In Dealing with the Cartels, Is It Terrorist Designation or Nothing?

By Dan Cadman on December 18, 2019

My colleague Todd Bensman recently wrote a post discussing legislation introduced by Sen. Tom Cotton and others that would create a new section of law in the Immigration and Nationality Act (INA) dealing with transnational criminal organizations (TCOs).

Bensman's blog was a follow-up to the point/counterpoint blogs we'd written taking opposing points of view on whether Mexican cartels should be designated as terrorist organizations under Sec. 219 of the INA.

The new bill would replicate the designation process established by Sec. 219, and would be specific to TCOs, although it would also replicate some of the tools provided for law enforcement to deal with terrorists, such as prosecution for financial and material support, exclusion or deportation under the immigration laws, etc.

Bensman cites me — accurately — this way:

My colleague Dan Cadman, who wrote an essay favoring FTO designation alongside my own against, expressed strong doubt that the Cotton/Cruz bill will go anywhere even though he thinks it's a pretty good idea, too. Congress is too divided and past legislation like this has always inexplicably failed even without the partisan canyon running down the middle of the country, he thinks. Given all that, Cadman told me, it would be better if President Trump just declares FTO war on the cartels unilaterally because otherwise nothing will get done yet again.

Valid point.

I think it's worth elaborating on this. The approach being taken by Cotton, et al. — to amend the INA and create a new designation section for TCOs (which would apply equally to such groups as MS-13, the Latin Kings, and others, as well as cartels) has been tried at least three times before, probably more.

Each attempt has been a variation on the same theme; some have more provisions, some have fewer; some have this and some have that, in the context of legislative language; but what they all have in common is that they emulate/parallel Sec. 219 in its designation process for TCOs. The Cotton bill continues down the same path.

Among the TCO designation attempts that I can cite off the top of my head:

None of those bills gained traction, even when there was a party majority in both chambers of Congress.

Now consider: Even should the Republican party regain control of the House (a doubtful proposition), thus enjoying a majority in both chambers, plus the presidency, such a bill would still likely go nowhere, and the reason for that is simple. With the exception of judicial nominations, Senate Majority Leader Mitch McConnell has refused to move his party to eliminate the filibuster rules that govern the upper chamber. What this means is that unless there is a 60-vote majority, virtually any bill can be derailed and sent into purgatory by a single Democratic senator who refuses to give way, since without 60 votes the Senate cannot even invoke the rule of cloture to shut the filibustering Democrat down (see here and here).

Given these facts, it is inconceivable to me that the Cotton bill has a prayer of passage.

So the choice to jaded pragmatists such as me is between using the existing INA Sec. 219 to designate the cartels and employ the tools that it provides ... or do nothing at all.