Bridget Lavender
state constitutions, federalism, civil rights | currently Staff Attorney @UWLawDemocracy | views are my own
- California recently banned federal law enforcement officials (including ICE) from wearing masks or concealing their identities. At least 17 other states have proposed similar laws. The federal government claims that these laws are unconstitutional. Is that right? Well, it's complicated 🧵 1/
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View full threadTo be clear, I don't think there's an obvious "right" legal answer here. The case law is murky, there's not a ton of recent binding precedent, and our current legal / political landscape is unpredictable in many ways. But I see people saying mask bans are DOA, and I just don't think that's true.
- Finishing up by linking again to my longer piece on this, which is what I wrote in the thread but with citations and examples and more explanations! Grateful my job let's me research and write about this for work :) statedemocracy.law.wisc.edu/featured/202...
- We are still waiting for the decision on the PI in the California case, but I wouldn't be surprised if California loses on the discrimination prong. That said, I haven't yet dug deep into their arguments in response, so I could be wrong! We will see!
- To wrap up, the main question is do these laws truly interfere with the government's operations, or is it an incidental burden. I think there's a colorable argument for the latter! Many ICE agents don't mask, masking isn't required, ICE agents have done their jobs in the past without masking.
- In that case, the court said Texas could pursue conversion and trespass claims against federal Border Patrol agents who cut a wire fence as part of their patrol. Yes these laws impact & burden how federal agents carry out their duties, but that wasn't enough! I could see a similar arg for masking.
- I know this is long so if you're still with me, thank you. The second part of Intergovernmental Immunity is discrimination. Most laws I've seen apply to law enforcement at all levels, which avoids direct discrimination. Notably, California's doesn't, and the fed gov has used that in its arguments.
- (I'll note here that California's ban and each bill I've seen includes exceptions for SWAT teams, undercover work, etc., ie times when it is indisputably necessary to mask / cover your face)
- In 2024, the Fifth Circuit said the "key question" "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.'"
- I'll start with Intergovernmental Immunity, bc this is what was primarily argued in the CA case. I've seen people say that the laws obviously "directly regulate" ICE, but I think it's more nuanced. So do traffic laws!
- No federal law or regulation mandates masking. There are strong arguments masking is not necessary to do the job (ICE did their job for decades without). Not masking does not prohibit ICE from doing anything, really, except covering their faces while they do it.
- The best way I've found to explain this is to think about driving: Fed agent runs a red light just because & hits / kills someone? Can probably be prosecuted for vehicular homicide. Fed agent runs the red light because he was pursuing a fleeing suspect as part of his job? He's probably protected
- Where's the line? There's 2 doctrines. Supremacy Clause Immunity protects officials if their actions were authorized by fed gov & "necessary and proper" to carrying out their job. Intergovernmental Immunity protects feds from laws that either directly regulate or discriminate against the fed gov
- I wrote about this in depth for @uwlawdemocracy.bsky.social but I'm summarizing the tl;dr version in this thread. Of course for more citations etc etc, check out the longer piece. 2/ statedemocracy.law.wisc.edu/featured/202...
- The main question is whether these laws violate the Supremacy Clause of the U.S. Constitution, which says that federal law is supreme & protects fed agents from some state laws that interfere with the fed government's operations. But fed agents DO NOT have absolute immunity from all state laws 3/
- Homelessness is rising fast among a surprising group: Infants and toddlers hechingerreport.org/homelessness...
- Incredible resource! My state supreme court clerkship was an absolutely incredible experience, but the process of getting it was incredibly confusing. This resource is the type of thing I dreamed of when I was a 2L!
- NEW: For law students and young attorneys, state supreme court clerkships are among the most exciting jobs available, but the application process can be confusing. @jakemazeitis.bsky.social explains which courts regularly hire term law clerks and roughly how many opportunities might be available.
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- Another helpful resource: statedemocracy.law.wisc.edu/featured/202...
- For the law nerds among us, my colleague Harrison Stark wrote an excellent piece explaining if and how these state created remedies would work. statedemocracy.law.wisc.edu/featured/202...
- Read @michellegoldberg.bsky.social's excellent piece with this addendum: Part of the reason the federal government can so blatantly disregard your constitutional rights is that you are, by law, not allowed to sue them for it. But your *state* legislature, acting alone, can fix it!
- To understand more about this, check out my colleague @bgodar.bsky.social's excellent explainer about when states can prosecute federal officials statedemocracy.law.wisc.edu/featured/202...
- More and more, property owners go to state court to challenge programs meant to assist the poor, such as eviction moratoriums and mandated charity care. But efforts to defend these policies have been mostly successful. I wrote about it for @statecourtreport.org ⬇️ statecourtreport.org/our-work/ana...
- California recently banned law enforcement—including ICE—from masking up while on the job. At least other 5 other states have proposed similar laws. My latest piece explores whether these laws can actually be applied to federal agents.
- With some federal agents now wearing masks on the job, a growing number of states are considering mask bans. Can states apply such laws to federal actors without contravening the U.S. Constitution’s Supremacy Clause? We explore this question in a new Explainer: go.wisc.edu/bn0b1c
- I always love reading @prisonjournalism.bsky.social’s work, and this one brought tears to my eyes this afternoon.
- Yes! Amicus briefs can be so influential, especially in state supreme court cases. Your state supreme court hears dozens of cases affecting your rights every year with sometimes only minimal briefing. Amici can make points parties can’t, or won’t, and can absolutely change the outcome of a case!
- NEW: The ACLU + ACLU of North Carolina submitted an amicus brief in the NC Court of Appeals. Judge Griffin’s attempts to discount 65,500 otherwise eligible voters isn’t just unfair— it violates the state constitution. An honor to work on this with @segalmr.bsky.social @aclu.org and the ACLU of NC
- Utah is one of 5 states with a constitutional provision against “unnecessary rigor” in the carceral system. As we argued to the Utah Supreme Court, this provision protects death-sentenced individuals from unnecessarily cruel executions. Read the press release & brief ⬇️ www.aclu.org/press-releas...
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- Thanks for sharing!
- The Grants Pass decision was awful. But state constitutions can (and do!) provide broader protection to those experiencing homelessness. Being unhoused is not a crime, and it’s time more state courts realize that.
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- Thanks so much for sharing!
- NEW: ACLU State Supreme Court Initiative has released a report grading state supreme courts on transparency measures. These courts are more important than ever heading into Trump's presidency, but many of them fail basic transparency measures www.aclu.org/publications...
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View full threadOnly 6 state supreme courts meet all transparency measures! In contrast, nearly half fail to regularly post new cases they are considering, even those affecting fundamental civil rights. In the face of hostile federal courts & an incoming Trump administration, state courts can and should do better
- Anyways, check out our report and our handy-dandy map! Not only is it interesting, but if you're an attorney looking into state cases, the map will tell you exactly what is (and isn't) available online, with hyperlinks! And please share with your networks. www.aclu.org/publications...
- Why does this matter? State courts and state constitutions are essential to guarding civil rights. But the capacity of state courts to guard our liberties depends in part on whether courts adopt transparent processes that allow members of the public to learn about, monitor, and participate in cases.
- Our report focuses on four transparency measures: (1) Timely publication of new pending case names and docket numbers; (2) Timely publication of questions presented in pending cases; (3) Free and timely access to docket information and lists of filings; (4) Free and timely access to parties’ briefs
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- Wow, thanks for sharing. These laws are flagrant attempts to let police cite fine and arrest unhoused people— a housed person can squat wherever they want no issue! It’s cruel and counterproductive. Not to mention unconstitutional!
- We have a housing crisis, and every day people experiencing homelessness are cited, fined, or arrested simply for being outside when they have nowhere else to go. My fellowship is focused on utilizing state constitutions to protect unhoused people— even when the US Supreme Court won’t. Read more 👇🏼
- Hi 👋🏼 New to this app so I want to introduce myself. I’m a Legal Fellow at ACLU’s State Supreme Court Initiative. We focus on expanding state constitutional protections across the country & litigates a wide range of issue areas— abortion, LGBTQ rights, criminal procedure, free speech, you name it.
- This! I’m feeling so inspired after the last two days strategizing how to decriminalize homelessness, mental illnesses, and drug use. We can build the power and community to ensure everyone has access to affordable housing and our communities are healthy and safe.
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- I’m an attorney at ACLU national! Would love to be added to any list
