There’s no easy way to unmask ICE agents for sure

I don’t quite see the endgame in the increasing calls for state and local action to unmask federal immigration officers. Yes, I’m as disturbed as most people by the images of ICE agents, faces covered, loading individuals into their vans — people who might or might not be in the country illegally, especially since we know that many of them won’t receive much in the way of due process. But to imagine that a new municipal ordinance or state statute can alter this situation is a fantasy — potentially a dangerous one.

First, I don’t think an individual state has the authority to use an anti-mask law against federal agents carrying out their lawful duties. Without going into constitutional detail, suffice it to say that the Supremacy Clause would not allow such interference. That isn’t to say that it’s a good thing to have masked Immigration and Customs Enforcement officers in the streets. But not every problem is susceptible to legislative solutions. And in this case, states can’t interfere with the federal enforcement of federal law.

Second, as I said, I don’t get the endgame here. Suppose a state or locality tries to prohibit arrests by these masked officers. What exactly do supporters of such laws think would ensue? The feds are unlikely to meekly back down. So, let’s imagine the confrontation: armed local police lined up on one side, armed (and masked) federal officers arrayed on the other — maybe inside a crowded workplace or outdoors on a busy sidewalk. Each side shouts orders, commanding the other to stand down. Voices grow angry. Firearms are at the ready. In the combustible atmosphere of the present moment, this isn’t a scene anybody should want to see.

For similar reasons, I’m worried about legislative proposals — like California’s No Vigilantes Act — that would encourage state law enforcement officers to challenge purported federal agents to verify their identity. There’s a sensible principle at work here: All government employees, at every level, should be prepared to identify themselves. And we’ve seen crimes committed by people pretending to be law enforcement. But once again, I find myself worrying about what might happen should state cops demand identification and ICE agents refuse to show it. And again, I cannot fathom why anyone would want to invite such a showdown. So, let’s talk policy instead.

According to the Department of Homeland Security, ICE agents must cover their faces because they and their families are increasingly under threat. That concern might provide good and sufficient justification. I assume that all of us, whatever our views on immigration policy, are united in not wanting officers or their loved ones to come to harm.

But masks, even when worn by officers for the most benign reasons, do more than protect anonymity. They also communicate. They can strike a sinister chord in the observer. Purely through instinct, they can signal a threat. The intent of the wearer makes no difference. We might picture a balaclava pulled over the head of a law enforcement officer or the Guy Fawkes mask worn by an Antifa brawler; we might also imagine anti-riot police with their face shields and gas masks, or the campus protesters with visages hidden by kaffiyehs. When we can’t see the faces of those around us, strange and troubling changes occur. Cognitive theorists have long observed that when we lack facial cues, we tend to get nervous. Perhaps we experience only a certain diffidence or heightened wariness, but another possibility is panic.

Put otherwise, protecting an agent’s anonymity exacts a price on others. The price might be worth paying, but the question is one worth debating. One might even venture to suggest that much of the opposition to masks is driven by the emotions they often evoke.

Perhaps that’s why rules against masking in public are so common. States have adopted them for decades, and so has the federal government. In general, the courts have found them enforceable only against those wearing them with the intent to intimidate or in the course of committing a crime. (Unless it happens to be the Ku Klux Klan. Seriously.) But again, local laws that try to unmask federal officers aren’t likely to be upheld.

That doesn’t mean that localities that object to raids by masked agents can’t do anything to fight back. As I’ve noted before in this space, localities that don’t like what ICE is doing have perfectly legitimate forms of non-cooperation that don’t require obstruction and pose no risk of armed standoffs. In the current state of the law, for example, a sanctuary city could likely get away with refusing to share information with officers unless they promise to conduct their raids unmasked. The point is that what’s needed is persuasion, not force.

A final point. We cannot leave the subject of masks without taking note of an unfortunate irony. There’s considerable pressure on colleges and universities to prohibit students from masking during demonstrations. President Trump himself, in a March post on Truth Social about campus protests, was emphatic: “NO MASKS!”