ICE, Virginia square off at Fourth Circuit over masks, local cooperation

The state hopes to lift a block on two laws that prohibit federal immigration officials from wearing masks and limit localities' ability to cooperate with ICE.RICHMOND, Va. (CN) — Virginia defended a pair of laws enacted to combat rising misconduct in federal immigration enforcement operations before the Fourth Circuit on Tuesday.​The hearing follows U.S. District Judge Robert Payne, a George H.W. Bush appointee, haltingenforcement of the newly passed laws at the federal government’s request. Payne held that a law prohibiting U.S. Immigration and Customs Enforcement officials from wearing masks likely violates the intergovernmental immunity doctrine and the U.S. Constitution’s supremacy clause.Payne also determined a law requiring ICE to comply with restrictions to enter into cooperation agreements with localities, commonly called 287(g) agreements, likely violates the contracts clause of the U.S. Constitution and the intergovernmental immunity doctrine.​State attorney Tillman Breckenridge argued the law on cooperation agreements regulates ICE officials rather than localities. The law requires ICE to refrain from enforcement actions at schools, churches and polling places, and the use of surveillance technology. The law also bars the feds from assisting in immigration operations unless presented with a valid judicial warrant, subpoena or detainer.​"The law requires absolutely nothing from any member of the federal government, so it’s not regulating the federal government in any way," Breckenridge told the three-judge panel. “The commonwealth has every right to choose not to engage in enforcement of federal law, the 287(g) law is not unlawful and the preliminary injunction against it should be vacated.”​Breckenridge also insisted the masking law does not amount to a regulation because it does not stop the government from executing law. U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, asked whether the state could regulate the body armor ICE officials wear.​"Can you identify one judicial decision that has ever upheld a state’s regulation of federal officers while they are performing federal duties?" Heytens asked.​Breckenridge replied that it depends on whether the policy was burdensome enough to prevent the federal government from doing its duty, thus making it a regulation.​"I can’t identify a decision that’s found that something that doesn’t stop the government in its tracks constitutes a regulation of the federal government," Breckenridge said.​Federal attorney Megan Owen said states can regulate the federal government only if Congress authorizes them. Heytens asked whether United States Postal Service employees have to follow speed limits.​"If something about their responsibilities required them to speed, you could not prosecute them," Owen said.​Breckenridge said that answer illustrates how a court must weigh whether the activity, in this case not wearing a mask, sufficiently burdens the federal officials’ ability to do their job.​"It sounds like we have the same standard," Breckenridge said.​Breckenridge said nothing about immigration officials’ duties requires them to be anonymous. Owen also argued the mask law is discriminatory because it targets ICE officials’ conduct.“This law directly and expressly targets federal law enforcement officers, and Virginia is not allowed to do that,” Owen said.Breckenridge disputed the discriminatory intent.​"The mask law is a law of general applicability," Breckenridge said. “It’s an exception to a law that applies to every single person in the commonwealth, including law enforcement, that says that you cannot engage in masking.”​The Department of Homeland Security reports that over 2,600 287(g) agreements exist across 38 states and two U.S. territories. Virginia Democratic Governor Abigail Spanberger issued an executive order in February dissolving cooperation agreements with state law enforcement.​U.S. Circuit Judge DeAndrea Gist Benjamin, a fellow Biden appointee, and U.S. Circuit Judge Robert King, a Bill Clinton appointee, completed the panel. The state attorney general’s office declined to comment, and the Justice Department did not respond to an inquiry.​Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads