in hazardous situations.
Vyhovsky told NOTUS that “general fear and people really wanting accountability was the trigger” for this legislation.
“There’s just something very unsettling about having masked people pull people off the streets and busting down doors and doing whatever else they do,” Vermont state Sen. Seth Bongartz, a co-sponsor of the bill, told NOTUS. “There’s no reason in the world that people in law enforcement need to be wearing masks.”
Washington state senators are also aiming to limit masked agents, proposing a bill that would prohibit local, state and federal law enforcement from wearing masks or other types of face coverings unless needed to protect against exposure to any toxins or harm.
“We’re all better off if people who are given a badge and a gun and the ability to be law enforcement are bound by the rule of law, and not by whatever their own ideas are,” Washington state Sen. Jamie Pedersen told The Daily at University of Washington.
State legislators in New Jersey introduced a bill package Feb. 24, which passed through the Assembly panel and the Senate Judiciary Committee, that will strengthen protections against ICE in the state.
“The bills we are introducing will go beyond protecting our immigrant communities. They will protect our civil liberties and ensure federal officers work with, not against, our communities,” Assemblywoman Annette Quijano, who helped introduce the bills, said in a statement earlier this month. “No one is above the law, but everyone, including immigrants, deserves due process, fairness, and the chance to work towards the American dream.”
If state legislation to limit ICE becomes law, it is likely to be challenged by the federal government. The Justice Department has sued New York, Minnesota, Los Angeles and New Jersey over other measures meant to put restraints on federal immigration activity.
“The Department of Justice will not tolerate the obstruction of lawful efforts to enforce federal immigration law and has sued several jurisdictions over dangerous sanctuary policies that put the American people at risk,” a spokesperson told NOTUS in an email. “The Department will continue to bring litigation against willful offenders and work overtime to ensure these harmful policies are eradicated across the country.”
Vyhovsky, the state senator, said the Vermont bills could not be framed as discriminating against immigration agents because the limits apply to all law enforcement on the local, state and federal levels. A law in California was blocked by a federal judge because it targeted immigration agents and did not include state law enforcement.
“I think our bill is much stronger,” Vyhovsky said. “I anticipate there would be a court challenge, and a lot of this is sort of untested, so we’ll have to see.”
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