Can States Ban Federal Officers from Wearing Masks? 

Politicians at all levels of government have called for reforms to deescalate tensions arising from federal immigration enforcement in their states. One common proposal is banning law enforcement officers — including Immigration and Customs Enforcement (ICE) and Customs and Border Protection officers — from wearing masks.

In January, the U.S. District Court for the Central District of California made headlines when it preliminarily ruled that states can constitutionally prohibit federal law enforcement officers from masking, so long as they do not discriminate against federal officers in the process. This ruling was the first in the country to consider the constitutionality of state mask bans.

But the issue is almost guaranteed to arise in other courts across the country. In addition to California, lawmakers in at least 30 other states have introduced, considered, voted on, or even passed similar legislation. For example, New Jersey, Oregon, and Washington, all passed mask bans earlier this year. Los Angeles County in California and Saint Paul, Minnesota have passed local bans.

The federal government claims that these laws are unconstitutional, and that states cannot prohibit federal officers from masking. Its argument primarily stems from the intergovernmental immunity doctrine, a messy and contested rule stemming from the U.S. Constitution’s Supremacy Clause. That clause says that federal laws are supreme and take precedence over conflicting state laws. To effectuate this clause, the U.S. Supreme Court has provided federal agents with certain immunities from state law actions that would interfere with the federal government’s operations.

This makes sense. If states could regulate or prosecute federal officials who were lawfully and reasonably carrying out their duties, then they could impede legitimate federal operations. But, contrary to recent claims by the federal government, federal officials do not enjoy “absolute immunity” from all state laws. Instead, the intergovernmental immunity doctrine bars only state and local laws that “either regulate the United States directly or discriminate against the Federal Government or those with whom it deals.”

The second prong — discrimination — is where California’s mask ban failed in court. The ban applies to federal law enforcement officers but not to California state law enforcement officers. As the U.S. Court of Appeals for the Ninth Circuit explained just last year, “A state law or regulation impermissibly discriminates against the federal government if it treats a state entity more favorably than it treats a comparable federal entity.” Because California’s law did so, the district court held that the federal government was entitled to a preliminary injunction prohibiting enforcement of the ban for the time being.

But, critically, the court found that California’s mask ban, while failing under the discrimination prong, withstood the direct regulation one. In other words, the court suggested that if California’s law applied to state law enforcement as well, then it would be constitutional. This is welcome news for other states considering their own versions of mask bans, the majority of which apply their laws to all levels of law enforcement, thus avoiding the discrimination challenge.

Non-discriminatory laws are unconstitutional under intergovernmental immunity if they “directly regulate” the federal government. In contrast, laws that only incidentally affect the federal government can constitutionally apply. Relying on the district court’s reasoning in the California case, states can make strong arguments that prohibiting masking as a routine practice does not directly regulate the federal government’s operations.

In the California litigation, the federal government has argued that California’s mask ban regulates federal officers because it “places either a prohibition or mandate” on them. The government also contends that “law enforcement operations will be compromised” if the mask ban goes into effect, and agents will face increased assaults and doxing — the public revealing of personal information such as home addresses or family member identities. In the government’s view, this is tantamount to regulation because it might have a chilling effect on federal officers and because it increases the risk that suspects could identify and then evade federal officials. Therefore, it says, masking is necessary for ICE agents to do their jobs, making prohibiting it amount to direct regulation.

But the district court for the Central District of California — the only court to consider this issue so far — has rejected the government’s contention that the ban amounts to regulation. The court found California’s mask ban to be “analogous to traffic laws that, in a similar sense, dictate how a federal officer may operate a vehicle on state roads but are nonetheless enforceable against federal officers.” The court made this determination because it found the DOJ had “not shown that its current practices with respect to masking and identification are essential to federal law enforcement operations.” The federal government, the court concluded, had not “adequately explained how discretionary masking and identification policies are essential to the operations or safety of federal law enforcement.”

The court disagreed that masks were required for safety reasons. The security concerns raised by the government “exist for federal law enforcement officers with and without masks,” the court said. Indeed, “the presence of masked and unidentifiable individuals, including law enforcement, is more likely to heighten the sense of insecurity for all.” And the court noted that the alleged harms “are the result of criminal behavior.” The state’s mask ban “does not facilitate or enable criminals to harm law enforcement officers,” and doxxing and assault will continue to be illegal even if the ban is in place.

Other courts may come to the same conclusion. There is no evidence that masking reduces the likelihood of assault. Nor does it appear that ICE officials today face an increased risk of assault than in past years. In fact, according to the CATO Institute, 2025 was the second safest year for border patrol and ICE agents based on the available data — safer than any year since 2015. Although former Homeland Security Secretary Kristi Noem claimed that federal agents experienced a 1,300 percent increase in assaults in 2025, going from 19 reports in 2024 to 275, the number of ICE agents in the field and the volume of enforcement activities also rose significantly during that time. Further, the assault figures rely on officers reporting assaults, so the increase may reflect changes to how assaults are defined and reported. The government has publicly claimed that videotaping ICE law enforcement counts as “violence” against ICE officers. Recent claims of “assault” have also included “linking arms with a man” ICE attempted to detain and asking to see a warrant, leaving garbage on an agent’s lawn, and creating a sign with profane language targeting an officer.

Moreover, the government has not offered any public data on the extent to which ICE agents are in fact being subjected to doxing and whether masking reduces the risk. But the California court noted that “the historical tradition of law enforcement officers not masking their identities and the current practice of some federal officers who choose to expose their identity alongside colleagues with masks” undermined the DOJ’s argument that masking was necessary for this reason. This point echoes what constitutional scholar Erwin Chemerinsky pointed out in his defense of California’s mask ban: “ICE agents have never before worn masks when apprehending people, and that never has posed a problem. Nor have other officers of local, state and federal law enforcement faced dangers from the public because they don’t wear masks in the streets.” Indeed, that the federal government has not made masking mandatory for all agents suggests that mask bans are not necessary and do not materially interfere with federal policy and prerogatives.

A recent U.S Court of Appeals for the Fifth Circuit case further supports the contention that anti-masking laws do not amount to regulation. In 2024, the Fifth Circuit denied the federal government’s invocation of intergovernmental immunity when Texas brought common-law conversion and trespass claims against federal border patrol agents. The agents had cut a coiled razor wire fence that the state had placed along part of its border with Mexico. The Biden administration argued that removing the wire was necessary to fulfill the agent’s statutory duty to patrol the border and that Texas’s lawsuit was thus invalid under intergovernmental immunity because it sought to directly regulate the federal government’s operations.

The Fifth Circuit disagreed. The court explained that “the key question” on the regulation prong “is whether state law seeks to improperly ‘control’ the employee’s federal duties, or whether the law only ‘might affect incidentally the mode of carrying out the employment.’” Even though Texas’s suit impacted how the federal agents carried out their duties, and even though it “impose[d] a burden on agents,” intergovernmental immunity was not implicated because the impact and burden were only incidental to achieving the federal policy.

Similarly, not masking does not prohibit ICE from doing any aspect of their jobs. It just prohibits them from concealing their identities while they do it.

There are certainly arguments to be made that mask bans in some sense regulate the federal government. But the same is true of myriad other state laws that federal officials are and have been subject to for centuries. The real question is how significant a burden this regulation is on their ability to do their jobs.

There is no obvious “right” legal answer to this question. The case law is murky, a lot of the relevant precedents are decades (or even a century) old, and this scenario raises new and novel legal considerations. The federal district court in California issued its preliminary ruling, but that ruling is not binding on other federal district courts. In other words, the doctrine is still unsettled and is likely to arise again in trial courts, appellate courts, and eventually the Supreme Court. But for now, mask bans stand a fighting chance against Supremacy Clause and intergovernmental immunity challenges.

Bridget Lavender is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.

Suggested Citation: Bridget Lavender, Can States Ban Federal Officers from Wearing Masks?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 20, 2026), https://statecourtreport.org/our-work/analysis-opinion/can-states-ban-federal-officers-wearing-masks