Gavin Newsom and the Democrat-dominated legislature in California just lost big time at the Ninth Circuit. And so did Tom Steyer and his pledge to attack immigration enforcement if elected as Newsom’s successor.
Will either pay a price for their arrogance? Perhaps only in embarrassment, as a unanimous panel at the most famously liberal appellate circuit dunked on their determination to go the Full Faubus. The ruling today more firmly enjoins the state of California from enforcing its 2025 law restricting agents of the federal government from enforcing immigration laws:
An appeals court has blocked a California law passed in 2025 requiring federal immigration agents to wear a badge or some form of identification.
The Trump administration filed a lawsuit in November challenging the law, arguing that it would threaten the safety of officers who are facing harassment, doxing, and violence and that it violated the constitution because the state is directly regulating the federal government.
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued an injunction pending appeal Wednesday. It had already granted a temporary administrative injunction to block the implementation of the law.
Newsom, Steyer, and the California legislature apparently never heard of the Supremacy Clause in the US Constitution. In fairness, neither did the district court, apparently, which declined to stop California from regulating operations by federal agents in the state. Judge Mark Bennet knows better.
Much of Bennett’s 16-page ruling just recounts the progression of the dispute. By page 9, however, Bennett makes the obvious argument that states are subordinate to the federal government when it comes to the enforcement of federal law. Bennett has to conduct a tutorial in basic civics that high-school students should already know, at least those educated outside the Golden State:
“[U]nder the intergovernmental immunity component of the Supremacy Clause to the United States Constitution, states may not directly regulate the Federal Government’s operations . . . .” Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996). 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.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 841 (1995) (Kennedy, J., concurring). To that end, the Supremacy Clause, U.S. Const. art. VI, cl. 2, renders “the activities of the Federal Government . . . free from regulation by any state.” Mayo v. United States, 319 U.S. 441, 445 (1943). “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.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). 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. Hancock v. Train, 426 U.S. 167, 179 (1976) (quoting Mayo, 319 U.S. at 447–48); see also McCulloch, 17 U.S. at 436 (explaining that “states have no power” to “in any manner control[] the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government”).
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).” United States v. Washington, 596 U.S. 832, 838–39 (2022) (first alteration added) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion)). 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.” Johnson v. Maryland, 254 U.S. 51, 57 (1920). It imposes conditions upon “a function of government,” and regulates “the right to carry on the business” of the federal government. Mayo, 319 U.S. at 447. In other words, a direct regulation regulates the government qua government; it controls how the government conducts specifically governmental functions.
At this point, most readers may say: Duuuuuh. Apparently, wealthy dilettantes in California need this explained in crayon. Bennett then draws lines so clearly that even Newsom and Steyer should be able to connect the dots:
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. Cal. Penal Code § 13654(d)(2). It seeks to control their conduct in performing law enforcement operations. Id. § 13654(a); see also id. § 13654(d)(1). It purports to override the federal government’s power to determine whether, how, and when to publicly identify its officers. See id. § 13654(a). And in so doing, it aims to regulate the manner and conditions under which federal agents can enforce federal law. See id. Thus, the state law regulates the performance of “governmental action[s]” which are “carried on by the United States itself.” Mayo, 319 U.S. at 448.
These provisions do not merely affect “persons who [a]re acting for themselves and not for the United States.” Id. at 447. They “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.” Johnson, 254 U.S. at 57. Section 10, in short, directly regulates the federal government.
Exactly. And bear in mind that this is not a bug for either Newsom or Steyer, but a feature. Both claim that the state has supremacy over federal officers operating in its jurisdiction, a question settled in Arkansas and Alabama by Dwight Eisenhower and John F. Kennedy. Steyer promised in his campaign platform to arrest and prosecute ICE agents by passing laws prohibiting their enforcement activities, as well as federal officials directing their activities.
Good luck with that, Judge Bennett writes:
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. See Washington, 596 U.S. at 838; City of Arcata, 629 F.3d at 991–92. And that is precisely what the No Vigilantes Act does. The 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. See California, 921 F.3d at 883. Because § 10 of the No Vigilantes Act attempts to directly regulate the United States, we conclude that it is likely unconstitutional.
Either Newsom, Steyer, and the Democrat supermajority in Sacramento are civics idiots, or they are lying demagogues. There are no other options. They are selling insurrection to California voters, and hoping that those voters aren’t smart enough to see through their act.
