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

Many of us remember our days in law school. Gideon vs. Wainwright explored and celebrated. Some of us may be interested enough to want to read this wonderful book. gideon Stories from Anthony Lewis’ books Gideon’s Trumpet. Lewis walks us through a story involving a flawed trial in which Clarence Earl Gideon served as defense attorney and resulted in a guilty verdict. The story continues with the routine affirmation of his conviction in the appellate court, the filing of a typically long and confusing handwritten attorney certification application prepared by Gideon, and the U.S. Supreme Court’s unusual recognition of the fundamental issue of right to counsel buried in Gideon’s amateur petition, leading to the court agreeing to hear the case. Lewis described the appointment of Abe Fortas as Gideon’s advisor and court briefs by more than 20 states supporting Gideon, spearheaded by a young Minnesota attorney general named Walter Mondale. The story ends with Judge Hugo Black’s brilliant opinion for a unanimous court declaring that the U.S. Constitution requires state courts to appoint attorneys for criminal defendants who cannot afford one, and Gideon’s swift acquittal at a retrial represented by a competent local criminal defense attorney.

gideonof course, this is based on the Sixth Amendment’s inclusion of the right to sue states through the Fourteenth Amendment’s Due Process Clause. But the proposal, which was unanimously accepted by all members of the Supreme Court in 1963, could be threatened by the current court. The majority of the Court’s current members appear committed to two propositions: full support of the originalist model of constitutional interpretation and the consequent dramatic collapse of the stare decisis doctrine. It is also clear that some Labor majority members have doubts about this issue. gideon framework. In other words, gideon Although this law is more than 60 years old and has been cited hundreds of millions of times, I fear that it cannot be considered settled law because, in the opinion of the majority of originalists, it has not been properly resolved.

There are other challenges to ensuring the right to robust counseling across the country. meanwhile gideon Although it required states to respect the right to counsel in state criminal proceedings, it did not directly address systemic deficiencies that arise, for example, when appointed attorneys are so overwhelmed with cases that it is humanely impossible for them to do a thorough job in each plea. Courts must respond to these realities by building on and expanding: gideonThis principle is designed to ensure that institutional barriers, such as insufficient staffing or funding for public defenders, do not deprive the public defender of effective support.

Given the current Supreme Court majority’s emphasis on the right to counsel, originalism, and stare decisis, federal courts may not be the best place to develop this law. That’s why I decided to conduct a comparative study of state and federal laws related to the right to counsel that address both case-specific and systemic deficiencies. Although my findings rely on and cite the work of many judges, scholars, and observers, University of Missouri-Kansas Law Overview. The most important lesson is that asserting your state law right to an attorney is worth careful consideration for myriad reasons.

First, many states developed a state constitutional right to counsel long before the U.S. Supreme Court handed down its decision. gideon. for example, Powell vs. Alabama In 1932, a case held that the Fourteenth Amendment’s Due Process Clause required criminal defendants to be given reasonable time and opportunity to obtain an attorney. It relied heavily on the evolving rights of attorneys under state constitutions as applied by state courts. Historically, many state courts protected the right to counsel earlier than many people imagined. nevertheless Powell and after that gideon These are major federal cases, and the defense principles articulated therein can be strengthened and expanded through vigorous advocacy by state courts that apply the defense rights provisions of state constitutions.

Second, apart from the right to attorney provision, there are other sources of right to attorney law in the typical Bill of Rights provisions of state constitutions. For example, many state constitutions have unlimited due process clauses that ensure basic fairness and may require the presence of effective counsel in a variety of situations. Some have quasi-equivalent protection provisions that may apply in the context of a right to an attorney. The equality doctrine could require courts to appoint lawyers to people who cannot afford one. Additionally, the state constitution’s positive natural law provisions governing life, liberty, and the pursuit of happiness are underdeveloped, but could be interpreted to require state governments to take affirmative steps to ensure adequate legal representation in criminal cases. Because the court does not have a federal counterpart, it is less likely to rely on the restrictive interpretation of federal courts to limit the scope of its jurisdiction.

Third, state constitutions typically give the state judiciary the authority to oversee the court system and the lawyers who practice in state courts. These powers may be explicitly built into a state’s constitutional structure, or they may be inherent. For example, state judiciaries typically have unrestricted constitutional authority to promulgate regulations related to local practices. Some states have open court and right-to-redress provisions that creative advocates can use to expand their influence over lawyers. In short, the generally accepted authority of state judicial authorities to oversee and control what happens on a day-to-day basis in state courts provides a potential basis for vindicating the right to counsel separate from frozen or devolved federal constitutional precedent.

Fourth, today’s state judicial authorities are generally responsible for maintaining and enforcing a system of legal ethics for lawyers practicing within their states. More than a decade ago, Norman Levstein argued for the enforcement of ethics codes in the context of organized defense. Recent state case law suggests that enforcement of right-to-attorney requirements through the application of ethical standards is being closely considered. for example, Public Defender in Marion County, Oregon. Isel Guajardo McClintonthe plaintiffs alleged that caseloads and severe understaffing forced public defenders to engage in defense work with a lack of diligence, in violation of the Oregon Rules of Professional Responsibility. The case was dismissed as an issue after the public defender at the center of the case retired, but in February an Oregon judge ruled: Shannon Wilson v. Oregon Public Defense Commission Public defenders cannot be required to take on more cases than they can properly handle.

Finally, there are also a number of relatively recent and important empirical developments that may strengthen claims of the right to an attorney in both state and federal courts. The persistent point made by the Innocence Project and similar groups across the country that wrongful convictions are all too common is worrying across ideological lines. New empirical research suggests that public defender caseloads place extraordinary pressure on the granting of substantive legal representation rights, which is likely to lead to wrongful convictions. Plaintiffs in recent lawsuits across the country have argued that high caseloads contribute to violations of their rights to counsel, and last June the Washington Supreme Court even ordered public defenders to reduce their caseloads.

State courts and the Constitution can provide meaningful solutions to the lack of a right to an attorney. Now, as the U.S. Supreme Court seeks to undermine the right, it is more important than ever that justices, advocates, and policymakers work to realize that potential.

My lord. Brent R. Appel is a Distinguished Lecturer and Resident Jurist at Drake Law School and a former Justice of the Iowa Supreme Court.

Recommended Citation: Hon. Brent R. Appel The right to counseling in a time of case-specific and systemic deficiencies.Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 15, 2026), https://statecourtreport.org/our-work/analysis-opinion/right-counsel-age-case-specific-and-systemic-inadequacies