Lawmakers advanced two bills this week aimed at blunting the power of federal agents in Vermont amid the Trump administration’s immigration crackdown.
On Thursday afternoon, the Senate voted in favor of S.208, which bans law enforcement officers — local, state and federal — from wearing masks or disguises while interacting with the public, with some exceptions. It also requires that they clearly display their name or badge number and their parent agency.
“To the extent that we are able, this bill is a step in the direction of protecting people in Vermont against masked, anonymous agents of the government,” Sen. Nader Hashim (D-Windham), one of the bill’s sponsors and the chair of the Senate Judiciary Committee, told senators on Wednesday.
The other bill, S.209, prohibits warrantless civil arrests in “sensitive locations,” such as polling places, schools and health care facilities. The Senate voted 27-2 to advance the bill in a preliminary vote on Thursday.
“We are saying that there is a narrow list of places that are so sensitive and so important for people’s lives that they should be able to go there without warrantless arrests occurring,” Sen. Tanya Vyhovsky (P/D-Chittenden-Central), one of the bill’s sponsors, told senators before the vote on Thursday.
Both bills will head to the State House of Representatives next.
The bills were carefully drafted to avoid running up against legal challenges from the federal government. Under the Supremacy Clause of the U.S. Constitution, states are barred from regulating the federal government directly or implementing laws that discriminate against it. Federal law also takes precedence over any conflicting state law.
“There is a very delicate dance to be done with the federal government regarding the Supremacy Clause,” Senate President Pro Tempore Phil Baruth (D/P-Chittenden-Central), told lawmakers. “The federal government is supreme in many ways, but the state is sovereign in other ways.”
Lawmakers hope the anti-masking bill will pass muster because it applies to all law enforcement operating in the state, not only federal agents.
Baruth said he believed they had found “the correct balance.”
The bills are advancing at a time when these constitutional questions are still being posed across the country. A California bill banning federal law enforcement from wearing masks — the first of its kind in the country — was struck down by a federal judge on Monday because it singled out federal agents.
Judge Christina A. Snyder of the U.S. District Court in Los Angeles said in her decision that the law may stand if amended to include state agents as well. Given this, Vermont’s law may be on more solid ground.
The judge did allow California to enforce a separate law requiring that all law enforcement agents display visible identification, another positive sign for Vermont’s law. But the case law is still far from settled, and more challenges are likely.
As Vermont’s anti-masking bill is currently written, violating the law is a civil offense punishable by a fine up to $1,000 for a first offense and up to $2,500 for subsequent offenses.
Lawmakers held back from making it a criminal penalty, to the dismay of Sen. Vyhovsky, who told her colleagues in the Senate Judiciary Committee that it lacked teeth.
“I just don’t see a civil fine actually stopping them from doing anything,” she said, referring to federal agents who have increasingly donned masks while carry out immigration enforcement operations. “Why pass the law at all if they have all the money in the world to just not follow it? Why bother?”
The “sensitive locations” bill was similarly scaled back. It initially sought to bar warrantless civil arrests — which includes some detentions carried out by federal immigration authorities — at all government buildings in Vermont. But after counting up the hundreds of such buildings in the state, lawmakers felt that clause was too vast and broad and struck it from the bill.
Even without that clause, however, the bill amends an existing 2018 law to significantly expand the list of protected places in Vermont, which currently includes only state courts.
The protection applies to anyone “traveling to, entering, remaining at or returning from” a court proceeding, polling place, educational institution, social services establishment, place of worship, health care facility, children’s camp or state child development facility.
Taken together, the two bills “create a much broader protection than either would do separately,” Baruth told senators on Thursday. He said he considered them “some of our best work to date this session.”
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