This is just not legally possible, under any of the existing legal regimes used to designate terrorist groups.
Here’s why...
Here’s why...
The regime for designating Foreign Terrorist Organizations (FTOs) requires that they be “foreign organizations,” which ANTIFA decidedly is not.
casetext.com/statute/united…
casetext.com/statute/united…
And the regime for designating Specially Designated Terrorist Groups (SDGTs) relies on IEEPA, which can only be used against threats that originate “in whole or in substantial part outside the United States.”
ANTIFA doesn’t.
casetext.com/statute/united…
ANTIFA doesn’t.
casetext.com/statute/united…
Moreover, in both cases, it’s far from clear that ANTIFA is anything like the type of cohesive organization that such designations are supposed to be used against—and if it’s not, then it’s not clear what legal effect designating ANTIFA would actually have, or on who.
Nor, frankly, is there much evidence that most (if any) groups that might be labeled as ANTIFA are engaging in anything that looks like terrorism as defined for either regime’s purposes.
Moreover, any U.S.-based group designated under these regimes would have the ability to challenge that designation’s constitutionality.
I don’t think this is a legal fight the USG wants to have, even under the fairly deferential standards that usually apply.
I don’t think this is a legal fight the USG wants to have, even under the fairly deferential standards that usually apply.
I’ve written about the dangerous ways in which the SDGT regime could apply to domestic entities, including loosely affiliated movements.
But that relies on some ties—even if highly attenuated—to qualified foreign entities. Nothing like that exists here.
lawfareblog.com/how-trump-migh…
But that relies on some ties—even if highly attenuated—to qualified foreign entities. Nothing like that exists here.
lawfareblog.com/how-trump-migh…
So what does this designation most likely mean?
Probably something strictly discretionary and internal to the executive branch, with no direct external legal effects—such as a shift in how DOJ investigates ANTIFA, as already seems to be under way.
justice.gov/opa/pr/attorne…
Probably something strictly discretionary and internal to the executive branch, with no direct external legal effects—such as a shift in how DOJ investigates ANTIFA, as already seems to be under way.
justice.gov/opa/pr/attorne…
This stilll has symbolic significance and could have a real impact on how the executive branch uses its existing authorities.
But it’s not the sort of dramatic move that Trump is selling it as, because the tools he wants to look like he’s using just aren’t legally available.
But it’s not the sort of dramatic move that Trump is selling it as, because the tools he wants to look like he’s using just aren’t legally available.
