From U.S. v. Virginia, handed down yesterday by Judge Robert Payne of the Eastern District of Virginia:
On May 20, 2026, facing concerns that federal law enforcement officers were “undercut[ting] basic expectations of accountability, sow[ing] fear and confusion, and erod[ing] the public trust,” Governor Abigail Spanberger enacted the Mask/Identity Law. The statute designates it a misdemeanor—subject to certain exceptions—for a law-enforcement officer to don a facial covering that conceals, hides, or otherwise covers his face while carrying out official duties. The term “law-enforcement officer” encompasses both state and federal personnel.
The court determined that the statute probably could not be applied to federal officers; such a conclusion appears sound given prior rulings that limit states’ ability to regulate how federal agents perform their duties:
The United States contends that the Mask/Identity Law directly governs how ICE enforces federal immigration laws. It leans heavily on the decision in U.S. v. California (9th Cir. 2026). The Ninth Circuit’s reasoning centered on California’s requirement that officers display identification visibly. As the Ninth Circuit explained, a state law can directly regulate the government when it encroaches on federal officers’ attempts to comply with orders and adds qualifications beyond those the federal Government has deemed sufficient. (The district court’s conclusion that the mask provision within California’s law discriminated against the Federal Government was not appealed.)
In Johnson v. Maryland (1920), the Supreme Court held that a federal postal employee could not be convicted under a state license requirement for drivers, since doing so would “lay hold of” federal employees and impose extra qualifications the Federal Government did not provide for its own workers. When applying Johnson, the Ninth Circuit concluded that California’s identification rule “requires qualifications in addition to those that the [federal] Government has pronounced sufficient.” In other words, California added prerequisites for federal officers to follow while performing law enforcement, thereby regulating federal activity.
In U.S. v. Virginia (4th Cir. 1998), the Fourth Circuit invalidated a similar state move that tried to regulate the FBI’s use of private contractors by imposing hiring standards beyond those established by the FBI itself, holding that such requirements do not merely touch government employees indirectly by a general rule of conduct; they seize control of them in their attempt to obey orders and impose extra qualifications beyond those deemed sufficient by the federal government.
And the same logic applies here. The Mask/Identity Law compels federal law-enforcement officers to meet supplementary conditions imposed by Virginia—mandates about identification and masking—that federal law does not require and that the federal authorities explicitly say they need not satisfy. This runs afoul of the principle of intergovernmental immunity, which bars the application of the State’s law in this context.
Virginia contends that intergovernmental immunity is violated only when a state law forces the federal government to fundamentally alter or abandon its operations, not merely when it affects how federal employees carry out their duties. Yet the authorities it cites do not support this claim. Both Geo Grp. v. Newsom (9th Cir. 2022) and Geo Grp. v. Inslee (9th Cir. 2025) concern state regulation of Federal Government contractors, not regulation of the Government itself. As Newsom and Inslee explain, states may regulate contractors more extensively than they can regulate the Government directly.
Virginia also leans on Texas v. DHS (5th Cir. 2024) to argue that a state law that incidentally affects immigration enforcement can be valid under the Supremacy Clause. That decision, however, does not aid Virginia. In that case there was no state statute challenged. Instead, Texas sued DHS for trespass and conversion at common law and for APA violations after DHS damaged concertina wire on Texas property. The Fifth Circuit rejected the Government’s claim of state regulation because Texas behaved as a private owner, not as a regulator. Moreover, Texas did not aim to control how Border Patrol officers carry out their duties, and thus did not breach intergovernmental immunity. In fact, the Border Patrol officers cut the wire to permit migrants to pass, not to further border enforcement. The DHS Border Patrol officers did not cut the wire to access land they could not otherwise reach. Put differently, Texas’ suit did not seek to influence any activity that would advance federal law enforcement, because the wire-cutting did not relate to carrying out federal operations.
Virginia maintains that the Mask/Identity Law is generally applicable and, like Border Patrol actions in Texas v. DHS, that masking by federal officers is not done to advance federal duties. Virginia points out that there is no federal policy mandating masks, nor a written policy granting ICE officers discretion to hide their identities. Yet the circumstances here differ markedly from Texas v. DHS: the Texas claim rested on customary trespass and conversion against a private party that had cut the wire, rather than on a broadly applicable regulatory rule. In that case, ordinary citizens could not engage in law enforcement activity; the Texas approach targeted conduct that only government actors could perform, whereas here ordinary citizens are not permitted to undertake policing tasks.
Virginia also cites that, under the Constitution, states retain broad police powers and that accountability, public trust, and safety fall within that scope. While it is true that Virginia can regulate the conduct of its own citizens and its own law-enforcement personnel, there is no authority cited that would authorize using that police power to govern the federal government’s delegated authority to enforce federal immigration laws. The Court could not locate any authority to support such a proposition.
Finally, Virginia claims that ICE enforcement, when masked or without identifying attire or badges, could create dangerous situations that the Mask/Identity Law would remedy. That may or may not be correct depending on the circumstances, but that line of reasoning concerns the policy preferences of federal authorities. Settled doctrine holds that it is federal, not state, agencies, that set the policies directing federal immigration enforcement.
Alessandra Faso, Alexandra Schulte, Gerard Mene, and Tiberius Davis (Department of Justice) appear for the government.
