TRUMP HAS NO AUTHORITY TO CATEGORIZE FENTANYL AS A WEAPON OF MASS DESTRUCTION

National Review

 

Trump Has No Authority to Categorize Fentanyl as a Weapon of Mass Destruction

By Andrew C. McCarthy

December 20, 2025 6:30 AM

 

Common sense tells us that narcotic drugs are different from WMD. As one would expect, these differences are reflected in law.

 

Law school is a three-year grind. But 40 years later, while I couldn’t tell you a thing about, say, the “rule against perpetuities,” I did internalize the most valuable lesson, which came in the first three hours. It wasn’t a precedent or a statute, just a bit of folk wisdom you mightn’t think would need teaching. But it does, now more than ever.

 

It’s this: If you hang a sign that says “horse” on a cow, that doesn’t make it a horse.

 

Get it? If you do, then you’ll quickly grasp that a Latin American dope dealer is not an alien enemy combatant. The Defense Department, a creature of statute, does not become “the Department of War” by a presidential decree that sends Pete Hegseth to the front of the Pentagon with a plaque and a screwdriver. A foreign terrorist organization does not, by the abracadabra of “designation,” become an authorization for the use of military force — even if we generously assume that a drug gang is the same thing as a terrorist organization. Lindsey Halligan is not the United States attorney for the Eastern District of Virginia. Riots are neither patriotic nor mostly peaceful. The congressionally established John F. Kennedy Center for the Performing Arts is not, by dint of wand-waving by a crony committee, the Trump . . . anything.

 

And fentanyl is not a weapon of mass destruction, even if the “horse” sign in this instance happens to be an executive order.

 

That’s not to disregard the dangers of fentanyl; potentially, it is a deadly substance. In our separation-of-powers framework, however, the chief executive has no constitutional authority to regulate either narcotic drugs or weapons. That power belongs to Congress, which has already defined fentanyl and weapons of mass destruction (WMD) in statutory law. As president, Trump is sworn to faithfully execute Congress’s laws, not to supersede them or make up his own.

 

My Latin is rusty, so I don’t remember if hocus pocus always meant “designate,” but I’m current enough on my Con Law to know that a president only gets to designate with Congress’s permission.

 

Common sense tells us that narcotic drugs are saliently different from WMD. The former are controlled substances targeted to cause specific bodily effects in specific people, a generally salutary outcome when a drug is prescribed by a licensed physician, and a detrimental one when the drug is distributed illegally. WMD, in stark contrast, are objects designed to kill indiscriminately.

 

As one would expect, these differences are reflected in our law.

 

Article I, Section 8, endows Congress with the authority to regulate interstate commerce. That authority was extravagantly construed by the courts in the 20th century, with the result that, for decades, federal statutory law has extensively regulated narcotic drugs and weapons — regulation that, primarily, used to be the bailiwick of state law.

 

The president has no such constitutional authority to regulate commerce, drugs, or weapons. The president executes Congress’s laws and has only whatever regulatory authority Congress confers. As we’ll see, Congress has given the executive branch some narrow regulatory authority regarding fentanyl, but only as to how its analogs may be classified under the drug laws, not to classify it as a weapon — or, for that matter, as anything else.

 

Title 21 of the U.S. Code sets forth the federal narcotics laws (mainly, it’s a codification of the Controlled Substances Act of 1970, with numerous amendments since then). Opioids are included in the definitions of narcotic drugs: “any drug or substance having an addiction-forming or addiction-sustaining liability similar to morphine” (but not including marijuana or cocaine). Fentanyl is an opioid. So is heroin, which I point out because it will be useful for comparison purposes.

 

All drugs are classified as under “Schedules” I, II, or III. For purposes of discussing fentanyl today, we don’t need to deal with Schedule III. (I note in passing that that this week, when President Trump, at the behest of his friends in the cannabis industry, shifted marijuana from Schedule I to Schedule III, he was able to do that only because Congress, which established the schedules, gave the executive branch carefully circumscribed authority (in Section 811) to transfer drugs between schedules.)

 

Fentanyl is a Schedule II opioid (see 21 C.F.R. §1308.12(c)(9)); heroin is a Schedule I opioid (21 C.F.R. §1308.11(c)(11)). What’s the difference? Well, three factors determine in which of the schedules a drug is placed: (1) accepted medical use, (2) abuse potential, and (3) risk of dependence. Heroin is in Schedule I because, in addition to its notorious potential for abuse and dependence, it has no accepted medical use. Fentanyl is in Schedule II because, though addictive and potentially very dangerous, it has accepted medical uses; it is employed as anesthesia and prescribed to alleviate severe pain.

 

Nevertheless, Congress has given the executive branch authority to temporarily classify (or, you might say, to designate) a Schedule II substance as Schedule I if it “is necessary to avoid an imminent hazard to the public safety.” (Lawmakers vested the authority in the Attorney General, who customarily delegates it to the Drug Enforcement Administration, an agency of the executive branch.)

 

In 2025, moreover, Congress enacted the HALT Fentanyl Act, which permanently placed in Schedule I fentanyl-related substances (essentially, these are structurally modified analogues of fentanyl). Fentanyl itself, however, remains in Schedule II because of its legitimate medical uses. One might have thought Trump understood this, and what it implies about the significant limits on his authority, since it was he who signed the HALT Fentanyl Act into law just five months ago.

 

Now, let’s turn to WMD. The term is defined in the federal penal code (Title 18, U.S. Code), at Section 2332a(c)(2). Principally, it is a destructive device (a term adopted from Section 921), which includes (1) bombs, grenades, rockets, missiles, mines, or similar devices that contain any “explosive, incendiary, or poison gas”; or (2) generally, any type of weapon (other than sporting shotguns and ammunition) that expels projectiles by the action of an explosive or propellant. The definition of destructive device has some play in the joints because people bent on mass murder can be inventive; but Congress took pains to stress that the term does not include “any device which is neither designed nor redesigned for use as a weapon.”

 

Clearly, in criminalizing activities connected to destructive devices, Congress wanted to account for both devices designed to kill massively (e.g., bombs) and devices apt to be used by people who are trying to kill massively (high-power firearms). Principally, though, WMD are the former — objects intended to cause mass destruction. Hence, beyond destructive devices, the definition of WMD also includes biological agents and their delivery systems (terms further defined in Section 178), and chemical weapons, defined as:

 

Any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors. [Emphasis added.]

 

Two things here, in Congress’s description of chemical weapons, patently exclude narcotic drugs.

 

First, to qualify as a WMD, a chemical must be a weapon. That is, the purpose of it must be to cause death or serious bodily injury; it cannot be a substance, such as a narcotic drug, that is not designed to kill or injure, even though we all understand drugs can have negative consequences if abused (as can a virtually limitless number of legal substances and objects). To make that point emphatic, the statute requires that, to qualify as a WMD, the chemical in question be toxic or poisonous.

 

To be more concrete, heroin (like other illegal drugs on Schedule I) is a dangerous addictive drug, but it is not a weapon. Unlike a toxic or poisonous chemical, it is not intended to kill or severely injure (even if it can in large doses) — the user is looking to get high, not die, and the dealer wants the paying customer to keep coming back for more. Schedule II drugs, such as fentanyl, have legitimate medical uses; by definition, they are not poisonous or toxic chemicals designed to kill or injure. (Here, it’s worth noting that cocaine, which is also in Schedule II, is patently not a weapon, regardless of the president’s untenable analogy of cocaine-ferrying boats to WMD as he struggles to rationalize his use of lethal force in the Caribbean.)

 

Second, Congress first enacted Section 2332a, the law against using WMD, during the mid-1990s overhaul of counterterrorism law. The point was to address the kind of weapons that jihadists had begun using, or trying to acquire for use, against the United States. It is not enough to say that no one understood narcotic drugs, even those rampantly abused, to be the kinds of WMD Congress was outlawing. By the mid-Nineties, the federal drug laws had been on the books for decades. If Congress had wanted to include fentanyl (which has been around since 1959) or heroin (which dates to the latter half of the 19th century), it would simply have written them into the WMD statute as “fentanyl” and “heroin” — i.e., just as they were already defined in federal law.

 

Congress didn’t do that. Not only were drugs extensively defined and categorized in federal law, Congress had also severely penalized illegal drug trafficking in an array of narcotics-law statutes — including offenses punishable by life imprisonment, and even death in some instances.

 

President Trump may despise “forever wars,” but he sure seems to like pretend wars. The point of the fentanyl “designation” is to shore up his case for using military force against drug traffickers — although its relevance to high seas around Venezuela is hard to fathom since fentanyl is neither produced nor imported from there. At any rate, fentanyl, a dangerous drug but one with legitimate medical uses, is a narcotic, not a weapon of mass destruction akin to a chemical or biological bomb.

 

Of course, the president has a right to his opinion, but he’s got no inherent authority to classify drugs and weapons — or drugs as weapons. Congress has already said what narcotic drugs are (they’re not WMD), and what WMD are (they’re not narcotic drugs). For all the difference it makes legally, President Trump might as well “designate” fentanyl as a horse. It still won’t be one.