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Attorney general's office tells House Judiciary Committee S.208 faces uphill court fight after Ninth Circuit decision
Summary
At a House Judiciary Committee briefing, Julio Thompson of the attorney general's civil rights unit said a recent Ninth Circuit ruling raises federalism and preemption questions that make defending S.208 — which limits masking and sets officer identification requirements — legally risky; members discussed pursuing a model policy through the Criminal Justice Council instead.
On Tuesday, the House Judiciary Committee heard from Julio Thompson, co-director of the attorney general's civil rights unit, who said a recent Ninth Circuit opinion raises federalism and preemption questions that could make defending S.208 in court difficult.
Thompson told the committee that "the court issued its decision on April 22" and explained the procedural options the losing party has in that circuit, including a 14-day window to seek reconsideration by a three-judge panel or to petition for en banc review by a majority of the circuit's 29 active judges. He said the appeals court opinion focused on whether a state law that appears neutral on its face nonetheless impermissibly regulates federal law enforcement by dictating how federal agents may carry out their duties.
Why it matters: S.208 would limit masking and require identification for law-enforcement officers. Thompson said those facially neutral provisions may nonetheless present line-drawing problems when they "speak to how federal law enforcement instructed its officers how to carry out their duties," a legal question courts treat as close. That matters because the draft also contains a non-severability clause: if one part is struck down, the entire law would fall, raising the prospect that a preliminary injunction could freeze implementation while litigation proceeds.
Committee members asked whether the attorney general's office would defend similar measures. Thompson said, "we would be obligated and we would be able to defend this law," but he cautioned that the office cannot predict how individual judges will rule and that outcomes are uncertain. Another committee member, drawing on prior Justice Department experience, said there are arguments to be made but estimated the chance of prevailing in court as low, using phrasing that defense prospects were "about a 20% chance."
Members and witnesses debated alternatives. Several suggested directing the law-enforcement review board or the Criminal Justice Council (CJC) to craft a model policy that departments could adopt, or requiring each department to have its own policy within a set timeframe. Supporters of that approach said it would preserve flexibility for diverse agency needs and could avoid triggering the preemption issues that appellate courts scrutinize. Thompson noted existing state enforcement mechanisms added in 2023 that can affect a department's access to the police academy and recertification if a mandated statewide policy is not followed.
Thompson and members also discussed "safe harbor" language that attempts to let agencies adopt a policy consistent with a statute; he said the Ninth Circuit found such language problematic because it can effectively force federal agencies to write policies that align with the state's statute, which the court viewed as direct regulation.
Next steps: Committee members scheduled more testimony and said staff would review policy-language options. The chair announced the committee would pause and reconvene at 2:00 p.m. to hear additional witnesses and an amendment on S.209.
The committee did not take any formal vote on S.208 during this session.
