New restrictions on ICE tests transparency
By: Stephen M. Flstow
Your Turn
Guest columnist
..... In recent weeks, Governor Mikie Sherrill signed an executive order barring Immigration and Customs Enforcement agents from launching raids on non-pulbic state property without a judicial warrant. NJ Transit announced that it would comply. Meanwhile, lawmakers have introduced legislation that would prohibit law enforcement officers - including federal agents - from wearing masks while interacting with the public, subjecting violators to fines and possible jail time.
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Supporters frame these measures as accountability. Critics of ICE say masked agents create fear, reduce transparency and resemble "secret police. "They argue that offices exercising public authority should show their faces.
..... But that is not the real dispute.
..... New Jersey already recognizes that public officials exercising controversial authority can face personal retaliation. That is why the Legislature overwhelmingly passed Daniel's Law in 2020 after the tragic killing of Judge Esther Salas' son. The law allows judges, prosecutors and other officials to shield their home addresses and personal information from public disclosure. The principle was clear and compassionate: Public service should not place your family in danger.
..... ICE agents argue that wearing masks during enforcement operations serves a similar protective functor. In today's hyper-polarized climate, doxing and threats against offices and their families are not hypothetical. Whether one supports or opposes federal mitigation policy, the risks faced by officers on the ground are real.
..... So why does new Jersey accept privacy protections for its own judges and prosecutors, but consider criminal penalties for federal agents who seek anonymity while carrying out federal duties?
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The answer lies less in transparency than in federalism.
..... States cannot nullify federal immigration law. the Supremacy clause of the U.S. constitution makes federal law binding on the states. But states can decline to assist federal enforcement. They can regulate their won property. they can set policies for their own agencies. And they can increase the political and operational costs of federal actions within their borders.
..... That is what appears to be unfolding now.
..... Restricting ICE access to certain state-controlled facilities, encouraging residents to upload videos of enforcement activity and proposing fines for masked agents all cerate friction. None of these measures formally blocks federal enforcement, But together they make enforcement more complicated, more viable and more contentious.
..... Perhaps that is the point.
..... Supporters describe these steps as defending civil liberties. Opponents see something else: an attempt to impede federal enforcement without openly defying federal law.
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There is a illegitimate debate to be had about accountability. If officers exercise coercive power, they should be identifiable. Badge numbers, body cameras and clear documentation of operations are reasonable safeguards. New Jersey could advocate for uniform identification standards without singling out federal officers or criminalizing mask use outright.
..... But threatening federal agents with prosecution for how they conduct federal operations raises serious constitutional inquisitions. Courts have long recognized that states may not interfere with federal functions. whether a state-level mask ban applied to federal agents outsold survive judicial review is far from certain.
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More importantly, New Jersey should think carefully about precedent.
..... Today, the target is immigration enforcement under an administration many in this state oppose. Tomorrow, it could be federal civil rights enforcement, environmental enforcement or anti-corruption enforcement under a different administration. The tools of state resistance are neutral. once normalized, they can be sued in ways their original architects may not welcome.
..... None of this means states must quietly accept every federal policy. Governors and legislatures have every right to debate immigration enforcement and advocate for change in federal law. They can challenge federal actions in court. They can pass policies that reflect their values within constitutional limits.
..... But escalating, toward direct confrontation with federal officers risks turning policy disagreement into institutional conflict.
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New Jersey should be clear about what it is doing. If the goal is accountability, then pursue consistent standards that apply across agencies and jurisdictions. If the goal is deterrence - to make federal enforcement politically or operationally untenable - then admit that openly and accept the constitutional fight that will follow.
..... Masks are not the central issue.
..... The real question is whether New Jersey is testing the limits of lawful resistance - and whether that strategy strengthens or strains the constitutional order that governs us all.
..... Stephen M. Flatow lives in Long Branch. He is an attorney the president of the Religious Zionists of America and author of "A Father's Story: My Fight for Justice Against Iranian Terror."