President Biden has the legal authority to designate fentanyl and fentanyl analogues as weapons of mass destruction. The source of this legal authority derives from multiple, complementary federal statutes.
First, the International Emergency Economic Powers Act vests the President with broad power “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701. In conjunction with this power, the President “may issue such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by this chapter.” Id. at § 1704. Accordingly, under the plain language of this Act, the President may prescribe definitions—here, that means defining fentanyl as a weapon of mass destruction—as necessary in order to deal with the unusual and extraordinary threat posed by the manufacture, sale, and importation of the synthetic opioid fentanyl into the United States from abroad.
Exercising such authority under the International Emergency Economic Powers Act is both consistent with and in furtherance of the policy objectives of another Act of Congress—namely, the Defense Against Weapons of Mass Destruction Act. That Act defines weapons of mass destruction but in broad and generic terms:
(1)The term “weapon of mass destruction” means any weapon or device that is
intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of—
(A) toxic or poisonous chemicals or their precursors;
(B) a disease organism; or
(C) radiation or radioactivity.
50 U.S.C. § 2302.
Fentanyl and fentanyl analogues fit squarely within this broad definition as they constitute “toxic or poisonous chemicals” that have the “capability” to “cause death or serious bodily injury to a significant number of people through” their “release” or “dissemination.” Consequently, the President’s designation of fentanyl as meeting this broad definition is in perfect harmony with the plain language of the Defense Against Weapons of Mass Destruction Act.
Such designation by the President will also further the stated findings and goals of Defense Against Weapons of Mass Destruction Act, as set forth at U.S.C. § 2301, which include:
“Weapons of mass destruction and related materials and technologies are increasingly available from worldwide sources. Technical information relating to such weapons is readily available on the Internet, and raw materials for chemical, biological, and radiological weapons are widely available for legitimate commercial purposes.”
“[T]he capability of potentially hostile nations and terrorist groups to acquire nuclear, radiological, biological, and chemical weapons is greater than at any time in history.”
“The potential for the national security of the United States to be threatened by nuclear, radiological, chemical, or biological terrorism must be taken seriously.”
“There is a significant and growing threat of attack by weapons of mass destruction on targets that are not military targets in the usual sense of the term.”
“Facilities required for production of radiological, biological, and chemical weapons are much smaller and harder to detect than nuclear weapons facilities, and biological and chemical weapons can be deployed by alternative delivery
means other than long-range ballistic missiles.”
“Covert or unconventional means of delivery of nuclear, radiological, biological, and chemical weapons include cargo ships, passenger aircraft, commercial and private vehicles and vessels, and commercial cargo shipments routed through multiple destinations.”
“Conventional counterproliferation efforts would do little to detect or prevent the rapid development of a capability to suddenly manufacture several hundred chemical or biological weapons with nothing but commercial supplies and equipment.”
“The United States lacks adequate planning and countermeasures to address the threat of nuclear, radiological, biological, and chemical terrorism.”
“The United States lacks effective policy coordination regarding the threat posed by the proliferation of weapons of mass destruction.”
Consistent with the above, the President’s efforts to fight the scourge of fentanyl importation into the United States through the appropriate designation of fentanyl as a weapon of mass destruction will help achieve “effective policy coordination,” serving as an effective countermeasure to address the ever-growing threat of chemical terrorism, improving the interdiction of this highly lethal chemical, and reducing the overall risk of fentanyl-based terrorist attacks in this country.
Such a designation will also further the President’s stated goal of fighting the opioid epidemic, which the President declared a national emergency in 2017. Indeed, fentanyl-related deaths are the unfortunate and inevitable byproduct of the opioid epidemic given that fentanyl is cheaper to manufacturer and orders of magnitude more potent—and, hence, far more lethal—than the pharmaceutical-grade opioids. Not surprisingly, fentanyl is a key source of opioid-related deaths in this country.
The President’s prior designation of the opioid epidemic as a “national emergency” satisfies the prerequisite to trigger his broad authority under the International Emergency Economic Powers Act. As stated in 50 U.S.C. § 1701, the broad authority “granted to the President” by the Act “to deal with any unusual and extraordinary threat” can be exercised only if “the President declares a national emergency with respect to such threat.” Because the President has declared the opioid epidemic a “national emergency,” he has the broad authority to deal with the threat posed by that emergency. That includes the power to designate fentanyl and fentanyl analogues weapons of mass destruction.