On October 2, President Donald Trump declared to Congress that the United States has entered a “noninternational armed conflict” with drug cartels. “Noninternational armed conflict” entails war, and the cartels in question are the eight non-state terrorist actors designated by the Department of State back in February. But as history tells us, wars on drugs are a difficult case to crack. 

The Illicit Part

The Trump Administration has targeted lethal synthetic opioids like fentanyl for leading to tens of thousands of fatal overdoses. As of April, the Centers for Disease Control and Prevention (CDC) reported that drug overdose deaths have actually returned to pre-pandemic levels. While reducing the supply of unauthorized drugs may seem to be a solution, physicians and researchers have warned that the White House’s proposed budget cuts will hinder addiction treatment and overdose response. Separately, attacking South American transporters also sidelines a key part of the pipeline, with the Drug Enforcement Agency reporting that China is the main source for fentanyl precursor molecules. 

What Has Happened

President Trump’s day-one Executive Order calling the flow of drugs a national emergency has been used to justify militarizing the Southern Border, tariffs, and attacks on immigration. Specifically in regards to cartels, Trump has deployed the military, without Congressional oversight, has struck numerous Venezuelan boats allegedly transporting drugs, and deployed ships to the Caribbean. In response, Venezuelan President Nicolás Maduro has called for the country to prepare for a US attack and is arming militias. On the immigration front, the Supreme Court is allowing the administration to remove the temporary legal status of over 300,000 Venezuelan migrants.  

Is this (war) Illegal?

Declaring war is a power outlined to Congress by the Constitution, but military action is done under the executive branch. After the 9/11 attacks, President George W. Bush unilaterally engaged forces to counter terrorism, a move continued by President Barack Obama. These military attacks were justified under the Authorization for Use of Military Force of 2001 (AUMF) resolution passed by Congress and signed by President Bush, but the Supreme Court in 2006 also ruled that the president needed Congressional approval to try foreign nationals and that detainees had rights under the Geneva Conventions.

Now, however, civilians are allegedly being killed without trial, a move that is facing bipartisan scrutiny. Legal scholars have also noted that foreign drug smuggling is not on par with an “armed attack” and, unlike AUMF in 2001, Congress has not yet approved of military force against cartels. Even if Congress passes the resolution “Authorizing the use of military force against certain Mexican cartels” (H.J.Res.81, currently referred to the House Committee on Foreign Affairs), legal questions arise about whether attacks prior to the resolution's passing were constitutional. 

Conclusion 

What we see today largely echoes the War on Drugs championed by Presidents Richard Nixon and Ronald Regan in the 1970s-80s. South American cartels were criminalized, the issue politicized, and enforcement intensified, all while demand for, and use of, illicit drugs was not properly addressed. But beyond drugs, this presidential declaration of war presents unique challenges to what the bounds of presidential power are.

Read more here:

• Charlie Savage and Eric Schmitt, The New York Times

• Miranda Jeyaretnam, TIME

• Reuters