Can Vermont do anything about how federal agents conduct themselves in the state?
Several top Democrats in the Legislature say they think so. And with a U.S. Immigration and Customs Enforcement agent’s killing of a U.S. citizen prompting fresh protests against President Trump’s immigration crackdown, they say it’s their responsibility to try.
Sen. Nader Hashim, who chairs the Senate Judiciary Committee, said two bills now before his committee have prompted more emails from his constituents than anything else this session.
“Vermonters are scared of what they are seeing happen around the country,” the Windham County Democrat said.
One bill, S. 208, would require law enforcement — local, state and federal — to identify themselves and prohibit them from wearing masks, except in certain hazardous circumstances. The other, S. 209, would prohibit civil arrests, which include immigration arrests, in certain “sensitive locations,” such as government buildings, schools, shelters and health care facilities.
Blue states across the country are exploring similar restrictions. But it’s unclear whether which ones, if any, will hold up in court.
The proposals in Vermont would almost certainly face legal challenges if enacted into law, Jessica Bulman-Pozen, a constitutional law professor at Columbia Law School, told state lawmakers at a hearing last week. But she said the state could make “compelling arguments as to their constitutionality.”
Bulman-Pozen told Vermont lawmakers it was important their legislation not carve out any state or local law enforcement agencies, or else Vermont could be vulnerable to discrimination challenges.
Another potential argument, she said, would be that the laws represented an attempt to directly regulate the federal government.
“Here, there are hard questions,” Bulman-Pozen said.
In a century-old, landmark case, the U.S. Supreme Court ruled the state of Maryland could not require a federal postal worker to get a state-issued driver’s license. But justices also said this worker needed to follow the rules of the road.
Vermont could make a “strong argument,” said Bulman-Pozen, that the bills would not “control federal actors” or prevent them from carrying out their duties, but instead “more narrowly affect the mode of how all law enforcement actors do their work.”
Constitutionally, federal law overrides state law. But, she said, there are no federal laws allowing federal agents to disguise themselves, or dictating that they arrest immigrants at hospitals or schools.
Vermont Attorney General Charity Clark — a Democrat who has eagerly joined dozens of multi-state lawsuits against the Trump administration — has not yet embraced the efforts to restrict how ICE agents operate. Her office said in a statement last week they were “reviewing the legislative proposals with careful consideration,” and encouraged lawmakers to consult state law enforcement officials.
Vermont’s law enforcement establishment has expressed little enthusiasm about the legislative effort. Vermont Public Safety Commissioner Jennifer Morrison asked lawmakers to tell the state’s Criminal Justice Council to adopt a policy on the matter, instead of putting it in statute.
Morrison acknowledged such a policy wouldn’t constrain federal law enforcement, — but a state law might not either, she said.
“I would imagine they have something related to qualified immunity or other protections if they're in the furtherance of their official duty,” she said.
The mask ban legislation envisions a civil fine of up to $1,000. Christopher Brickell, the executive director of the Vermont Criminal Justice Council, told the judiciary committee that local police might hesitate to issue penalties against their federal peers.
“You would also be pitting law enforcement against law enforcement, essentially. And I think that would be problematic,” he said Friday.
Republicans on the judiciary committee have been skeptical of the effort.
“I think we’re overstepping our boundaries,” Franklin County Sen. Robert Norris, a former sheriff, told his colleagues.
For now, the bills continue to have the strong backing of Senate President Pro Tempore Phil Baruth. The Chittenden County Democrat/Progressive said last week that while “it’s always dicey to face off against the federal government,” he thinks Vermont has no choice but to fight back.
“You don't save yourself by remaining quiet,” the Senate leader said. “You create conditions under which others suffer, and then you eventually suffer anyway.”
