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DeSantis’ idea to send troops to border wouldn’t lower fentanyl flow, experts say

PolitiFact | Killing people because Border Patrol suspects they are carrying drugs would violate domestic and international law.
“When these drug pushers are bringing fentanyl across the border, that’s gonna be the last thing they do,” Florida Gov. Ron DeSantis said during a Republican presidential primary debate Aug. 23. “We’re gonna use force and we’re gonna leave them stone-cold dead.”
“When these drug pushers are bringing fentanyl across the border, that’s gonna be the last thing they do,” Florida Gov. Ron DeSantis said during a Republican presidential primary debate Aug. 23. “We’re gonna use force and we’re gonna leave them stone-cold dead.” [ MORRY GASH | AP ]
Published Sept. 2

During the first Republican presidential primary debate, several candidates vying for the 2024 nomination said they would use force against Mexican cartels to stop the smuggling of fentanyl into the United States and prevent Americans from overdosing on the potent drug.

Florida Gov. Ron DeSantis said he’d declare a national emergency and send troops to the southern border and to Mexico.

“When these drug pushers are bringing fentanyl across the border, that’s gonna be the last thing they do,” DeSantis said during the Aug. 23 debate at Milwaukee’s Fiserv Forum, which was broadcast on Fox News. “We’re gonna use force and we’re gonna leave them stone-cold dead.”

DeSantis did not expand on his plans to “use force” and leave people “stone-cold dead” if they smuggle drugs into the U.S. And a campaign spokesperson did not answer our questions.

Former Vice President Mike Pence and former Arkansas Gov. Asa Hutchinson, who are also competing for the Republican nomination and were onstage for the debate, said they would cooperate with Mexico in their enforcement strategies.

“We will partner with the Mexican military and we will hunt down and destroy the cartels,” Pence said.

“There would be lethal force used by the Border Patrol law enforcement as needed to protect the border. Absolutely,” Hutchinson said.

PolitiFact examined whether DeSantis’ proposals would limit fentanyl flow into the U.S., and a president’s powers to send troops to Mexico or use lethal force against drug smugglers at the border.

Would lethal force or troops at either side of the U.S. border decrease the amount of fentanyl in the U.S.?

DeSantis’ plan would do “virtually nothing” to stop the flow of fentanyl, said Doug Massey, a public affairs professor at Princeton University. Other experts agreed with him.

Katherine Yon Ebright, an expert on constitutional war powers at the Brennan Center for Justice, said these proposals conflate “the opioid epidemic, the smuggling of fentanyl and the movement of migrants and asylum-seekers.”

Most fentanyl is seized at official ports of entry, not between them, which is where most migrants try to cross the border, U.S. Customs and Border Protection data shows. And in 2022, 89% of convicted fentanyl drug traffickers were U.S. citizens.

The argument that U.S. armed forces would completely dismantle Mexico’s drug trafficking networks “is an idea without basis in reality, even if we set aside all the legal questions,” said Stephanie Brewer, director of Mexico at the Washington Office on Latin America, a research and human rights advocacy group.

She cited a statistic from The Washington Post that fentanyl is so powerful that “a year’s supply of pure fentanyl powder for the U.S. market would fit in the beds of two pickup trucks.”

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When can the U.S. president send troops to Mexico?

The president has the authority to use the military if there is an “imminent attack.” What constitutes an imminent attack has broadened over the years.

Executive branch lawyers have argued that the president “can direct the use of lethal force” if it is in the national interest, Yon Ebright said. However, that’s if the duration and nature of that use of force is “not likely to lead to war.”

Only Congress has the power to declare war under the U.S. Constitution.

There isn’t much Congress can do if it disagrees with the president’s argument that using force is in the country’s national interest, Yon Ebright said. Congress can pass a mainly symbolic nonbinding resolution saying it disagrees or it can limit appropriations for that specific conflict.

Could sending troops to Mexico, without Mexico’s consent, be considered an act of war?

Most experts we spoke with said yes, but they added that it’s unlikely that the Mexican government would respond with force or declare a war against the U.S.

“If any president deployed U.S. military forces to Mexico, that would violate Mexican sovereignty and would be considered an act of war by Mexico,” said William Banks, a national security expert and Syracuse University professor.

Historically, when U.S. presidents have used armed forces for raids or airstrikes in foreign countries against terrorist organizations which are “nonstate organizations just like a cartel,” the host country has consented to it, Yon Ebright said.

“The difference here is that one of the things DeSantis is proposing, and it’s quite shocking, is to use lethal force in Mexico against cartels, potentially without the consent of the Mexican government,” Yon Ebright said.

Can the U.S. president send troops to the U.S. side of the southern border?

Yes, and it’s already been done. President Joe Biden and his predecessors have sent troops to border states to support Border Patrol agents amid increased migration. Troops at the border transport these agents, operate and repair surveillance vehicles and clean brush. They do not engage with migrants or participate in law enforcement, said Joseph Nunn, a Brennan Center expert on the U.S. military’s domestic activities.

But, Nunn said, DeSantis is apparently proposing using the military to enforce civilian law at the border.

The Insurrection Act, a vague law from the 1800s, allows the president to deploy the military domestically to enforce the law, including immigration law. However, the statute is not designed for continuing policy challenges, “which is what we have at the U.S.-Mexico border,” Nunn said.

Can Border Patrol and the military use lethal force within the U.S.?

Yes, but only under limited exceptions.

Immigration officials are allowed to use deadly force, but “only when necessary” in situations where someone poses “imminent danger of serious bodily injury or death” to the officer or another person.

Border Patrol “cannot kill someone solely for entering the United States illegally or carrying drugs,” David Bier, immigration studies director at the Cato Institute, a Washington, D.C.-based libertarian think tank.

Killing people because Border Patrol suspects they are carrying drugs would be considered an extrajudicial killing because it would violate both domestic and international law, Brewer said.

“There are due process concerns, anytime that the federal government is directing law enforcement or the military or whoever to shoot first and ask questions later,” Nunn said.

How have the U.S. and Mexico collaborated before to reduce drug smuggling?

In recent decades, the U.S. has worked with Mexico to limit immigration and drug flows.

The U.S. government has provided billions of dollars to Mexico for security and counternarcotics assistance, according to the Council on Foreign Relations, a New York-based think tank focused on policy issues. Mexico has also deployed its own National Guard members to its borders to mitigate the number of migrants that reach the U.S.-Mexico border.

However, “in recent history the U.S. has not directly sent its own military into Mexico in the way that is apparently now being proposed” by Republican presidential candidates, Brewer said.