National Security and the War on Drugs: Executive Interpretation of the Immigration and Nationality Act by Nicholas J. Orbon

For the past 68 years, the United States has relied on the Immigration and Nationality Act of 1952, also known as the INA, in order to tackle many obstacles including immigration law and matters of national security.[1] The INA provides details regarding removal and detention procedures for aliens, including, those who have been determined by the INA to be members of Foreign Terrorist Organizations (FTOs).[2] Chapter 12 of the INA outlines the parameters of alien classification and specifically provides for definitions of the types of activity that would designate an individual as a “terrorist.”[3]

The provisions of this section of the INA are not only far-reaching but are often politicized. President Trump previously floated the idea of his administration designating many Mexican drug cartels as FTOs.[4] Although the President contemplated this designation, the plan fell through due to the potentially disastrous outcome it would have on diplomatic relations between Mexico and the United States.[5] Today, the Bureau of Counterterrorism in the State Department still maintains a list of all current FTOs.[6]

The Executive Branch’s position on FTO’s, such as the one discussed above, can serve as both a signal an administration’s policy towards tackling potential threats invoking national security and policy in regard to the use and sale of illegal drugs.[7] The Legislative Branch also has, in the past, attempted to amend the INA to designate local gangs within the United States as FTOs.[8] Specifically, legislators have made efforts to amend the INA to apply to local groups such as MS-13 and the Latin Kings.[9] In addressing the previous attempts by Congress to amend the INA to include such provisions, Dan Cadman, author of “In Dealing with the Cartels, Is It Terrorist Designation or Nothing?”details that even with a majority in both houses, bills attempting to expand the INA to reach gangs located within the U.S have never gained significant traction.[10] These efforts raise the question: how much of the drug war can be fought on the federal level through immigration law or policy? The answers to these questions may not lie within the provisions of the INA itself. Instead, they may lie within the history of illegal narcotics in the United States and past attempts to regulate them. 

The “War on Drugs” began in the United States as early as the 1800’s and, at that time, focused on regulating various narcotics such as morphine and opium.[11] Statutes like the Smoking Opium Exclusion act in 1909and the Controlled Substance Act were early examples of Congress and the Executive Branch attempting to thwart the use and sale of these drugs within the U.S through narrowly tailored legislation.[12] Years later, President Nixon continued this trend by officially waging the “War on Drugs,” during his administration.[13] Yet, despite years of litigation, regulation, and campaigning, drug use in the United States is still considerably widespread and takes lives on a regular basis.[14]

Outside of our legislature, the “War on Drugs” is also being fought by state and federal law enforcement through investigations and raids of active cartels located within the U.S.[15] In March of this year, an operation referred to as “Project Python,” led by the Drug Enforcement Administration, yielded 20 kilograms of illegal drugs and $20 million in cash from Jalisco New Generation Cartel, known as CJNG.[16] “Officials say the cartel has hubs in Los Angeles, New York, Houston, Chicago and Atlanta and is a major presence on the Southwest border.”[17] Aside from the amount of drugs and money seized by the government, the investigation also resulted in 600 arrests and over 300 indictments.[18] The Department of Justice commented that the CJNG is still an active presence in many cities across the country.[19] In fact, the CJNG is the most expansive cartel currently in Mexico now has a presence in twenty-four states as opposed to occupying only four in 2010.[20] Decades later, the “War on Drugs” is still being fought and the Trump administration appears to believe that one way to effectuate change is to use the INA, including by designating certain cartels as FTOs.[21]

When addressing the policy considerations underlying the decision to contemplate designating cartels as “terrorist organizations,” it is important to analyze how and why the administration would push for such classification. It is possible that such classification is an effort to use the INA to tackle policy goals under the guise of national security. However, there are many who claim that legislation to fight the pervasive drug culture within the U.S fits into the scope of national security.[22] The amount of illegal drugs smuggled across and between Mexico and the United States annually calls into question our nation’s sovereignty and precedent going forward with the conduct of future administrations.[23] Many Americans might agree that if the federal government feels as though these classifications would be beneficial then they should be able to utilize the INA in this manner going forward. Others might disagree and point to constitutional issues, including, potential due process concerns for individuals who might be labeled under such classification. Although it is difficult to predict how the Biden Administration might attempt to use the INA, it is important to discuss the features of the INA and its role in our political system.

[1] See generallyDepartment of Homeland Security, Immigration and Nationality Act

[2] Immigration and Nationality Act (October 21, 2020)

[3] Id. at §1182. 

[4] Bobby Allen, Trump Floating Terrorist Label For Mexican Cartels Brings Fears Of Drone Strikes(November 27, 2019)

[5] Patrick J. McDonnell, Trump suspends plan to classify Mexican cartels as terrorist groups(December 6, 2019)

[6] Supra note 4

[7] See id

[8] Dan Cadman, In Dealing with the Cartels, Is It Terrorist Designation or Nothing?(December 19, 2019)

[9] Id

[10] Id

[11] Editors, War on Drugs(December 17, 2019)

[12] See id.

[13] Id.

[14] Id

[15] See Michael Kosnar, U.S. probe into Mexican drug cartel yields 750 arrests, (March 12, 2020)

[16] Id.

[17] Id

[18] J. Edward Moreno, Feds arrest over 600 alleged Mexican cartel members(March 11, 2020)

[19] Id.

[20] Id.

[21] Supra note 4.

[22] See id

[23] See id

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