A two-hour debate between moral conscience and the rule of law ended Tuesday when House lawmakers narrowly defeated a proposal that would have banned federal immigration agents from wearing face masks while carrying out official duties in Vermont.
The Vermont Senate passed legislation in February that prohibited all law enforcement officers, including federal officers, from wearing facial coverings, with some exceptions related to safety.
The proposal was on track to clear the House until last month, when the United States Court of Appeals for the Ninth Circuit struck down a similar law in California. South Burlington Rep. Martin LaLonde, the Democratic chair of the House Judiciary Committee, said the court’s legal rationale was “very solid.”
“Almost every consequential thing this body is remembered for faced legal uncertainty when we passed it."Montpelier Rep. Conor Casey
LaLonde said elected officials swear an oath to uphold the Constitution. And while he’s concerned about tactics employed by Immigration and Customs Enforcement agents, he said that lawmakers can’t responsibly pursue a remedy that would “almost certainly be deemed unconstitutional.”
“I happen to agree that federal law enforcement should face restrictions on when they can conceal their identities,” LaLonde said. “But I believe that no state, including Vermont, can impose such restrictions on the federal government consistent with the Constitution.”
The Judiciary Committee stripped the Senate bill of any provisions related to federal agents. When the legislation came up for a vote on the House floor Tuesday, Winooski Rep. Daisy Berbeco offered an amendment to put them back in.
“I want you to have a choice to make sure that in Vermont, when armed individuals are exercising law enforcement power over members of the public with your tax dollars, we know who they are,” she told House colleagues. “That should not be controversial.”
Berbeco, a Democrat, said residents in her district, one of the most diverse in the state, have been targeted by masked federal agents conducting immigration enforcement operations.
“This is one of those moments where I think our constituents are less interested in procedural arguments, and they’re more interested in whether us as elected officials are willing to respond to what they’re experiencing,” she said.
According to recent testimony from constitutional scholars such as Rodney Smolla, a professor at Vermont Law and Graduate School, a state-level ban on masking by federal agents would violate legal doctrine that prohibits states from “directly regulating” federal agencies or their officials.
“Any attempt by Vermont to regulate the policies of federal law enforcement agencies, or to prosecute individual federal officers who are following the masking instruction of their agencies, would be adjudged by courts constitutionally impermissible,” Smolla said.
Montpelier Rep. Conor Casey, a Democrat, said legal doctrines only evolve when states enact statutes that challenge convention. Connecticut recently passed a law that bans ICE from wearing face masks, and New York appears poised to follow.
“If this body had waited for every constitutional question to be fully settled before acting, we never would have led on civil unions,” Casey said Tuesday. “Almost every consequential thing this body is remembered for faced legal uncertainty when we passed it. We acted because we believe something was right, and this moment calls for that same courage.”
LaLonde said he’s not opposed to pushing the legal envelope – when the state has a credible case. He noted that the House has passed legislation this year that would prohibit federal agents from making civil arrests in sensitive places, and that would allow Vermonters to sue federal officers for violating their constitutional rights.
Berbeco’s amendment failed by a vote of 65-77. A majority of Democrats voted in favor, and six Republicans joined them. The House then gave approval to the underlying bill, which calls for the creation of a masking policy and identification protocols for state and local law enforcement agencies.
Windham County Sen. Nader Hashim, the Democratic chair of the Senate Judiciary Committee, said he’s seen “persuasive arguments on both sides” of the debate over the constitutionality of the federal masking ban.
Hashim said he hasn’t yet decided whether he’ll reintroduce provisions related to federal agents.
