The question isn’t whether it’s a good thing, or even just fine, that ICE and CBP agents round up random people who appear to be foreigners with neither visible names nor shield numbers such that you can identify who engaged in illegal conduct. Stephen Miller thinks that’s swell, even if Gavin Newsome and others do not. The question is whether the State of California can make it a crime for federal agents to do so within its borders. The Ninth Circuit, unsurprisingly, in an opinion by Judge Mark Bennett, held it cannot.

Section 10 generally mandates the visible display of identification by law enforcement officers operating within the State. See Cal. Penal Code § 13654. It provides that any “law enforcement officer operating in California that is not uniformed . . . shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties.” Id. § 13654(a). “Law enforcement officer” is defined to include “any federal law enforcement officer.” Id. § 13654(d)(2). And “‘[e]nforcement duties’ means active and planned operations involving the arrest or detention of an individual, or deployment for crowd control purposes.” Id. § 13654(d)(1). An officer’s “willful and knowing violation of [§ 10] is punishable as a misdemeanor” under California law. Id. § 13654(c).

There are exceptions built in for all the expected situations where there are legitimate reasons why a federal agent would need to have his relationship to law enforcement concealed, ranging from undercover to protective details. The law is about as reasonable toward the utility and safety of federal agents as it gets, exempting a fairly wide swathe of law enforcement personnel from the law’s mandate. But being reasonable isn’t the same as being constitutional.

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.

While the federal government can’t force states to do its bidding, even though Trump appears unfamiliar with the concept that he’s not the absolute ruler of everything in America, the Constitution expressly provides that federal law is supreme, and thus states cannot impair the authority of the federal government to do its job as it sees fit.

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.”

Does that mean the feds can, for example, authorize Seal Team 6 to murder political rivals and the states can do nothing about it? It’s one thing for the president to be immune from prosecution for his crimes, but is the state powerless to stop a rogue government from doing whatever it pleases? Not quite.

The Supremacy Clause does not “bar[] all state regulation which may touch the activities of the Federal Government.” Hancock, 426 U.S. at 179 (emphasis added). For example, the 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.” Johnson, 254 U.S. at 56. But the Supremacy Clause does bar direct state regulation of the federal government.

Presumably, since murder is a crime in general, and applies to the conduct of all citizens, it would apply with equal force to federal agents. Then again, since the “No Vigilantes Act” applies to all law enforcement, including state and local, could it then arguably fall within the “general rules” exception to the Supremacy Clause?

[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

While the Ninth Circuit distinguished the issue by holding that § 10 expressly applies to federal agents rather than generally applying to all law enforcement officers without specific mention of federal agents, it would appear that rewriting the law without specific mention of federal agents wouldn’t be enough, as “regular citizens” (as opposed to irregular citizens?) are under no duty to wear name tags or show identifying numbers, even though “regular citizens” don’t engage in law enforcement conduct which serves as the initiation of the obligation.

Does this make it good, or even fine, that federal agents wearing masks and having no manner of individual identification can run roughshod over the rights of people in the United States, citizen or noncitizen alike? Of course not, but at least for now and under this administration, it’s lawful.