MD Senate passes ICE anti-masking bill despite constitutional questions

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The Maryland Senate passed legislation Tuesday to prohibit law enforcement officers from wearing masks in the line of duty — including Immigration and Customs Enforcement officers (ICE).

“We believe in trust between law enforcement and the people that they serve,” Senate President Bill Ferguson, D-Baltimore City, said addressing the press after the vote. “What we’re seeing by ICE in Maryland and across the country is abhorrent to Maryland values.”

Sponsored by Senate President Pro Tem Malcolm Augustine, D-Prince George’s, Senate Bill 1 would charge the Maryland Police Training and Standards Commission with establishing a uniform policy prohibiting law enforcement officers — including ICE — from wearing face coverings in the normal course of duty. It would provide carveouts, including for officers who are undercover and in the case of cold weather.

Officers who violate the policy would be subject to a $1,500 civil citation — an arrestable offense — and subject to police discipline.

ICE does not have an agency-wide masking policy.

Del. Nicole Williams, D-Prince George’s, is sponsoring the House version of the bill, which will be heard in the Judiciary Committee on Feb. 24.

Republicans have questioned the feasibility of state law enforcement policing federal officers.

“You’re creating a system where you’re going to allow local law enforcement to try to detain federal law enforcement for a civil violation of wearing a mask, so, for that reason alone, we ought to reject this bill,” Senate Minority Whip Justin Ready, R-Carroll and Frederick, said on the floor Tuesday morning.

The constitutionality surrounding the ability to enforce state policy against federal law enforcement has also repeatedly come into question.

A letter of advice from the attorney general’s office says it’s not unconstitutional on its face because the General Assembly has the power to regulate State and local law enforcement and criminalize conduct — but it would be difficult to enforce because of the Supremacy Clause of the U.S. Constitution, which dictates that the federal government is “free from regulation by any state.” Additionally, intergovernmental immunity bars states from interfering with or regulating the operations of the federal government.

“The answer to this question likely would depend on the circumstances, including a particular federal agency’s reasons for why mask-wearing is needed to carry out its duties under the law,” Assistant Attorney General Natalie R. Bilbrough wrote in a Jan. 21 letter. “Courts generally tend to defer to the federal government on issues of immigration enforcement, and I think a court would be hesitant to enforce such a law against the federal government if it appeared the State was trying to directly regulate ICE or interfere with federal officials’ control over the agency’s operations and conduct.”

Still, the bill moved forward. Ferguson acknowledged Tuesday that the constitutional question is “an untested area.”

“The real question is: Does the Supremacy Clause outweigh federalism, and, particularly in a space when it is about a federal agency not having a policy, does state law trump — no pun intended,” he said. “Fundamentally, I think state’s rights matter, and I think that’s what will prevail.”

Senate Bill 1 now needs to be heard, debated and passed by the House chamber before it reaches Gov. Wes Moore‘s desk.

The House and Senate also passed identical emergency bills to prohibit Maryland counties from entering into memoranda of understanding with Immigration and Customs Enforcement (ICE), including 287(g) agreements.

In Maryland, eight counties are currently engaged in 287(g) agreements through their local jails. 

Both bills need to be heard, debated and passed in their respective opposite chambers before they head to Gov. Wes Moore’s desk.

Should Moore sign the legislation, all eight agreements with ICE would be voided.