Politicians at all levels of government have called for reforms to ease tensions arising from federal immigration enforcement in states. One popular proposal is to ban the wearing of masks by law enforcement officers, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection officers.
In January, the U.S. District Court for the Central District of California made headlines when it issued a preliminary ruling that states can constitutionally ban federal law enforcement officers from wearing masks as long as they do not discriminate against federal employees in the process. This ruling was the first in Japan to consider the constitutionality of a national mask ban.
But this problem is almost certain to occur in other courts across the country. In addition to California, lawmakers in at least 30 other states have introduced, considered, voted on, and even passed similar bills. For example, New Jersey, Oregon, and Washington all passed mask bans earlier this year. Local bans have been passed in Los Angeles County, California, and St. Paul, Minnesota.
The federal government argues that these laws are unconstitutional and that states cannot ban federal employees from wearing masks. The argument stems primarily from the doctrine of intergovernmental immunity, a cumbersome and controversial rule derived from the Supremacy Clause of the U.S. Constitution. This section provides that federal law is supreme and supersedes any conflicting state law. To give effect to this provision, the U.S. Supreme Court granted federal officials certain immunity from lawsuits by state laws that interfere with the operations of the federal government.
This makes sense. The lawful operations of the federal government could be hindered if states were able to regulate or prosecute federal employees who are lawfully and reasonably carrying out their duties. However, contrary to recent claims by the federal government, federal employees do not have “absolute immunity” from all state laws. Instead, the intergovernmental immunity doctrine prohibits only state and local laws that:Either directly regulate the United States or Discriminating against the federal government or persons with whom the federal government does business. ”
The second issue, discrimination, is where California’s mask ban failed in court. The ban applies to federal law enforcement officers, but not to California law enforcement officers. As the U.S. Court of Appeals for the Ninth Circuit explained last year, “a state law or regulation constitutes impermissible discrimination against the federal government when it favors a state agency over an equivalent federal agency.” Because California law does so, the district court held that the federal government is entitled to a preliminary injunction barring enforcement of the ban for the time being.
Importantly, however, the court found that while California’s mask ban failed from a discrimination standpoint, it held up from a direct regulatory standpoint. In other words, the court suggested that California’s law is constitutional if it also applies to state law enforcement agencies. This is welcome news for other states considering their own mask bans, most of which apply their laws to all levels of law enforcement and avoid discrimination issues.
Nondiscrimination laws are unconstitutional under intergovernmental immunity if they “directly regulate” the federal government. In contrast, laws that only incidentally affect the federal government are constitutionally applicable. Relying on the district court’s reasoning in the California case, states can make a strong case that a ban on wearing masks as a routine practice does not directly regulate the operation of the federal government.
In California’s lawsuit, the federal government argued that California’s mask ban regulates federal employees because it “prohibits or imposes a requirement” on them. The government also argues that a mask ban would “impair law enforcement operations” and that investigators would see an increase in assaults and doxxing (publicly disclosing personal information such as one’s home address or the identities of family members). In the government’s view, this amounts to regulation because it can have a chilling effect on federal employees and increases the risk that suspects will be able to identify and evade federal agents. Therefore, masking is necessary for ICE officers to perform their duties, and prohibiting masking constitutes direct regulation, the report said.
But the U.S. District Court for the Central District of California, the only court currently considering the issue, rejected the government’s argument that the ban amounted to regulation. The court found that California’s mask ban is “similar in a similar sense to the traffic laws that govern how federal employees may operate vehicles on state highways, but is still enforceable against federal employees.” The court made this decision because the Department of Justice found that “current masking and identification practices have not been shown to be essential to federal law enforcement operations.” The court concluded that the federal government “failed to adequately explain how its discretionary masking and identification policies are essential to the operations and safety of federal law enforcement agencies.”
The court disagreed that masks were required for safety reasons. The safety concerns raised by the government “also exist for federal law enforcement officers, whether or not they wear masks,” the court said. Indeed, “the presence of masked, unidentified persons, including law enforcement, is likely to increase a sense of anxiety for everyone,” and the court noted that the alleged harm “is the result of criminal conduct.” The state’s mask ban “does not encourage or enable criminals to harm law enforcement officers,” and disclosure of personal information and assault will remain illegal even if the ban is in place.
Other courts may reach similar conclusions. There is no evidence that masking reduces the likelihood of assault. Nor does it appear that today’s ICE officers are at any greater risk of assault than in years past. In fact, based on available data, 2025 was the second safest year for Border Patrol and ICE agents, and safer than any year since 2015, according to the CATO Institute. Former Homeland Security Secretary Kristi Noem claimed that assaults by federal agents increased by 1,300 percent in 2025, from 19 in 2024 to 275, but so did the number of ICE agents on the ground and the amount of enforcement activity. It has increased significantly during this time. Additionally, because assault numbers depend on officers reporting assaults, the increase may reflect changes in how assaults are defined and reported. The government has publicly argued that ICE law enforcement videotaping constitutes “violence” against ICE officers. Recent “assault” claims include ICE “arm-in-arm with a man” who was trying to detain him, asking to see a warrant, leaving trash on an officer’s lawn, and creating signs with profanity targeting officers.
Additionally, the government has not provided any public data on how much personal information ICE officers are actually subjected to or whether masking reduces risk. However, the California court noted that “the historical tradition of law enforcement officers not concealing their identities and the current practice of some federal employees who choose to wear masks and reveal their identities alongside their co-workers” undermined the Justice Department’s argument that concealment was necessary for this reason. This is the same point that constitutional scholar Erwin Chemerinsky made in defending California’s mask ban. “ICE agents have never previously worn masks when arresting people, and it has never been an issue. Nor have other local, state, or federal law enforcement agents been put at risk from the public by not wearing masks on the street.” Indeed, the federal government’s failure to require all agents to wear masks suggests that a mask ban is not necessary and does not substantially interfere with federal policy or prerogatives.
A recent case in the U.S. Court of Appeals for the Fifth Circuit further supports the argument that anti-masking laws are not worthy of regulation. In 2024, the Fifth Circuit rejected the federal government’s invocation of intergovernmental immunity when Texas brought common-law conversion and trespass claims against federal Border Patrol agents. Officials cut coiled razor wire fencing that the state had installed along part of its border with Mexico. The Biden administration argued that removing the wires was necessary to fulfill the statutory duties of border security officials and that the Texas lawsuit was invalid under intergovernmental immunity because it sought to directly regulate federal government operations.
The Fifth Circuit disagreed. The “key question” regarding the regulation, the court explained, “is whether a state law seeks to unreasonably ‘control’ an employee’s federal duties, or whether the law merely ‘may incidentally affect the manner in which employment is conducted.'” Even though the Texas case affected the way federal employees performed their jobs and “imposed a burden on them,” intergovernmental immunity was not called into question because the impact and burden were mere. incidental to the accomplishment of federal policy.
Similarly, failure to mask does not prohibit ICE from conducting any aspect of its operations. It only prohibits them from concealing their identity during their activities.
To be sure, there is an argument that the mask ban is in some sense a federal regulation. But the same is true of countless other state laws that federal employees have followed for centuries. The real question is how much of a burden this regulation is putting on their ability to do their jobs.
There is no obvious “right” legal answer to this question. Case law is vague, and much of the relevant case law is decades (or even a century) old, and this scenario raises new and novel legal considerations. A federal district court in California issued a preliminary judgment, but its decision is not binding on other federal district courts. In other words, the doctrine remains unresolved and may be debated again in trial courts, appellate courts, and ultimately the Supreme Court. But for now, the mask ban presents an opportunity to counter supremacy clauses and intergovernmental immunity challenges.
Bridget Lavender is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin School of Law.
Recommended citation: Bridget Lavender; Can states ban federal employees from wearing masks?Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 20, 2026), https://statecourtreport.org/our-work/analysis-opinion/can-states-ban-federal-officers-wearing-masks
