A recent federal appeals court ruling that blocked the enforcement of a California law requiring federal agents to display identification has cast doubt on the future of a similar Oregon law that also prohibits law enforcement operating in the state from wearing masks.
A panel of the 9th Circuit Court of Appeals in late April blocked California’s law applying to federal, state and local law enforcement and requiring them to display their agency and name or badge number in most circumstances. Judge Jacqueline H. Nguyen, an Obama appointee, joined Judges Mark J. Bennett and Daniel P. Collins, Trump appointees, in ruling that the law violates the U.S. Constitution’s supremacy clause, which ensures that federal law supersedes conflicting state ones.
“The Supremacy Clause prohibits states from enacting a law that directly regulates federal operations even if the law regulates state operations in the same manner,” Bennett wrote in the panel’s 16-page decision.
That logic undercuts a central point Oregon Democrats made in the short legislative session. House Democrats had hoped to rely upon a previous lower court ruling in February which struck down California’s law preventing federal and local law enforcement from wearing masks. U.S. District Judge Christina Snyder, a Clinton appointee, had blocked the law from taking effect on the grounds that it didn’t regulate state law enforcement and singled out federal agents. Snyder, however, allowed the identification law to stand, prompting the 9th Circuit Court of Appeals to take up an appeal from the Trump administration.
“The California ruling was instructive for us. Yes, that bill was thrown out in court, but the court ruling fairly laid out ‘here’s what we would need to see for this to be able to stand up in court’,” House Speaker Rep. Julie Fahey, D-Eugene, told reporters after the session. “And so we were actually able to take a look at that and amend the bill to make it so that it both will stand up in court and actually make a difference on the ground.”
Support for Oregon’s law targeting the use of facial coverings coalesced around concern that federal immigration agents have smashed car windows, dragged people out of their cars, held individuals at gunpoint and conducted operations outside sensitive locations such as schools, sometimes without clear identification or while wearing face coverings. Backers of House Bill 4138 say that its legal strength was in creating a civil right of action for Oregonians to sue for policy changes from any law enforcement agency across the board, rather than targeting federal agents for potential crimes or arrest.
In a statement, Jill Bakken, a spokesperson for Fahey, said the Oregon Legislature was “very deliberate” in the way it approached legislation responding to the federal government this past session. She said Oregon’s mask law will remain as state law “unless a challenge is brought and a court rules otherwise.”
“We’re reviewing the potential legal implications of the 9th Circuit’s ruling, and of course there is still an opportunity for this ruling to be appealed,” Bakken said. “What we know definitively is that Oregonians expect that their elected officials are going to show up for them when the federal government impedes our civil rights without transparency and accountability.”
Rep. Farrah Chaichi, a Beaverton Democrat who led the fight for the legislation, told the Capital Chronicle that her view of the California law ruling was that it was an initial injunction and not a final full opinion on the appeal.
“We don’t have the full opinion, which would be the full explanation of what was going on. It could be a problem, it could be OK, it could be something we could mitigate, maybe, I don’t know,” she said. “I’m just sitting and waiting for the actual full opinion to come down to see what it says.”
Mixed feelings for legal experts
Some legal experts have speculated that the issue of whether states can regulate federal agents could make its way to the U.S. Supreme Court. But two of them had differing opinions on the exact implication of the California ruling for Oregon’s law enforcement regulations.
Tung Yin, a law professor at Portland’s Lewis & Clark Law School, said the ruling “is not terribly surprising” and pointed to the fact that an Obama appointee did not dissent.
“The implication is pretty straightforward: Efforts by Oregon to rein in federal agents through state law are going to be hard to implement, apart from general criminal laws that apply to everyone, as opposed to law enforcement – even if the state tries to regulate all law enforcement officers (including its own),” he wrote in a statement.
But Norman Williams, a law professor at Salem’s Willamette University, saw things differently. He agreed that “the panel seems to suggest that states cannot ‘directly’ regulate federal law enforcement operations at all.” But he said that an exception to that rule would be laws affecting ordinary citizens, such as speed limits.
“I would expect Oregon to argue that the Oregon law, by applying to all law enforcement, fits within that exception — that Oregon’s law bans all citizens performing law enforcement functions from masking just like Oregon’s speed limit bans all citizens who drive a car from going too fast,” he said in an email. “We’ll see if the 9th Circuit accepts that view of the matter.”
The Trump administration, meanwhile, has already signaled it will skirt state laws restricting their agents’ use of masks. Lauren Bis, acting assistant secretary for the U.S. Department of Homeland Security, previously told the Capital Chronicle that the agency would not follow mask restriction laws like Oregon’s, writing in a statement: “To be crystal clear: we will not abide by unconstitutional bans. The supremacy clause makes it clear that state politicians do not control federal law enforcement.”
