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Make Them Pay

If American companies move operations to Mexico, they should carry the cost of our southern neighbor’s dysfunction.

(Chess Ocampo/Shutterstock)

The Mexican government lacks the wherewithal or the will to stem the northward flow of criminal dysfunction from its own putative domains. Mexican civil government and society are to some degree compromised by the cartels, which places limits on what President Andrés Manuel López Obrador can accomplish against them without taking a page out of a more reviled Latin American leader’s book. The conventional array of diplomatic sticks may weaken Mexico’s capacity for handling the problems and entrench resistance to dealing with them; the suggestion that American forces be deployed to Mexican territory to wipe out the cartels has been met, perhaps understandably, with raised hackles from the Mexican state. 

So what is to be done? The influx of drugs and the violence that comes with it will always continue to a lesser or greater degree, no matter how tight our border security. The U.S. is economically invested in Mexican safety and stability; enormous amounts of American capital are currently sunk into Mexican ventures. This investment will only grow as American industry decouples from China and looks for alternatives to the expensive and heavily regulated American labor force. (Despite the best efforts of American industrial policy boosters, the bells of NAFTA and deindustrialization will be difficult to unring, especially given the desired speed of China decoupling.) Angering Mexico with a unilateral military intervention seems undesirable for any number of reasons, let alone running an occupation of any significant portion of Mexican territory.


In short, it is difficult to make the Mexican state do anything, especially without depriving it of the resources it needs to do what we would like it to do. It is impossible, even if desirable, to divorce American interests from Mexico. It is undesirable for things to continue as they are. What tools are at hand?

Let’s go back to those American firms working in Mexico—firms the American state has actual leverage over. Vast dollar amounts of manufacturing have been exported to Mexican maquiladoras. Fine. But what if, in exchange for the economic rents arising from undercutting the American labor market, firms were compelled by American regulation to maintain serious security forces? To add a carrot to the stick, you can imagine an arrangement whereby whatever the firm can take from the cartel is the firm’s, in a kind of parallel of civil forfeiture. 

There are legal mechanisms that allow for this sort of state-backed private law enforcement action. In 2001, then-Rep. Ron Paul of Texas proposed reviving the old, constitutionally sanctioned measure of issuing letters of marque and reprisal—basically charters from the state allowing private entities to take on the nation’s enemies, particularly hostes humani generis, powerful criminals such as pirates against whom a conventional declaration of war is hardly a relevant tool—to pursue the terrorists behind the September 11 attacks. 

“The Constitution gives Congress the power to issue letters of marque and reprisal when a precise declaration of war is impossible due to the vagueness of the enemy. Paul’s bill would allow Congress to authorize the President to specifically target Bin Laden and his associates using non-government armed forces,” the press release for Paul’s bill read (emphasis added). 

“Since it is nearly impossible for U.S. intelligence teams to get close to Bin Laden, the marque and reprisal approach creates an incentive for people in Afghanistan or elsewhere to turn him over to the U.S.…. The war on terrorism is very different from past wars, because the enemy is a group of individuals who do not represent any nation,” the press release continued (emphasis again added). “Western intelligence in the Middle East is exceedingly limited, so we should avail ourselves of the assistance of those with better information to track, capture, or kill Bin Laden.” 

In the end, the government did end up treating terrorists as something legally akin to hostes humani generis, the “illegal enemy combatant,” but mostly in order to engage in controversial extracurricular activities with them at a well-known Cuban rental property. But in Paul’s original proposal, we can see the kernel of a policy that could work in Mexico. Current lawmakers have proposed designating the cartels as terrorist organizations, which would unlock a variety of legal punishments and program funding for pursuing them. Why not take advantage of the underlying legal machinery to do something that would not involve the American national security apparatus—which is to say, one might add uncharitably, something that might actually work?

The bottom line is that Mexico is a weak state. The fact that American law enforcement agencies are allowed to operate south of the border, contrary to all legal theory, is a tacit admission that the Mexican government cannot exert sovereignty over large portions of its claimed territory. A marque and reprisal approach provides for the creation of order without the American government becoming directly involved, encourages that creation of order with the prospect of profit, and creates an additional expense for American firms seeking to use Mexican rather than American labor—a nudge toward figuring out how to bring industry to America proper rather than just somewhere near America.

Make them pay.