Trump administration sues new Jersey governor over ICE mask ban

The Trump administration on Wednesday sued New Jersey’s governor and attorney general over a state law that bars law enforcement officers, including Immigration and Customs Enforcement agents, from wearing masks while on duty.

New Jersey Gov. Mikie Sherrill signed legislation last month that requires ICE agents to clearly identify themselves and prohibits them from shielding their faces during enforcement actions. Department of Homeland Security officials immediately said that agents would continue wearing masks despite the state law.

On Wednesday, the Justice Department backed up that vow with a legal challenge. It is at least the second time the Trump administration has sued to overturn immigration policies enacted by Sherrill, a Democrat who has harshly criticized President Donald Trump.

The new suit argues that New Jersey’s anti-mask law violates the U.S. Constitution and opens agents and their families to online harassment and violence. The Justice Department filing also said that it was essential for ICE agents to maintain anonymity so that they could retain an element of surprise in “future enforcement.”

“Because suspects who recognize officers may take preemptive actions to evade apprehension and obstruct enforcement efforts, masking is critical for maintaining operational effectiveness,” the suit states.

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That is precisely the type of anonymous enforcement that Sherrill said she aimed to prevent when she signed the bill into law.

“In the United States of America, we’re not going to tolerate masked, roving militias pretending to be well-trained law enforcement agents,” Sherrill said last month.

On Wednesday, the governor said it was reasonable to expect all law enforcement officers operating in New Jersey to enforce the law in a transparent way.

“If ICE cannot meet our standards here, which are admittedly very high, then they shouldn’t be operating here,” Sherrill said in a brief interview.

The Justice Department has argued that New Jersey lacks the constitutional clout to enforce the law, citing a doctrine known as the supremacy clause. The clause prohibits state officials from prosecuting federal officers when they are reasonably acting in their official capacity.

“Such blatant disregard for the Constitution is not merely a political statement, but is instead deliberate action that jeopardizes the public safety of all Americans,” Justice Department lawyers wrote.

The state’s attorney general, Jennifer Davenport, said she looked forward to responding to the Justice Department’s legal challenge in court.

“The federal government still cannot explain when its officials need to mask or forgo identification in violation of this law, or why they actually need to do so, particularly given the serious safety concerns inherent in anonymized policing,” Davenport said in a statement.

Masking, she said, undermines “public trust and accountability,” and makes it “easier for criminals to impersonate our officers.”

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• WA police mask ban approved by lawmakers, heads to governor (March 9)
• U.S. attorney, DHS say ICE won’t comply with California’s new mask ban (Sept. 22)

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California last year became the first state in the country to try to bar federal and local police officers from wearing face coverings. In February, a federal judge invalidated parts of that law, but suggested that a ban that also included state police officers would be constitutional.

New Jersey and Washington state later adopted laws that prohibit all local, state and federal officers from wearing masks in most situations. Democrats in at least 17 other states, including New York, have introduced similar bills, according to the National Conference of State Legislatures.

Bridget Lavender, a lawyer who has researched mask bans for the University of Wisconsin Law School’s State Democracy Research Initiative, said that most case law tied to the supremacy doctrine was old and largely dated.

The Justice Department’s lawsuit, she said, is likely to hinge on whether judges see New Jersey’s mask ban as “improper control” of a federal agency, which could be unconstitutional, or whether they interpret the law as having only an incidental effect on immigration officers.

“Federal officials do not have blanket immunity from state laws,” Lavender said. “So the question is: What laws are seeking to control them? What laws go too far?”