Justice Department sues Virginia over mask ban, limits to federal agents

The Justice Department is suing Virginia over new state laws limiting federal immigration enforcement, including a ban on federal agents wearing masks.

The lawsuit, launched June 11, alleges that the legislation, which also curtails local law enforcement cooperation with immigration enforcement officials, violates the U.S. Constitution by attempting to regulate the federal government.

“For over 200 years, the Supreme Court has repeatedly recognized that states have no authority to regulate the Federal Government’s operations,” according to the lawsuit filed in federal court in Richmond. “Virginia recently enacted a bill that purports to do exactly what constitutional law says it cannot: subject Federal officers to criminal laws that seek to regulate how those officers carry out their Federal duties.”

The legislation, which is set to take effect July 1, bars law enforcement officers from wearing a face covering while performing official duties, with some exceptions. Violations of the law, which also requires federal agents to be identifiable, would count as a misdemeanor offense and are punishable by disciplinary action.

Although Gov. Abigail Spanberger (D) is not a named defendant in the lawsuit, she signed the bills into law. Her previous experience as a federal law enforcement officer, a spokesperson said in a statement to The Washington Post, means she understands “transparency, accountability, and a commitment to earning the public’s trust are prerequisite to upholding the rule of law and keeping Virginians safe.”

“Law enforcement officers wearing masks on American streets undercuts these basic expectations of accountability, sows fear and confusion, and erodes the public trust that police have worked for years to build within their communities,” the spokesperson said.

The Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement and other federal law enforcement agencies, has said its agents would not comply with the ban out of concern for safety.

“Law enforcement officers risk their lives every day to keep Americans safe, and they do not deserve to be doxed or harassed simply for carrying out their duties,” acting attorney general Todd Blanche said in a statement announcing the lawsuit. “Virginia’s anti-law enforcement policies regulate the federal government and are designed to create risk for our agents. These laws cannot stand.”

The lawsuit also challenges a bill passed by the General Assembly that prohibits state and local law enforcement agencies from maintaining or entering into agreements with federal immigration authorities unless they meet strict provisions. At least 28 law enforcement entities in Virginia have existing contracts with ICE, known as 287(g) agreements, according to agency data.

The lawsuit argues that prohibiting the agreements, which allow ICE to deputize state and local officials to conduct immigration enforcement, would force federal authorities to “expend more resources conducting public at-large arrests in order to detain the dangerous aliens,” according to the complaint.

Former Virginia governor Glenn Youngkin (R) had created what he called the “Virginia Homeland Security Task Force,” in which state and local officials worked at the direction of federal agencies to round up thousands of people suspected of being undocumented immigrants. Under Spanberger’s leadership, the state returned to a long-standing practice of notifying immigration authorities anytime a foreign national is in custody on criminal charges – whether undocumented or not – and sending word 60 to 90 days before release so federal officials can detain them if there is a judicial warrant.

Last month, Spanberger issued an executive order that banned immigration agents from carrying out arrests on state property without a warrant or using state property as a staging area for enforcement operations.

The complaint names Virginia Attorney General Jay Jones (D) and Fairfax County Commonwealth’s Attorney Steve Descano (D) as co-defendants, saying they have not disavowed enforcing the mask ban or limits on 287(g) agreements.

In a statement to The Post, Jones said his office is reviewing the complaint. “We remain steadfast in our mission to protect Virginians’ right to safe communities and transparent enforcement of the law,” he said.

Descano is the top attorney in a Northern Virginia county that has been a focus for conservatives in recent months over local immigration policies and high-profile criminal cases involving suspected undocumented immigrants, leading to a tenuous congressional hearing and a Justice Department civil rights investigation.

In the lawsuit, the Justice Department alleged Descano was being too “lenient” on undocumented immigrants accused of a crime and described Fairfax County – a deep-blue jurisdiction of more than 1.1 million residents – as the “center of significant immigration operations.”

A spokesperson for Descano did not immediately return requests for comment.

While the bills passed through the Virginia General Assembly, lawmakers on both sides of the aisle expressed concerns about their constitutionality. Efforts to limit the actions of federal law enforcement in other states, such as California, have been struck down by the courts as an overstep of a state’s authority.

“No one should be surprised by this suit,” Virginia House Minority Leader Terry G. Kilgore (R-Scott) said through a spokesman. “Republicans warned Democrats repeatedly during the session that this would happen, and that other courts had already ruled against these types of restrictions on the Federal government. Now taxpayers will be on the hook, paying to defend yet another unconstitutional law from Virginia Democrats.”

The lawsuit asks U.S. District Judge Robert E. Payne to strike down the laws as unconstitutional and compel state officials from enforcing the legislation.

Gregory S. Schneider contributed to this report.

Reporting by Juan Benn Jr. and Liam Bowman, The Washington Post