The Mexican cartels, also known as Drug Trafficking Organizations (DTOs) or “El Narco,” are responsible for using precursor chemicals purchased from China illicitly to manufacture fentanyl, an analgesic 50–100 times more powerful than morphine, and smuggling that drug across the southwest border.REF Witting or unwitting illicit fentanyl use has led to thousands of overdose deaths and poisonings over the past few years.REF In response, some Members of Congress and private parties have debated or urged the Biden Administration or Congress (1) to designate those DTOs as Foreign Terrorist Organizations (FTOs) and (2) to use military force to snuff out the fentanyl laboratories and cartels.REF The two issues are distinct and should be discussed separately.

Designation of Mexican DTOs as FTOs

The issue whether Mexican DTOs should be designated as FTOs has been battered around for some time.REF The principal argument against such a designation is that the cartels are motivated by profit, not politics, religion, or another comparable ideology, and that they do not wish to overthrow the current government in favor of one with different political, economic, or social underpinnings as has happened in Russia, China, Cuba, and elsewhere. That argument is unpersuasive.REF

To qualify as an FTO, (1) an entity must be foreign, (2) it must engage in terrorist activity, and (3) that activity must threaten the security of this nation or its citizens.REF The first element is a given; the second and third are easily proved. The production and smuggling of massive quantities of illicitly made fentanyl, the disguised addition of that fentanyl to other powdered drugs like cocaine, the fabrication of fentanyl into counterfeit pills resembling prescription drugs such as Adderall, and the massive number of deaths those activities causeREF all satisfy the last two elements. The relevant statutes require no additional proof of political motivation by individuals or groups, so the cartels’ profit-seeking goal is not an automatic disqualification.

In addition, the cartels do seek to supplant the elected Mexican officials as the responsible body in any government’s most elementary function: protecting the public against outlaws. The cartels seek to control the Mexican law enforcement system through the use of bribery, threats, and physical force—the “plata o plomo” (silver or lead) form of governance. In effect, the cartels operate as a quasi-government throughout Mexico by controlling the Mexican government’s application of force to guarantee the rule of law.REF We have seen that phenomenon before. Just as the Ku Klux Klan used the threat and fact of violence to operate as a shadow government throughout the former Confederate states during Reconstruction,REF the cartels systematically use bribery and violence to prevent legitimate Mexican government officials from enforcing the laws prohibiting drug trafficking and from guaranteeing that the rule of law applies to everyone throughout that nation.REF That should be sufficient under federal law even though the cartels gladly leave the remaining, quotidian features of governance—such as public health, education, and sanitation—to elected officials.

Debating that issue, however, is the wrong approach to this issue. The better inquiry is to ask whether such a designation offers the federal government any tools to fight drug trafficking that it now lacks. There, the legal answer is, “No.” There are only two apparent tools that a terrorist designation would supply. The Justice Department could take advantage of an express congressional desire to exercise extraterritorial jurisdiction over terrorist activities affecting this nation or its people, and it would be a crime to provide material assistance to the cartels.REF Yet the statement of extraterritorial jurisdiction has not prevented our prosecution of senior cartel officers, and the material assistance ban is unnecessary to prosecute drug-trafficking kingpins. The El Chapo case illustrates the validity of both conclusions.REF

Finally, designating the Mexican cartels as FTOs would exacerbate an already existing problem: viz., the massive number of illegal immigrants pouring across the southwestern border due to the Biden Administration’s refusal to enforce the territorial sovereignty of this nation and the southwest border in particular. Coupled with the cartels’ effective control of vast portions of Mexico, the designation would enable both Mexicans and others seeking to enter the United States from Mexico to claim a protection defense against removal on the ground that they are seeking to escape from a terrorist-run nation.REF Even if that claim were ultimately to fail in the immigration courts—and most do—it would take at least three, four, or more years of litigation for a final resolution. It would be unreasonable to allow so much fraud for the alien’s purpose of entry and delay to continue for that period. In addition, regardless of how that litigation plays out, most applicants wind up staying in this country despite receiving a final order of removal.

Authorization for the Use of Military Force Against the Mexican Cartels

Designation of any organization as an FTO does not itself authorize the President to use military force outside the territory of the United States to conduct kinetic activity against the cartels. Neither the immigration code nor the drug code expressly authorizes such action,REF and the War Powers Resolution bars the executive and judicial branches from interpreting existing laws as impliedly authorizing it.REF The President would need specific authorization from Congress to use the military in that mannerREF or invoke his inherent authority as commander-in-chief to protect the national security of the United States,REF a subject that has been the source of much debate and is beyond the scope of this Backgrounder.

Conclusion

Yale Law School Professor Alexander Bickel once wrote that “[n]o answer is what the wrong question begets.”REF The relevant question is not whether the United States can and should designate the Mexican DTOs as FTOs under current law. The pertinent question is whether that designation would grant the nation any additional necessary tools to fight the cartels’ drug trafficking-efforts. If the answer is, “Yes,” the correct remedy is not for Congress to declare the cartels FTOs, but to grant the executive branch whatever additional powers it needs to address the cartels’ drug trafficking, especially their fentanyl smuggling.

Ultimately, however, the problem that America faces today is not a lack of tools to fight the cartels. It is a lack of will to use the tools we already have—and new legislation cannot solve that problem.

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The author would like to thank John Malcolm, Derrick Morgan, Bill Poole, Lora Reis, and Cully Stimson for helpful comments on an earlier version of this paper.

Appendix

1. 8 U.S.C. § 1182 (2018) provides in part as follows:

§ 1182. Inadmissible aliens

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

* * * * *

(3) Security and related grounds

* * * * *

(B) Terrorist activities

(i) In general

Any alien who—

(I) has engaged in a terrorist activity;

(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));

(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;

(IV) is a representative (as defined in clause (v)) of—

(aa) a terrorist organization (as defined in clause (vi)); or

(bb) a political, social, or other group that endorses or espouses terrorist activity;

(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);

(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;

(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;

(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or

(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years,

is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.

(ii) Exception

Subclause (IX) of clause (i) does not apply to a spouse or child—

(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or

(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

(iii) “Terrorist activity” defined

As used in this chapter, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any—

(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain),

with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

(iv) “Engage in terrorist activity” defined

As used in this chapter, the term “engage in terrorist activity” means, in an individual capacity or as a member of an organization—

(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity;

(III) to gather information on potential targets for terrorist activity;

(IV) to solicit funds or other things of value for—

(aa) a terrorist activity;

(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;

(V) to solicit any individual—

(aa) to engage in conduct otherwise described in this subsection;

(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

(v) “Representative” defined

As used in this paragraph, the term “representative” includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

(vi) “Terrorist organization” defined

As used in this section, the term “terrorist organization” means an organization— (I) designated under section 1189 of this title;

(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or

(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).

2. 8 U.S.C. § 1189 (2018) provides in part as follows:

§ 1189. Designation of foreign terrorist organizations

(a) Designation

(1) In general

The Secretary is authorized to designate an organization as a foreign terrorist organization in accordance with this subsection if the Secretary finds that—

(A) the organization is a foreign organization;

(B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism); and

(C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

3. The Foreign Narcotics Kingpin Designation Act, Title VIII of the Intelligence Authorization Act for Fiscal Year 2000, Pub. L. No. 106-120, 113 Stat. 1606 (codified at 21 U.S.C. §§ 1901––1908 (2018)), provides in part as follows:

§ 1901. Findings and policy

* * * * *

(b) Policy

It shall be the policy of the United States to apply economic and other financial sanctions to significant foreign narcotics traffickers and their organizations worldwide to protect the national security, foreign policy, and economy of the United States from the threat described in subsection (a)(4).

§ 1902. Purpose

The purpose of this chapter is to provide authority for the identification of, and application of sanctions on a worldwide basis to, significant foreign narcotics traffickers, their organizations, and the foreign persons who provide support to those significant foreign narcotics traffickers and their organizations, whose activities threaten the national security, foreign policy, and economy of the United States.

§ 1904. Blocking assets and prohibiting transactions

(a) Applicability of sanctions

A significant foreign narcotics trafficker publicly identified in the report required under subsection (b) or (h)(1) of section 1903 of this title and foreign persons designated by the Secretary of the Treasury pursuant to subsection (b) of this section shall be subject to any and all sanctions as authorized by this chapter. The application of sanctions on any foreign person pursuant to subsection (b) or (h)(1) of section 1903 of this title or subsection (b) of this section shall remain in effect until revoked pursuant to section 1903(h)(2) of this title or subsection (e)(1)(A) of this section or waived pursuant to section 1903(g)(1) of this title.

(b) Blocking of assets

Except to the extent provided in regulations, orders, instructions, licenses, or directives issued pursuant to this chapter, and notwithstanding any contract entered into or any license or permit granted prior to the date on which the President submits the report required under subsection (b) or (h)(1) of section 1903 of this title, there are blocked as of such date, and any date thereafter, all such property and interests in property within the United States, or within the possession or control of any United States person, which are owned or controlled by—

(1) any significant foreign narcotics trafficker publicly identified by the President in the report required under subsection (b) or (h)(1) of section 1903 of this title;

(2) any foreign person that the Secretary of the Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, designates as materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a significant foreign narcotics trafficker so identified in the report required under subsection (b) or (h)(1) of section 1903 of this title, or foreign persons designated by the Secretary of the Treasury pursuant to this subsection;

(3) any foreign person that the Secretary of the Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, designates as owned, controlled, or directed by, or acting for or on behalf of, a significant foreign narcotics trafficker so identified in the report required under subsection (b) or (h)(1) of section 1903 of this title, or foreign persons designated by the Secretary of the Treasury pursuant to this subsection; and

(4) any foreign person that the Secretary of the Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, designates as playing a significant role in international narcotics trafficking.

(c) Prohibited transactions

Except to the extent provided in regulations, orders, instructions, licenses, or directives issued pursuant to this chapter, and notwithstanding any contract entered into or any license or permit granted prior to the date on which the President submits the report required under subsection (b) or (h)(1) of section 1903 of this title, the following transactions are prohibited:

(1) Any transaction or dealing by a United States person, or within the United States, in property or interests in property of any significant foreign narcotics trafficker so identified in the report required pursuant to subsection (b) or (h)(1) of section 1903 of this title, and foreign persons designated by the Secretary of the Treasury pursuant to subsection (b) of this section.

(2) Any transaction or dealing by a United States person, or within the United States, that evades or avoids, or has the effect of evading or avoiding, and any endeavor, attempt, or conspiracy to violate, any of the prohibitions contained in this chapter.

(d) Law enforcement and intelligence activities not affected

Nothing in this chapter prohibits or otherwise limits the authorized law enforcement or intelligence activities of the United States, or the law enforcement activities of any State or subdivision thereof.

(e) Implementation

(1) The Secretary of the Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, is authorized to take such actions as may be necessary to carry out this chapter, including—

(A) making those designations authorized by paragraphs (2), (3), and (4) of subsection (b) of this section and revocation thereof;

(B) promulgating rules and regulations permitted under this chapter; and

(C) employing all powers conferred on the Secretary of the Treasury under this chapter.

(2) Each agency of the United States shall take all appropriate measures within its authority to carry out the provisions of this chapter.

(3) Section 552(a)(3) of title 5 shall not apply to any record or information obtained or created in the implementation of this chapter.

§ 1906. Enforcement

(a) Criminal penalties

(1) Whoever willfully violates the provisions of this chapter, or any license rule, or regulation issued pursuant to this chapter, or willfully neglects or refuses to comply with any order of the President issued under this chapter shall be—

(A) imprisoned for not more than 10 years,

(B) fined in the amount provided in title 18 or, in the case of an entity, fined not more than $10,000,000,

or both.

(2) Any officer, director, or agent of any entity who knowingly participates in a violation of the provisions of this chapter shall be imprisoned for not more than 30 years, fined not more than $5,000,000, or both.

(b) Civil penalties

A civil penalty not to exceed $1,000,000 may be imposed by the Secretary of the Treasury on any person who violates any license, order, rule, or regulation issued in compliance with the provisions of this chapter.

(c) Judicial review of civil penalty

Any penalty imposed under subsection (b) shall be subject to judicial review only to the extent provided in section 702 of title 5.

§ 1907. Definitions

As used in this chapter:

(1) Entity

The term “entity” means a partnership, joint venture, association, corporation, organization, network, group, or subgroup, or any form of business collaboration.

(2) Foreign person

The term “foreign person” means any citizen or national of a foreign state or any entity not organized under the laws of the United States, but does not include a foreign state.

(3) Narcotics trafficking

The term “narcotics trafficking” means any illicit activity to cultivate, produce, manufacture, distribute, sell, finance, or transport narcotic drugs, controlled substances, or listed chemicals, or otherwise endeavor or attempt to do so, or to assist, abet, conspire, or collude with others to do so.

(4) Narcotic drug; controlled substance; listed chemical

The terms “narcotic drug”, “controlled substance”, and “listed chemical” have the meanings given those terms in section 802 of this title.

(5) Person

The term “person” means an individual or entity.

(6) United States person

The term “United States person” means any United States citizen or national, permanent resident alien, an entity organized under the laws of the United States (including its foreign branches), or any person within the United States.

(7) Significant foreign narcotics trafficker

The term “significant foreign narcotics trafficker” means any foreign person that plays a significant role in international narcotics trafficking, that the President has determined to be appropriate for sanctions pursuant to this chapter, and that the President has publicly identified in the report required under subsection (b) or (h)(1) of section 1903 of this title.

4. 22 U.S.C. § 2656f (2018) provides in part as follows:

§ 2656f. Annual country reports on terrorism

(a) Requirement of annual country reports on terrorism

The Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, by April 30 of each year, a full and complete report providing—

(1)(A) detailed assessments with respect to each foreign country—

(i) in which acts of international terrorism occurred which were, in the opinion of the Secretary, of major significance;

(ii) about which the Congress was notified during the preceding five years pursuant to section 4605(j) of title 50; and

(iii) which the Secretary determines should be the subject of such report; and

(B) detailed assessments with respect to each foreign country whose territory is being used as a sanctuary for terrorists or terrorist organizations;

* * * * *

(d) Definitions

As used in this section—

(1) the term “international terrorism” means terrorism involving citizens or the territory of more than 1 country;

(2) the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents;

(3) the term “terrorist group” means any group practicing, or which has significant subgroups which practice, international terrorism;

(4) the terms “territory” and “territory of the country” mean the land, waters, and airspace of the country; and

(5) the terms “terrorist sanctuary” and “sanctuary” mean an area in the territory of the country—

(A) that is used by a terrorist or terrorist organization—

(i) to carry out terrorist activities, including training, fundraising, financing, and recruitment; or

(ii) as a transit point; and

(B) the government of which expressly consents to, or with knowledge, allows, tolerates, or disregards such use of its territory and is not subject to a determination under—

(i) section 4605(j)(1)(A) of title 50;

(ii) section 2371(a) of this title; or

(iii) section 2780(d) of this title.