Lawful Proscription, Part II: Designation of Antifa as a Foreign Terror Organization

How Trump Administration 47 might effectively dismantle the protest industrial complex

The New Digest is pleased to present Part II of Mr. J.T. Alexander’s guest essay on the legal questions surrounding Antifa and terrorism. The first Part may be found here. Mr. Alexander is an attorney in Alaska with a prior career in counterterrorism and counterintelligence.

Disclaimer: Before we delve too deep, I must head-off any potential misrepresentation. My expertise in counter-terrorism is primarily oriented towards getting in their heads, foiling their plans, breaking their stuff, finding their people, and ultimately removing them from the battlefield. My time as a prosecutor was not spent prosecuting foreign terrorists. As someone that values integrity, I wanted to be sure there was no confusion on that front. Further, these articles are highly simplified, as hard as that may be to believe. The law in this arena can become very complex and very case specific.

On October 8, 2025, President Trump hosted a roundtable featuring, among others, Jack Posobeic, Andy Ngo, Nick Sortor, Cam Higby, Brandi Kruse, and Savannah Hernandez. The purpose of the meeting was singularly narrow: To discuss with particular detail the nature, methods, and organization of Antifa. The independent journalists were apparently selected carefully; individuals that have been covering Antifa in some form or fashion for most of a decade. This meeting reminded me of Benjamin Franklin’s testimony before Parliament, during which the Founder candidly and calmly explained to the Legislature why the taxes they levied were totally incompatible with daily life on the American Frontier.

This meeting served several purposes. First, I’m sure the reason it was publicized was to tell the American people that the Administration is doing something to address leftwing violence. Second, while Trump is certainly more knowledgeable about Antifa than Parliament was about life in Colonial Pennsylvania, it is a fact since time immemorial that politicians have had to seek more detailed information from the normal people that live under their rule. Third, was for journalists like Ngo and Sortor to address the audience that wasn’t in the room: the Democrats and the average American.

The chronically online and terminally political have a bad habit of overestimating how much the average American actually knows or cares. If Trump is to do anything sweeping regarding Antifa, he has to build a case with the public. If Democrats are going to fight him tooth and nail, he is going to need information ammunition. If Bondi is going to carry out strategic litigation to dismantle the “Protest Industrial Complex,” as the Government Accountability Institute has named it, putting their biggest donors on notice will likely block more funding than any legal action. This was an information session just as much as it was a public deterrent and rallying signal.

There is little reason to think the Administration’s attendees were selected with any less care than the journalists. Along with the President were, of special note, Attorney General Pamela Bondi, Secretary of Homeland Security Kristi Noem, and Secretary of State Marco Rubio. The first two might be taken for granted, but the subtext of Rubio’s presence could only be more clear if the President explicitly stated he wanted to explore designating Antifa as a Foreign Terrorist Organization (“FTO”).

Oh, wait; he did exactly that. As of this writing, no declaration has been made, but the discussion did not come out of nowhere.

This would not be the first attempt in American history to proscribe an organization that calls itself “Anti-Fascist.” In 1951, the Democratic Truman Administration, by and through Attorney General James McGrath, designated the Joint Anti-Fascist Refugee Committee as a Communist organization. If you read Part I, you’ll recall that at this point in time the proscription of Communist organizations was perfectly legal and constitutional. At this time, the relevant sub-organization of Antifa was ostensibly a civil aid program oriented towards subsidizing those fleeing Francoist Spain. In an effort to crack down on “Totalitarian, Fascist, Communist, or Subversive” movements, Truman issued Executive Order 9835 which then led to the Attorney General’s designation.

The designation carried limited force behind it; the list was merely a list designed to name and shame, not an order dictating any actions be carried out against its enumerated subjects. The affected organization brought this designation to the Supreme Court, 341 U.S. 123 (1951), as a defamation action. The case failed to produce a clear holding. In a vote of 5-3, the Court did conclude that the case should be remanded to the District Court to explore as a question of fact whether the organization was indeed “Communistic,” but the Court could not agree beyond this point. The deficiency was merely one of due process; the organization hadn’t been provided any chance to defend itself and the Attorney General had not been required to make any case. The posture of the case required the Court to view the record in the light most favorable to the organization, which supported the finding that the Attorney General’s designation was entirely arbitrary because no record to support the designation was provided.

Other than this ruling, the Court could not agree. Justice Hugo Black believed the designation to be a bill of attainder, Justice Frankfurter believed the case to be a simple due process issue, Justice Jackson complained that the Court’s position on similar cases was insufficiently clear, and Justice Douglas presciently concluded that while there was a “fifth column worming its way into government,” the Constitution required even these subversives be granted notice and opportunity to respond. And that was just among those concurring in the judgment. The dissent of three Justices in unison simply concluded that the plaintiffs had no standing because they had suffered no injury; but even if they had, due process did not entitle the organization to notice nor a hearing.

The case does not provide us any bright-line precedent, but it does lend credibility to the Administration’s efforts to target Antifa as a danger to national security. It was within President Trump’s own lifetime that Democrats were leading the charge to label Antifa as a dangerous Communist faction at existential odds with the American way of life. Unlike Attorney General McGrath’s toothless list of subversives, however, Trump’s designation of Antifa as a terrorist organization, foreign or domestic, carries significant legal weight. In Part I we covered the effects and challenges of designating Antifa as a DTO. Today we discuss the challenges of designating Antifa as an FTO.

First we must address the elephant in the room: the legal fiction of domestic vs foreign. When the Constitution was drafted, and for most of its history, there was a meaningful distinction between a foreign organization and a domestic organization. In the modern age this distinction has faded. Nearly all organizations of national domestic importance have an international element to their operations. Similarly, there is hardly an international organization in the world that does not have some domestic presence in the United States. This is the challenge: How does a legal system that draws such a bright line between foreign and domestic address international hybrid threats?

Answer: By either erasing the distinction or cleaving the two apart.

“Foreign Terrorist Organizations.”

There are two primary types of designation as a foreign terrorist which are often conflated. Since it is my style to be as precise as possible, I am going to divide them here. Prior to this point, I have used “FTO” to refer to both types. Henceforth, FTO will refer only to the traditional FTO designated pursuant to 8 U.S.C. § 1189, while the second type, the “Specially Designated Terrorist,” designated pursuant to numerous Executive Orders, will be referred to as an “SDT.” We will address the traditional FTO first.

The procedural history of how and why § 1189 came to be is long, confusing, and beside the point, but I reference it because many of our readers will probably recognize it by a few different names. The actual statute that created this language was the Anti-Terrorism and Effective Death Penalty Act of 1996, but is sometimes erroneously referred to as part of the Immigration and Nationality Act of 1965 which shares much of that Chapter in the United States Code. The PATRIOT Act and Homeland Security Act modified how enforcement of § 1189 is carried out, but they did not create the FTO designation system.

Unlike a DTO, as discussed previously, an FTO designation has a (relatively) clear statutory designation process. But that statutory regime is lacking some definitions. The key law we begin with is 8 U.S.C. §1189(a), which grants to the Secretary of State the power to designated an FTO pursuant to some conditions or elements:

(1) The organization is a foreign organization;

(2) The organization engages in terrorist activity; and,

(3) The terrorist activity of the organization threatens the security interests of the United States.

Whether each element has been met is the ultimate question of a successful FTO designation. Element #3, properly cited as 8 U.S.C. §1189(a)(1)(C), is not justiciable; the courts do not have the power to review it. ’Terrorist activity’ is defined in law, which is simple enough and I think Antifa’s activities suffice for this element without much need for analysis. The real question, the problem with this endeavor, is the very first element, 8 U.S.C. §1189(a)(1)(A): What is “a foreign organization?”

This term is not defined in statute, but this does not necessarily grant the Administration plenary authority to invent a definition. It is beyond reasonable dispute that Antifa is active in the United States and thus cannot be “foreign” to the same extent as previously-designated FTOs. But, it is also beyond reasonable dispute that Antifa has an international presence and support. Can a hybrid domestic-and-foreign organization be designated as an FTO?

We have some caselaw to consider.

In the lead up to the Iranian Revolution, numerous anti-Shah organizations appeared. The successful Revolution, led by Ayatollah Khomeini, utilized the unifying hatred the various dissident groups shared for the Shah to cement a solid resistance movement. Once the Shah was deposed, however, the extreme leftwing organizations were cast aside or proscribed. One such organization is known as the Mojahedin-e Khalq (“MEK”)—the People’s Mojahedin Organization of Iran. The MEK has a complex history with the United States which I’ll abridge for purposes of this article and summarize that by 1997 the United States considered them a terrorist organization. This was not unwarranted; they were behind several bombings and assassinations since the Revolution. They were undoubtedly foreign at even a mere glance.

When the United States designated the MEK under 8 U.S.C. § 1189, the MEK challenged the finding. The official case name is “People’s Mojahedin Organization of Iran v. Department of State,” 182 F.3d 17 (D.C. Cir. 1999), but for brevity I am simply going to refer to this as the MEK Case. The MEK Case did not reach the Supreme Court, but it was—to my knowledge—the case of first impression on the subject. The MEK did not contest their foreign nature, which means we’ll have to address that element later, but the case does provide some insight into how a hypothetical Antifa v. Department of State might unfold.

Among the key explanations of the court’s reasoning in this case, the court noted that “A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.” This did not end the MEK Case in and of itself because Congress created a statutory right of action that covered the suit at 8 U.S.C. § 1189(b)(1). Under this provision, any designated organization has 30 days to challenge that designation before the D.C. Circuit, specifically. The law commands that the the court “hold unlawful and set aside designations” that it finds to be:

(a) Arbitrary, capricious, or an abuse of discretion;

(b) Contrary to a constitutional right, power, privilege, or immunity;

(c) In excess of jurisdiction;

(d) Lacking substantial support in the administrative record; or,

(e) Not in accord with the procedures.

The court found their appointment as the arbitrators of the FTO designation process troubling. Consider: If the Secretary’s findings related to (a)(1)(C) are not subject to judicial review, then how is the court supposed to carry out the role Congress explicitly assigned to it? The court held that any judicial review of these designations, pursuant to the same statute that enabled the designations, would be limited to (a)(1)(A), and (a)(1)(B) only: foreignness and terroristic activity, respectively. Element #3 is in the Secretary’s sole discretion.

The one further item of note from the MEK Case was that a related organization challenged whether it met the definition of an FTO because it considered itself a state, a government, not just an organization. This also was found to be non-justiciable as the recognition of foreign states is also a prerogative of the political branches. (Not that we expect Antifa’s defense would be to proclaim themselves a government, but every little fact counts when finding out was “a foreign organization” means.)

A few years later, the National Council of Resistance of Iran (“NCOR”) filed a similar lawsuit after their own designation pursuant to § 1189. In NCOR v. Department of State, 251 F.3d 192 (D.C. Cir. 2001), plaintiffs were a related organization to the MEK that sought to dodge the FTO designation by operating under a different organization—a concern that has been raised about Antifa. ThecCourt saw right through this and accepted the Secretary’s administrative record that established NCOR and the MEK were, for all intents and purposes, one organization. This case did present a new wrinkle, however. Now the court found that NCOR and the MEK had entered the territory of the United States and established substantial connections with the country, and were therefore subject to Constitutional protections.

Which protections, exactly? Those with experience reading due process decisions know that due process is “not a technical conception with fixed content unrelated to time, place, and circumstances.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). No, it “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Due process is, in fact, only that process which is due.

Before we get to the substantive conclusions as to what process is due, let’s recap: NCOR/MEK is still an undisputed foreign organization, an organization the Secretary has sufficiently alleged is engaged in acts of terrorism, and the Secretary has made the non-justiciable finding that the terrorism is a national security threat; but, the court has found NCOR/MEK have enough of a domestic presence to be protected by the Constitution’s Due Process Clause. This leaves the court to “determine what process is sufficient to afford petitioners the protection of the Fifth Amendment, and when--in terms of pre-deprivation or post-deprivation--that process must be available.”

The court ran through some rather dry balancing tests, but the conclusion, in light of that recap, is what matters. An entity targeted by § 1189, if sufficiently domestic to benefit from the Fifth Amendment, is entitled to notice and an opportunity to be heard - notice of a pending designation, and the opportunity to contest the unclassified administrative record prior to the designation taking effect. Then, once so designated, § 1189 provides for the same judicial review.

No case that I have found has addressed the (a)(1)(A) foreignness element any further. We have no clear answer as to what constitutes “a foreign organization” aside from the plain text. In Part I, I explained a bit about the major theories of constitutional interpretation because the questions presented in that article were more constitutional. In Part II, these questions are largely statutory. Non-lawyers may not realize there are entirely different schools of thought of how to interpret a statute. I’ll keep this brief because only one school really matters here: textualism. The Supreme Court is dominated by textualists who believe the ordinary meaning of the statute is really all that matters; only if the ordinary meaning of a statute is ambiguous will anything else informing its interpretation really be considered.

Textualists prefer when a statute provides its own definitions, but lack thereof does not terminate the textualist interpretation. A common second step is to reference Black’s Law Dictionary. Black’s Second Edition, published in 1910, provides a straightforward definition of “foreign,” as:

Belonging to another nation or country; belonging or attached to another jurisdiction; made, done, or rendered in another state or jurisdiction; subject to another jurisdiction; operating or solvable in another territory; extrinsic; outside ; extraordinary.

This still, unfortunately, does not answer the question of whether a hybrid foreign-and-domestic organization can meet the definition of a “foreign organization.” This would be a matter of first impression for both the D.C. Circuit and the Supreme Court.

I propose an argument in the affirmative, based on the above. First, Black’s definition of “foreign” does not necessarily exclude a domestic-hybrid entity; one may belong to multiple nations or countries, which Antifa does. Second, NCOR established that NCOR/MEK had a domestic presence and that this domestic presence was sufficient to warrant constitutional protections, yet the designation itself was still upheld (after a remand to provide notice and opportunity to be heard). If NCOR/MEK’s domestic presence was sufficient to warrant the constitutional protections of the Due Process Clause, then it was also sufficient to warrant the constitutional protections of the Equal Protection Clause. It cannot be the case that NCOR/MEK was subject to these protections by virtue of a domestic presence, but Antifa was entitled to even more protections by virtue of a more domestic presence. This is a paradox of equal vs more equal.

If the Court were swayed by this argument—no doubt dressed in far more sophisticated argumentation by the government—it would entitle Antifa only to the same protections to which NCOR/MEK were entitled: notice and opportunity. Anything else would create an extra-statutory tiered remedy to § 1189(b) that would no doubt present an Equal Protection Clause problem. The NCOR decision should be dispositive on such an argument.

There is also a tactical consideration here. Should the government attempt to designate Antifa as an FTO, Antifa would then have to respond in organized fashion to challenge the designation before the D.C. Circuit. Should this occur, the refrain that Antifa is “an idea, not an organization” would be obliterated with the added effect that many of the figureheads and financiers would be forced to come forward and expose themselves, if only a little.

However, I concede that this is novel and is absolutely pushing the definition of ‘foreign’ to its logical limit. Of the approximately 60 designated FTOs, Antifa would have a far greater domestic presence than any so previously designated. As a fallback, I would suggest the Government identify and adopt as bright a line of distinction as it is able between domestic Antifa and international Antifa. If domestic Antifa is untouchable due to our magic soil, international Antifa would still be targeted as a separate entity. If nothing else, this would cleave the organization’s finances in two and provide opportunities for gainful employment of the RICO statutes in the event of violations.

For purposes of this article, let’s assume this fails. What else can the Administration try?

“Specially Designated (Global) Terrorists.”

Strictly speaking, this option would require creating a new regime for designations, but I’m going to refer to it as the SDT regime as that is the archetypal model. In 1995, President Clinton created the SDT regime by issuing Executive Order 12947, pursuant to the 50 U.S.C. §§ 1701 et seq., 50 U.S.C. §§ 1601 et seq., and 3 U.S.C. § 301. The SDT list proscribed a specific enumeration of foreign terrorists, with a provision that enabled the Secretary of State, Secretary of the Treasury, and the Attorney General the option to add names to the list. Unlike § 1189, this was not a congressionally-constructed regime, but a simple executive exercise in foreign policy; an order for sanctions pursuant to existing powers Congress had already granted the President. While the SDT regime allowed for the naming of loose organizations, it has been more widely utilized against specific individuals and legal persons.

The key statute in question, the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., was used to levy tariffs against Mexico in 2019, to sanction the International Criminal Court in 2020, to ban TikTok in 2020, and more. This law, generally, grants the President a number of enumerated powers to freeze assets and block transactions in response to a declared national emergency with some foreign nexus. In the event of an actual attack on the United States, IEEPA even allows the President to confiscate property of anyone involved in the attack.

The elements required to label an SDT under EO 12947 were narrow. First, the SDT had to have committed, or posed a significant risk of committing, acts of violence for the purpose or effect of disrupting “the Middle East peace process,” or otherwise supporting such acts. All designations under this particular Executive Order had to meet the same elements. What constitutes “the Middle East peace process” is ambiguous, and perhaps EO 12947 could be utilized against pro-Hamas protest organizations, but in all likelihood it is far too narrow to cover Antifa. Clinton made the first expansion of the SDT regime via Executive Order 13099 in 1998 which famously added Usama bin Laden to the list of SDTs, cutting off the Saudi billionaire heir from his family’s fortune—at least overtly. Still, the Bush Administration found the elements too narrow for its post-9/11 purposes.

The SDT program was replicated in a separate-but-nearly-identical regime after 9/11 by the Bush Administration’s “Specially Designated Global Terrorist” (“SDGT”) designation, Executive Order 13224. While there is a technical difference between SDT and SDGT, I find the processes similar enough that unless the Cabinet themselves are reading this article it would be a waste of time to distinguish between them. Suffice for our purposes that they function the same, except for the expansion of the elements. Unlike the SDT order, 12947, the SDGT order could target anyone that conducted similar acts or levied similar support for any act of terrorism that threatened national security. Several subsequent orders expanding the SDT/SDGT regime have followed, adding names to the list, but this elemental regime is the overarching scheme. For simplicity, I will use SDT to cover both the original SDT and expanded SDGT designation system.

In December 2001, the Bush Administration levied this newer SDT regime against the largest Muslim charity in the United States; the Holy Land Foundation (“HLF”). More than ten million dollars in assets were seized and years of litigation ensued. Ultimately in 2008, after two criminal trials, numerous HLF officers were convicted of having provided support to a designated FTO—Hamas. The support in question was not direct funding, but a complex arrangement of money laundering by which HLF was ultimately paying the widow’s benefits Hamas owed to the families of their suicide bombers. Separate from the criminal prosecutions, the designation as an SDT was upheld after litigation and substantial assets were denied to HLF and Hamas as a result.

Let’s consider a hypothetical future: The Trump Administration has declared a national emergency surrounding International Leftwing Terrorism. In this declaration, he specifically identifies Antifa and related organizations as key actors that create this national security threat so grave that a national emergency is necessary. Then, conceivably, the Trump Administration may issue an Executive Order that simply designates Antifa, specific members, and specific financiers, as SDTs. Every designation must tie back to an international connection, but the designee themselves need not be foreign.

The litigation battle that would ensue would likely resemble that of the HLF; an ostensibly domestic non-violent organization that works for a common good that everybody should support—simple charity. Antifa has always styled itself as a sort of secular Holy Order called upon by the vox populi to wage sacred war against the very incarnation of evil: fascism. But, as elucidated at the beginning of the article, and no doubt known by the reader, they are, in fact, an organization that furthers its political goals by inflicting terror upon the populace. This was known by the Democratic Truman Administration just as well as it is known by the Republican Trump Administration. I do believe that if the Trump Administration can simply get Antifa on trial they will win that trial, just as the Bush Administration ultimately prevailed against the HLF.

Unlike § 1189, the SDT regime does not have a specific “foreign” requirement other than the assets targeted must be reachable by some existing power of the President, which usually requires a foreign nexus in general but not necessarily. Nor does the SDT regime require pre-designation notice, as the courts have upheld the government’s past argument that a notice-free designation prevents a flight of assets. Nor is there a specific statutory carve out permitting a designated entity to challenge its designation before the D.C. Circuit—legal challenges follow the standard Administrative Procedure Act track, which provides the Government more room to defend its designation. Where the FTO designation requires the organization itself participate in acts of terrorism, the SDT regime does not; mere assistance is sufficient. The SDT regime is such a powerful and versatile tool that the Trump Administration has already utilized it in unorthodox fashion to target cartel members. (I would argue that using it against Antifa would be easier than using it against the cartels.)

The SDT regime is, frankly, far more favorable to the Administration on its face than the FTO regime. That is not to say it is entirely without weaknesses.

First is that the previous Executive Orders depended on a declaration of national emergency from the threat of foreign terrorism. Trump has declared numerous national emergencies, but none specifically regarding leftwing political violence. Conveniently, he has just recently issued an Executive Order designating Antifa a DTO. With but a few more strokes of his pen, Trump could begin listing Antifa and its members as SDTs, but a prerequisite declaration of emergency is likely necessary. I would suggest a national emergency specifically highlighting the organized and internationally funded leftwing violence in the United States.

Second, while the SDT designation does not require an element of foreignness, an existing domestic nature of any given SDT-designee allows for a challenge in the courts. However, each challenge will have to be heard on a case-by-case basis and the government’s available grounds for supporting an SDT designation are far more variable than an FTO designation. If the designation complies with the President’s limitations under the IEEPA, it is not arbitrary and capricious, it is supported by a record, and it is not merely being exercised to punish speech—then the SDT designation is likely to be upheld.

Third, since it is a tool born of foreign policy, its exercise is one that carries foreign policy implications. Consider, for example, if George Soros himself and his Open Society Foundation were to be designated as SDTs. Rightwing America would celebrate, myself included, but foreign relations with Europe would absolutely be damaged in the process. There are reasons Trump has not already done this and most of those reasons fall under this category.

Conclusion

My suggestion would be to utilize the traditional § 1189 FTO designation process first. If the government is successful, it would advance the law meaningfully in a positive direction. If the government is unsuccessful, it lures Antifa’s officers and organizations out into the open. Meanwhile, prepare as individualized a list of targets as possible and be ready to issue an Executive Order declaring the appropriate national emergency and sanctioning as many Antifa agents and financiers as possible in one fell swoop. Within hours of the § 1189 proceedings failing, issue the Executive Order to take a second bite at the apple under the SDT regime.

In any case, the administration will need to be prepared to articulate specific foreign ties and a specific national security threat to justify such designations and sanctions. Only if such specific showings are made will this scheme have a chance of success under current law. This would be a legally novel move, to be sure, but one that could logically extend existing law to cover international foreign-and-domestic threats to national security; either by erasing the distinction or cleaving them apart.