Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Alright. Welcome back to the House Judiciary Committee this Friday, May 15. And so we'll turn your attention to s two zero eight. I understand that there is an amendment in the works. It's not gonna be what I understand, anything significantly different, well, from where we ended up before we took the feds out of here, except possibly taking the identification out, and it's just the masking ban. So we're gonna see that and and also decided that we'd have a couple more witnesses. I think probably will have opposing views on constitutionality, I'm I'm suspecting. But I just really wanted to hear from some more expertise on the constitutional issue primarily. And then when we do get the actual language on the amendment, we will reconvene and have the vote. So with that, I'm gonna invite Harrison Stark to present and essentially talking to both mass fans and what I guess the best arguments are for why we should proceed with it.

[Harrison Stark (Senior Counsel, State Democracy Research Initiative, UW Law School)]: Thank you very much, Chair LaLonde, vice chair Burditt. Good morning, everyone, and thank you for the invitation to be here. My name is Harrison Stark. Hehim, I'm senior counsel and director of special projects at State Democracy Research Initiative at the University of Wisconsin Law School. Although the University of Wisconsin Law School is based in Madison, I remain based full time here in Vermont, so it's a particular honor for me to be here today. SDRI advances research and dialogue on state law, state constitutions, state institutions. And as part of that, we have an ongoing project on state checks against federal overreach, which has explored some of the tools available to states and some of the proposals that states and localities have come up with to resist federal overreach. And that includes constitutional remedies. So suits for damages against officers who violate constitutional rights, just like age eight forty nine. We've written about sensitive location protections. So that's preventing more of a civil arrest, places like hospitals, schools, courthouses, like S 209. And we've also written substantial about masking and ID bills like S-two zero eight. And we have a white paper that kind of goes into the legal analysis at some detail that's in the record. Don't think, Chair, I can tell you why to pass this law. What I can talk about is the constitutional landscape and some of the constitutional arguments for it. Our analysis after looking at the way that courts have reasoned about the supremacy clause issues is that mask bans and ID laws like this are not clearly permissible nor are they clearly prohibited. They are not clearly unconstitutional nor are they directly on all fours with any precedent about constitutionality. And while there's of course a real risk that statutes like this may ultimately be invalidated by a court or by the Supreme Court, states have strong arguments that the doctrine as it exists today does not dictate or require their invalidation. States have compelling arguments that a reasonable and intellectually honest judge could endorse in favor of these just as the trial court did in California. So just to kind of take a step back. I mean, I I I don't know if professor Small and I have have truly opposing views on the constitutionality. I have tremendous respect for professor Smala. And I I think in in terms of the overarching framework, we agree entirely. I think where we maybe have some context to add is our research on how courts have thought about this question of direct regulation. So it is absolutely true that the Supreme Court has said that under the supremacy clause, states cannot directly regulate the federal government. The Supreme Court has also said equally again and again that federal officials and federal actors are not immune from state law. And state law can apply to federal actors even in the course of their official duties. And so how do you how do you square that circle? But the way that courts have reasoned about this, about differentiating between state laws that can apply to federal officials in their line of duty versus those that impermissibly directly regulate the government has been to focus on the degree of control over the federal function. And the kind of canonical case for this is a case called Johnson v. Maryland, which is from 1920. There, the Supreme Court overturned a conviction against a male driver, postal service worker, who had been convicted of driving without a license. And the supreme court said a state can't require a federal official to get a driver's license before they perform the federal duty because that would put the state in the position of essentially controlling whether or not the federal function occurred. But the court there drew a distinction between driver's license laws, which require advanced permission or control the federal function versus traffic laws like speeding. And the court said that those kinds of laws are okay because they only incidentally affect the mode by which the federal function is carried out. And so those are the two poles of the doctrine in store. Control on one hand, state authority to dictate the federal function, control whether or it happens or specifically how it is achieved versus laws that incidentally affect the mode in which it's carried out. And I think there are really two key points for that inquiry that a court is going to engage on and that courts have engaged on here. One is what is the federal function as authorized by law? And the focus there is on Congress. I I know you all are familiar with separation of powers principles. Congress makes the law, the executive branch enforces the law, courts interpret the law. Honoring that separation of powers principle, courts have looked to what congress has actually authorized through the legislative process. And then they have secondarily looked to, okay, now that we have defined the scope of the legitimate authorized federal function, to what degree does the state law control, burden, or interfere with that function? And I think critical for this question is that on identity concealment and masking policy, there really is no federal law on courts. There is no congressional statute that talks about this. The federal regulations that do discuss this say that individuals should reasonably identify themselves and their agency in the course of immigration arrests. There's not even an official policy from DHS or ICE that carries the force of law or even doesn't carry the force of law in terms of when officers are required to do this. In public statements, ICE and DHS have been fairly clear that this is a personal choice that's at the discretion of the individual officer. And so I think that this is really the central question that a court will confront in these cases. DOJ will almost certainly argue that any state law that requires identification or prohibits masking interferes with ICE's mission with DHS's ability to conduct immigration arrests. But states have compelling arguments that I think a judge could endorse that when you look to what Congress has actually authorized, masking or identity concealment are not essential parts of the authorized function of immigration enforcement. It's difficult to predict exactly how a court is going to reason about this, but in particularly, I think a federal court in Vermont or in the second circuit. But much of it, I think is gonna come down to whether or not the court will essentially defer to the federal government's representation if that's necessary. They could say, the federal government has told us that they think masking and concealing their identity is necessary to achieve this function. We're not going to question that. And I think this is not on full display, but in the Ninth Circuit decision that enjoined the identification requirements of California's law, the masking provision was not upon appeal. The court said this directly regulates federal law enforcement, but it didn't actually do any analysis of why, partially because that case was in a preliminary posture. What the court was confronting was whether or not DOJ was likely to succeed on the merits. And so the court appears to have credited the federal government's assertion that masking is necessary. But I think it is also entirely possible that a court, particularly a court that is skeptical about federal overreach or skeptical about the federal government's representations would say, yes, I know that DOJ is saying that masks are necessary to achieve what Congress has authorized DHS or ICE to do, but also that the court will look under the hood and say, what has Congress actually authorized? What did the federal statutes say? What do the regulations say? And could say that when you look at the scope of immigration enforcement authority, there's just nothing here that says that officers either must mask, can mask or cannot mask. And so rather than controlling or burdening the federal function, this is much closer to a traffic law that incidentally affects the mode in which it is undertaken because masking as the federal government has said is essentially a personal choice for the officer. Our memo has described that that's essentially the state of the law in terms of how courts have thought about this direct regulation issue. I certainly agree with Professor Smollett's points that if an agency were to order or direct with the force of law an official policy about this, that the analysis would look very different. I think when Congress or an agency with delegated authority issues directives with the force of law, it is true that states cannot override those directives or interfere with the lawfully authorized federal function. But the strong arguments that states and localities can make in favor of these policies is that there is no federal law on point that requires this, that authorizes this. And so particularly like traffic laws, where in that case, the court said, where Congress has not spoken, state power can especially affect the mode in which federal operations are taken out, that this is one of those scenarios in which states can rely on their police power to protect the health and well-being of their citizens. And that the burden on the authorized federal function is not the kind of prohibition or placing state in the role of decision maker over the federal function in the way that courts have deemed problematic. I'm not qualified, I think, to speak to kind of the risk calculus in terms of whether the risk of invalidation is so great that this committee is comfortable or not comfortable adding in federal officials back into the bill. But I would welcome any questions about the history of this doctrine, the way it's played out, about scope of the Ninth Circuit decision or any other aspect? I do have a couple of questions. So my reading of cases and articles on this is that there's a difference if the regulation or if the state law is an indirect regulation of the federal officials, where like all citizens have to follow traffic laws.

[Rep. Martin LaLonde (Chair)]: And it also then indirectly may impact federal officials as well. And it's at that point we start looking at the amount of control, the burden, etcetera. But if it's a direct regulation, you don't get to that question. The direct regulation, if you're telling them how to do their job, telling them how to whether to ID or not, and whether to mask or not, that's a direct regulation. That's not applied to all citizens. It's applied just to law enforcement. It may be local and state law enforcement as well. But I'm not sure how you answer that kind of issue. I mean, I'm seeing it really as And I guess a question is, I mean, have there been any cases as well that involved a state's direct regulation telling an official what they can and can't do? Have there been any cases that have found that to be constitutional as opposed to these kind of incorrect regulations? So it's a great question. The answer is no state There are no cases in which courts have found that a direct regulation is constitutional. But the antecedent question of whether this is a direct or indirect regulation focuses on the degree of control. And so and and so the okay. Go ahead. There there's not a formal test in which the court says this law on its face directly regulates federal officials. This one only incidentally or indirectly regulates federal officials. I understand the distinction that you're drawing between laws that apply to everyone versus laws that apply to say something like law enforcement. But particularly because it is so easy to draft laws in a way that at least on their face apply to everyone. You could write a law like this that basically says anyone who purports to be law enforcement, which would kind of get at some of the impersonation concerns. On its face, it would apply to everyday individuals. Wouldn't just apply to official law enforcement. I think a court would still look at the same analysis of whether or not this interferes with the federal functions. And so it is absolutely the case that once you are in the realm of direct regulation, that is unconstitutional. But the antecedent threshold question is whether a law is a direct regulation of the first law. And the way that courts have talked about this, I think the best language about this comes probably from the Fifth Circuit and the Third Circuit, and there's two cases that we talk about in the memo, is they use what's called a functional approach, where they reason about the burdens and the scope of federally authorized law. So there's Fifth Circuit case, for example, where Texas sued the federal government alleging that border patrol under the Biden administration was cutting razor wire that Texas had laid down to try to stop immigration. The federal government sued and said, you're interfering with our security at the board. And the court said the the key question in a direct regulation is the degree of interference with the federal function. And I'm happy to pull up that exact language. But I think the question of control or burden is one that courts have confronted in defining what is a direct regulation and what is an indirect regulation. In the Ninth Circuit, pretty clearly with a similar law, that that was correct and found that you didn't look at how much it may have impacted. And the fact is that they were telling law enforcement how to conduct their business. And that's where you've crossed the line. And that's where it's direct. I guess the other thing is, I just look at another example. It's like, can we tell the US Postal Service that all of their individual mail deliverers have to hold the package with both hands to go up to the door and drop that off. Is that really a necessary part of their job to be able to do that? And yet I'd say that's pretty clear that there'd be direct regulation of official. Maybe this is a bad hypothetical, but what I think of. It's like I I don't see how this isn't direct. It's my issue on that. And I agree it's a whole different conversation if it's an indirect type of regulation and then you start looking at birds and all that thing. Other questions, go ahead, Ian.

[Rep. Ian Goodnow (Member)]: Yeah, thank you very much. It's very helpful. Yeah, I guess building off of Martin's questions, I see it if we get to direct regulation or in the intergovernmental immunity doctrine, and then there's no question as to how much this burdens. It's just basically, is it direct regulation and has Congress or said anything that explicitly lets states regulate? And I think my two questions are, are there any cases where it's bound to be a direct regulation and Congress is silent that a state could regulate. And then the other is understanding your point on trying to determine whether it's direct or indirect regulation. Are there any cases where it was found to be indirect regulation where the regulation itself was not broad citizen wide?

[Harrison Stark (Senior Counsel, State Democracy Research Initiative, UW Law School)]: Yeah, I think I understood the question. So the first answer is broadly no. Once something is found to be a direct regulation, that is unconstitutional. But again, the way that courts have answered that question is not to look at sort of to whom does the law apply. That's where that's the end of the inquiry. It's to what degree is it burdening or interfering or going to the heart of a federal function? So for example, I think if a state were to pass a law that says no law enforcement is allowed to wear a Mickey Mouse hat, for example, during to put the first amendment rights of w w Disney to one side, I think it's highly unlikely that a court is gonna say that this even though it applies to law enforcement, this is a direct regulation because it it it the conduct that it is regulating. And it it really is focused on the conduct. The conduct that is regulating is not conduct that is even even though this applies to law enforcement, it is not conduct that is related to or central enough to their lawfully authorized students. And I think in in this analogy, the argument that states are making is that masking is like a Mickey Mouse hat, essentially. It is something that is a personal choice for the officer that Congress has not authorized, Congress has not prohibited, but is a matter of personal discretion while the officer is undertaking their official duties. To answer your other question, there are a number of cases where courts are essentially looking under the hood of the way that the law is drafted to look at its effects. And so there is a third circuit case, for example, where the state essentially banned private detention facilities. It said no one can enter into a contract to privately house detainees, public, private, whatever. And the court said because this essentially prevents the federal government from achieving its immigration function, it's a direct regulation. It directly regulates the government in substance even if not literally. And so that's exactly an example of the kind of functional approach that many courts have taken. I absolutely understand your point here that the Ninth Circuit did say these laws directly regulate law enforcement. They did not there's nothing in that opinion that explains their reasoning for that threshold determination. And based on the briefing and the preliminary posture, it seems as if the court essentially took credited DOJ's assertion that that this does directly regulate federal law enforcement function. But I think that the the critical question for a court confronting these types of state policies is to what degree is that actually true? To what degree is this regulating, if your pardon's kind of a crude metaphor, Mickey Mouse hats on the one hand or firearms on the other, something that is essential to performing the law enforcement function versus something that is ancillary or incidental to performing the federal function. But that is allowing state legislators and courts to determine how law enforcement is conducting their business as well. So it's like, who am I to tell them that an undercover law enforcement officer should not have to display their identification or that they shouldn't have a mask for certain purposes that they come up with. Seems I don't know. I'm troubled a little bit by that. I understand what you're saying about that as well.

[Unidentified member (first name 'Brooke')]: Other. Yeah, go ahead, Brooke. So I'm wondering, for this particular case, the night of masking, how much does it matter that for years the feds conducted this work without wearing a mask?

[Harrison Stark (Senior Counsel, State Democracy Research Initiative, UW Law School)]: I think it depends on exactly how a court's gonna reason about it. I think that's potentially strong evidence that masking is not essential or is not at the heartland of the act of conducting immigration enforcement. The fact that the agency has done this for years without needing to resort to that. And just to the chair's point, I think there is something uncomfortable about states dictating these kinds of Dictating law enforcement activity for the federal government. But I think the doctrine preserves federal power to dictate how law enforcement functions simply through legal process. And so if Congress passes a law about this, states are powerless. I think if the federal agency were to promulgate a policy with the force of law through notice and comic rulemaking, which is how it does its regulations, I think that would displace state ability to do this. I think that the federal vacuum of authority is essential to the strongest arguments in favor of these kinds of policies is that as the court said in Johnson, where congress has not spoken, state regulations that are aimed at protecting the health and well-being of their residents can apply to federal officials so long as it doesn't interfere with their actual duties. And again, that the scope of their duties matter. So I think in an undercover situation, I think it would be difficult to apply this. I think a federal officer could probably raise a successful federal defense. But whether this could apply to non undercover activity, I think that that's potentially a much closer question.

[Unidentified member (first name 'Brooke')]: Yeah, go ahead. So I've been trying to figure this out. Of course, we don't

[Harrison Stark (Senior Counsel, State Democracy Research Initiative, UW Law School)]: want to pass anything that

[Unidentified member (first name 'Brooke')]: will be contrary to our oath. But one argument that was made to me was that this is just one circuit, and so it's still not fully decided until a case reaches the Supreme Court or Congress passes a law. So I don't know how often circuits disagree and how much we should rely on one circuit to assume something's constitutional.

[Harrison Stark (Senior Counsel, State Democracy Research Initiative, UW Law School)]: Yeah, I think it's a great question. A couple of responses. One is that Ninth Circuit I think it's important to understand the Ninth Circuit decision in context. Think that the Ninth Circuit decision is clearly that panel was clearly suspicious of state efforts to require identification here. The only parts of the bill that were up on a hill there were not the mask provisions, they were just the ID provisions. I think there's a couple of reasons why that would potentially matter to a court. I think one is that part of California's law required the agency to promulgate a policy about this. And just anecdotally, something that requires affirmative action from the federal government, to me, I think a court will think that feels much more direct regulation E than potentially a prohibition on saying in your personal or individual choice or capacity, this isn't something you should do. I also think that it was in a preliminary posture. So the analysis in the Ninth Circuit panel decision was very, very per se. It said, this is a direct regulation because it regulates law enforcement. Therefore, it's unconstitutional unless Congress is concepted. The decision below, which address on the merits, the masking question, has eight pages of analysis, which digs into exactly this question of to what degree does this burden or interfere with or control the federal duties related to law? And think personal, anytime you get a well reasoned district court opinion that that's then overturned on appeal, there's the potential that courts elsewhere who are not bound by the circuit may find the district court more persuasive. I also think that the preliminary posture of that case means that even another Ninth Circuit panel could potentially distinguish it. I also think that if you I don't wanna suggest that the opposition of these panels matters tremendously, but I do think that the question of to what degree the judge is inclined to take the federal government's assertions at face value versus whether or not to And deferring to representations made in litigation about how essential this is or the risk to federal officers versus a court or a judge that is more skeptical of the federal government's assertions or this DOJ's assertions. Think that may map. And I think that it's hard to predict how or whether a federal court in Vermont or a second circuit panel may come out the same way. I'm particularly wary of predicting how the Court, the US Supreme Court might rule on these questions, but at least the doctrine as it stands today, there is The Ninth Circuit reasoning about That the line is about who the law applies to as opposed to the conduct that it regulates, that is a departure from the way that the Fifth Circuit talked about it. For example, in that case I just mentioned, the way that the Third Circuit has described this as a very functional inquiry that's focused on the effects precisely because this doctrine comes out of McCulloch v. Merrill, which is a case I know we all learned about in high school where Maryland tried to regulate the national bank of the United States essentially out of existence through taxation. And the court there was looking at sort of to what degree can the state creatively or cleverly interfere with federal functions? And so the roots of this doctrine historically have looked at this very functional inquiry to how the regulation is interfering with controlling or incidentally affecting the mode of authorized federal duties. So we need to move on to Professor with the time that we have. Thank you very much.

[Rep. Martin LaLonde (Chair)]: Thank you. Really appreciate the opportunity. So Professor Smola, if you could unmute yourself and weigh in on the questions at hand here.

[Professor Rodney Smola (Vermont Law and Graduate School)]: Thanks, again for having me testify, in front of you. It's always an honor to do that. I completely, sympathize with the public policy, reasons for prohibiting federal officials from wearing masks. I think that it's a terrible policy for the officials to do that, and it's contrary to our democratic traditions. I very much admire the work of the Wisconsin Democracy Project. I am completely sympathetic with the values that it is advancing. So I wish I could testify that I don't think there is any trouble with this law, but I am afraid I can't. I think that, it's almost certain that if the bill were passed, it would fail in any judicial challenge. Here's why. Let's imagine the bill is passed. Now the onus is on the federal government. The federal government could say, Let's sue Vermont, which is what the government did in California, and let's ask a court to enjoin the enforcement of the law on the theory that this is dictating how we would otherwise perform our duties. I've heard my friends say, Well, there may not be a congressional mandate that this be done. It may not even be an official federal policy, but in my view it doesn't matter. What matters is if either an individual federal agent or the federal agent's supervisors or the agency think that it's a good idea to wear the mask, and if Vermont thinks it is a bad idea, which I agree with, it is a bad idea, the federal agency is now having to decide, do we do what we think is right, or do we do what Vermont is telling us is right? I don't see how that's anything other than a regulation of how the federal agency conducts its business, and I'm afraid I don't think that a court would go beneath the hood, to use the phrase that we have just heard, and cross examine the federal government on whether it needs the mask policy, whether the mask policy is wise or unwise. I don't think the federal court would do that. I think it would say, that's not the right question. That's the question the district judge asked in California, and the Ninth Circuit said to the district judge, No, you're not asking the right question. It's not our job to balance these. It's not our job to ask whether this is important or not to the federal government. It's our job to simply ask, Is California regulating the way in which the federal government goes about the conduct of its duties here? And if it is, that's it. That ends it. The second doctrine we haven't talked about much is, let's imagine that The United States were to say to its agents, You continue to do whatever you think is right. If you think masking is helpful, you, feel you need to do it for your safety, we are authorizing you. It's permissible. But there's no lawsuit. They don't go into federal court and try to enjoin Vermont's enforcement. Well now what would happen? Now Vermont has to decide what to do. Maybe Vermont says, you're violating our law, and it asks the prosecutor to place the federal agent, under arrest and subject that person to civil penalties. Now that agent can say, Well, I clearly was wearing my mask in the course of performing my duty, and my own bosses have told me, I can do this if I want to do it. You are now interposing a state law to penalize me for something I did within the course of my duties. That brings up the second doctrine, the supremacy clause immunity doctrine, in which it's clear that a federal official cannot be subject to state penalties for things the official does in the performance of his or her duties, that that action was necessary and proper to the performance of the duties. Now, I suppose the prosecutor might say, Ah, see, there's the loophole. We don't think wearing a mask was necessary and proper, therefore you don't get the immunity. But again, I am very, very doubtful that a court in that situation would say, No, wait a minute, that's not what necessary and proper means. It's one thing to say, for example, you used excessive force, you committed murder in the course of your activity, that was not necessary and proper for you to shoot the two people in Minneapolis in the performance of your duties, you lose your immunity. But on something like whether or not it's necessary and proper to wear a mask in the performance of law enforcement duties, I think the court would say, well, you've made that determination that that's how you carry out your duties. That's the policy either to give you the discretion or to say you should do it that's under review here and we're not going to go beneath the hood. Just a few other quick comments and then I will be happy to take questions. The Johnson versus Maryland case, which is one of the cases strongly emphasized in the very elegant and well written paper that the Wisconsin project has put out, this sound bite in it that gets repeated often in which Justice Oliver Wendell Holmes, the author of that opinion says, well, federal officials do have to comply with generally applicable laws and he uses as an example a law dealing with how you make a traffic turn at an intersection. But he also says, and this is really important, that even as to those generally applicable laws, they can't be enforced against a federal agent in the performance of his or her duties. He cites that famous case from the nineteenth century that established that rule. That was a case, by the way, in which the federal official, a federal marshal, shot and killed someone thinking that person was about to assault a U. S. Supreme Court Justice who was writing circuit in California. The California officials arrested the federal marshal and charged the federal marshal with murder. It is very likely that the federal marshal made a mistake in shooting the person. The person was unarmed. It is a more colorful story than that, but that is the gist. But the United States Supreme Court said it doesn't matter. The point is he was performing his duty as a bodyguard protecting a federal judge, actually a Supreme Court Justice, and because of that California cannot prosecute them, even for murder. So I just am very, very skeptical that this law, though I am sympathetic with it, would survive a judicial challenge. It is the case that the U. S. Supreme Court has not reviewed, for example, the Ninth Circuit's decision, and it is the case that there are circuit splits, and there is the case that if, for example, this was challenged in the Second Circuit, Vermont could make the argument that you have heard made so well just now. I'm just very, very doubtful that it would have a chance, because at the end of the day, I think federal judges, whether they're conservatives or liberals, are going to look at this and say, How can you write a law that says a federal law enforcement agent has got to not wear a mask except in these accepted circumstances, and say with a straight face, You are not regulating how the federal official goes about his or her job. I just think that simple common sense question is so powerful, it's going to carry the day. And a few of the other cases that we've heard talk about are just so different. The Fifth Circuit case, which involved the cutting of the wire that the state of Texas owned. The Fifth Circuit says, Actually, it's not clear Texas is even trying to regulate the federal government, just trying to protect its own fences. It owns the wires. And that did sort of have the quality of a general law, bit more like a traffic law. It didn't mention the federal government. It was just you can't cut our fences, and the feds cut the fences, but this one names by name federal agents, and I just think that's going to be the poison pill that would kill it. So with that, Mr. Chairman, I'll be quiet and be happy to answer any questions that the members have.

[Rep. Martin LaLonde (Chair)]: Yeah,

[Rep. Ian Goodnow (Member)]: can you respond to, and I'm going to paraphrase and probably not get it quite right, but I think what I understood was what was presented to us was an argument that the court in determining whether it is direct or indirect regulation would look to the scope of the regulation itself. And so the example that was used was it could be a regulation around Mickey Mouse hats for firearms and for police officers and that a court would look at what type of regulation that was as to whether it was direct or indirect. Can respond to that?

[Professor Rodney Smola (Vermont Law and Graduate School)]: I guess I don't find that analysis convincing. I disagree with it. I don't think it's a matter of degree. And in fact, in the 1920 case, Johnson versus Maryland, Justice Holmes says it's not a matter of degree. That's in the opinion. It's whether this is in fact regulating the behavior of the federal agent. So it's not in my mind whether it's a trivial regulation or a central regulation, because that's just another way of saying, Is this masking really important? Is this masking really necessary? It is just another way of weighing the merits. My view is the merits don't matter. What matters is, are you trying to dictate what the government does? I have to say, I hate the masking. The fact that 30 states have tried to regulate this in some way shows there is a huge amount of negativity about it. But I actually think that hurts the states, because that tends to show, well, this isn't so trivial. The states don't like it and the federal government does, and that's the whole point of the supremacy clause, that the tiebreaker there always goes with the feds.

[Rep. Martin LaLonde (Chair)]: Thank you. Welcome.

[Unidentified member (first name 'Brooke')]: Thank you. Good to see you again. So I'm wondering if it isn't just targeting ICE, if it is targeting anyone who makes arrests, Does that help in your mind? Well,

[Rep. Martin LaLonde (Chair)]: so

[Professor Rodney Smola (Vermont Law and Graduate School)]: there was this theme as states began to think about this, that it would surely be dooming to the law to single out the federal government, but as long as you apply it to your own law enforcement officials, or to security guards, as long as everybody is included, that changes the picture. I think that is wrong and the Ninth Circuit thought that was wrong, because the analysis isn't whether this is discriminatory, the analysis is whether it regulates the federal government. In California, they did regulate California police as well as federal police, of course Vermont can regulate state and local police, and of course California can as well, but in my view, once you include the feds, even if you're including your own folks, you don't get saved for the reasons that you've heard me talk about.

[Unidentified member (first name 'Brooke')]: My understanding is right now it's up to the ICE officer. It isn't the federal government saying it officially in a you must wear a mask. So what's the harm in Vermont saying, We don't have secret police? Rather than us doing nothing and normalizing this.

[Professor Rodney Smola (Vermont Law and Graduate School)]: Right, so I think, again, I'm sympathetic with the policy argument, but let's just think this through. Let's imagine you're an ICE agent in Vermont and this law gets passed and you, the ICE agent, say to your boss, Is it still the federal rule that I get to make this decision myself? And the boss says, Yes, you can make the decision yourself. Now, we have Vermont's view versus really the federal view, because I don't think it's fair to say, because the federal government gives the individual officer discretion, it's not a federal policy. The policy is you have the discretion and Vermont's taking that away from you. If I was running the federal government, I wouldn't allow them to wear masks, but the fact is the people running these agencies are allowing it. And you know there have been proposals in Congress to prohibit it, but they haven't gone anywhere. And that again, I think hurts the states because yes, Congress could step in if it wants to, but the In fact that terms directions,

[Rep. Martin LaLonde (Chair)]: Congress has

[Unidentified member (first name 'Brooke')]: stepped in to say, masks are okay, and they didn't do that either.

[Professor Rodney Smola (Vermont Law and Graduate School)]: It could do it either way, but my point is, I think the way a court would look at it is the federal agency has made its decision to allow these, and once that's the case, as between a state and the federal agency, the federal agency wins. Now, I could be wrong, and one way to look at it is we doubt this will work, but we'll give it a shot let somebody strike it down. That's you all's decision as to how you make your voting decisions. What I'm saying is, think it's almost certain it's not enforceable.

[Rep. Martin LaLonde (Chair)]: These are questions for Professor. So I neglected to have you introduce yourself. I know that in here the committee knows who you are because you testified before, but we have other folks in the room as well. If you could just introduce yourself, I know I have that first.

[Professor Rodney Smola (Vermont Law and Graduate School)]: So for the record, my name is Rodney Smola and I am a professor at the Vermont Law and Graduate School and I am also a practicing lawyer affiliated with a Washington DC firm, Meyer Watkins Phillips Poosh, and I have been teaching and writing about constitutional law and litigating about it for, I hate to say, forty five years or so. And it's an honor to be here in front of the committee again.

[Rep. Martin LaLonde (Chair)]: It's always good to have you here, Professor. Thank you very much and have a great weekend. Thank you.

[Professor Rodney Smola (Vermont Law and Graduate School)]: Thank you, folks.

[Rep. Martin LaLonde (Chair)]: So we don't have the amendment yet as far as I know, but once we get it, we will be convened not to tell you where I'm heading, but I'm thinking that it's gonna be, I'm gonna ask to find it unfavorable because I really feel that my duty as a legislator, but also just from my being a lawyer, practicing lawyer and such, that I've looked at these arguments. I agree with Professor Smola, but I've also talked to other people, including legislative counsel. And I just think that if this is litigated, which it will be, it will be found unconstitutional. I know it's not unconstitutional right now because the second circuit hasn't ruled on it. But I can't be voting for an amendment or a bill that I just think there's little to no chance. That's just getting ahead of myself a little bit. We'll do that based on amendment when we see that sometime this afternoon. Yeah, we're gonna wait to have language in front of them. Right, right. Yeah, we need to actually have an amendment. So that's all for now. We may meet we have to meet at some point to to vote on January, but we're not gonna do it right now because you've been here for a while. And I'll find out what other times rep Oliver is available so we can fit that in. We can come off the floor if we need to to do