An excerpt from yesterday’s decision in U.S. v. California, by Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:
[T]he United States seeks an injunction pending appeal that enjoins … enforc[ement of] § 10 of the [California] No Vigilantes Act … against federal agencies and officers. Section 10 requires any non-uniformed “federal law enforcement officer” operating in California, with narrow exceptions, to “visibly display identification” while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State….
We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation….
When “[t]he Framers split the atom of sovereignty,” they put the federal government under the “control[ ] [of] the people without collateral interference by the States,” which “have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere.” To that end, the Supremacy Clause [of the Constitution] renders “the activities of the Federal Government … free from regulation by any state.” “It is of the very essence of supremacy,” the Supreme Court has emphasized, “to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” Therefore, “where ‘Congress does not affirmatively declare its instrumentalities or property subject to regulation,’ ‘the federal function must be left free’ of regulation” by the States.
The Supremacy Clause “prohibit[s] state laws that either ‘regulat[e] the United States directly or discriminat[e] against the Federal Government or those with whom it deals’ (e.g., contractors).” A direct regulation is one that “lays hold of” federal officers “in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient.” It imposes conditions upon “a function of government,” and regulates “the right to carry on the business” of the federal government. In other words, a direct regulation regulates the government qua government; it controls how the government conducts specifically governmental functions….
Section 10 of the No Vigilantes Act attempts to directly regulate the federal government in its performance of law enforcement operations. It expressly applies to federal officers. It seeks to control their conduct in performing law enforcement operations. It purports to override the federal government’s power to determine whether, how, and when to publicly identify its officers. And in so doing, it aims to regulate the manner and conditions under which federal agents can enforce federal law. Thus, the state law regulates the performance of “governmental action[s]” which are “carried on by the United States itself.”
These provisions … “lay[ ] hold of” federal agencies and officers “in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient.” Section 10, in short, directly regulates the federal government….
[T]he Supreme Court has suggested that States may impose “general rules” regulating conduct that any ordinary citizen could perform, like a “statute or ordinance regulating the mode of turning at the corners of streets.” But … [t]he Act does not regulate conduct that any ordinary citizen could perform.
Rather, it applies exclusively to law enforcement agencies and their officers, including federal law enforcement agencies and federal law enforcement officers. The Act thus directly regulates conduct reserved to sovereigns. And so it is barred by intergovernmental immunity, which forbids States from regulating the federal government qua government and from controlling federal governmental functions in any manner and to any degree….
Brett Shumate argued on behalf of the government.
