MONTPELIER — Vermont lawmakers originally looked poised to unmask federal authorities in the state. Then the Vermont House passed a bill Wednesday that stops short of its original ambition, in a move that divided Democrats.
The bill, S.208, would create a statewide policy on masking and identification for local and state police officers. But the legislation would not apply to federal agents.
Lawmakers spent more than two hours debating the bill Tuesday. That included a failed bid by the majority of House Democrats to change S.208 completely through an amendment that would have restricted federal agents in Vermont. After the amendment failed, lawmakers voted 102-39 in favor of the bill on second reading.
An earlier version of S.208, which the Senate passed in February, sought to ban all law enforcement officers operating in Vermont — including federal agents — from wearing masks, with some exceptions.
Then the House Judiciary Committee scrapped those provisions after judges in the 9th Circuit of the U.S. Court of Appeals ruled a similar California law was unconstitutional.
After that ruling, some lawmakers and legal experts say the Senate version of the bill is likely to be found unconstitutional in court. But other representatives say they have a moral imperative to force officers to identify themselves in Vermont, they would rather duke it out in court than cower too soon.
Dissent over the bill caused a rare splinter in the Democratic Party. The chamber postponed debate for nearly two weeks because many people still had an appetite to target federal agents in the bill, House Speaker Jill Krowinski, D-Burlington, previously told VTDigger.
Two Democrats proposed an amendment on the floor Tuesday to revert the bill back to the version approved by the Senate. The amendment required 71 votes to pass. It failed in a 65-77 vote, during which seven members were absent.
The majority of Democrats disagreed with the House Judiciary Committee’s decision to change the bill, with about 50 of the 87 Democrats in the chamber voting in favor of the amendment. A handful of Republicans, for their part, supported the amendment, though some said they couldn’t support it because they thought it was unconstitutional. And other Republicans said they didn’t support the bill altogether because it unnecessarily restricted Vermont law enforcement.
On the floor Tuesday, many Democrats said they disagreed with the federal government’s immigration tactics and felt compelled to challenge how agents operate in Vermont.
“It is our prerogative to advance bills that our constituents are asking for and that we think benefit the broad population of our citizens,” said Rep. Teddy Waszazak, D-Barre City, during the floor debate. It’s the role of the Legislature to push the envelope, and it’s the role of the courts to interpret the Constitution, Waszazak said.
It’s vital to stand up for people who are being harmed by the federal agents, he said.
Judiciary Committee Chair Rep. Martin LaLonde, D-South Burlington, said during the debate that he thinks Vermont has weak legal arguments in defense of a law that restricts federal agents.
“We should save Vermont’s litigation resources for laws that have a better chance of being upheld,” LaLonde said on the floor.
In an interview after the floor Tuesday, LaLonde said he believed the Senate’s version of the bill was likely to be found unconstitutional after reading judges’ decision on California’s law.
California’s law required all law enforcement officers in the state to wear identification. The Trump administration sued California, arguing the law violated the U.S. Constitution. A panel of three judges ruled against the state, saying its law violated a clause in the Constitution that prevents states from directly regulating the federal government.
Vermont is part of a different circuit in the federal Court of Appeals, meaning the California decision is not legally binding here. But LaLonde said judges’ arguments were convincing enough to sway his opinion.
Along with California, four other states — New Jersey, Connecticut, Washington and Oregon — have respectively passed similar mask bans that apply to federal agents.
Vikram David Amar, a law professor at University of California, Davis, who has written columns about California’s law, said he thinks state laws that ban federal agents from masking are unconstitutional.
“States cannot tell federal government entities or employees what they can do on the job, period. Unless Congress allows it,” Amar said.
When S.208 was under consideration in the Senate, lawmakers tried to engineer it so that it could weather a constitutional challenge. The clause in the Constitution says that states cannot directly regulate the federal government. So lawmakers worded the bill to make its provisions apply to all law enforcement officers in Vermont.
But the judges who ruled against California’s officer identification law poked holes in that logic. In their ruling, judges said that although California’s identification law applied to all law enforcement officers, it still attempted to directly regulate the federal government.
The federal government can allow states to limit federal employees, according to Amar, as they’ve done with local personal injury laws in the event that a Postal Service driver hits someone on the road.
But there’s no suggestion that the federal government would allow states to regulate immigration agents, he said.
“It’s all ultimately performative. It has no chance of success,” Amar said of the laws attempting to regulate immigration agents.
Falko Schilling, advocacy director for the Vermont chapter of the American Civil Liberties Union, disagrees. He believes the original version of S.208, which his organization has advocated for in the Statehouse, would still have a good chance to succeed in court.
“This is an area of law where we’ve known from the beginning that these are somewhat untested waters, but we’re also living in an unprecedented time,” Schilling said.
The bill passed by the House will go back to the Senate before being sent to the governor. If senators disagree with the changes passed by the House, the bill could be sent to a conference committee made up of lawmakers from both chambers.
