A Governor Can Say “Terrorist.” That Doesn’t Make It Law.

A collaboration between Lewis McLain & AI

Florida and Texas have spent eight months trying to convert a political judgment into a legal status. The gap between the two is where the Constitution lives.

In American law, terrorist can be three different things: a political accusation, a factual finding in a criminal case, or a formal status created by statute. The campaign against the Council on American-Islamic Relations depends on treating all three as interchangeable.

On November 18, 2025, Texas Governor Greg Abbott issued Proclamation 41-4241 declaring CAIR and the Muslim Brotherhood “foreign terrorist organizations” and “transnational criminal organizations,” barring them from acquiring Texas land and calling for “heightened enforcement.” Florida Governor Ron DeSantis followed in December with Executive Order 25-244. When a federal judge blocked that order in March, Florida rewrote the rules: House Bill 1471, signed April 6, 2026, created a state designation system carrying criminal, corporate, educational, and contracting consequences. It took effect July 1. Within twenty-four hours, DeSantis announced that CAIR was on the list — and CAIR was back in federal court.

CAIR denies supporting terrorism. It has never been federally designated a foreign terrorist organization. That is not a technicality. Congress gave the designation power to the Secretary of State under 8 U.S.C. § 1189 and wrapped it in procedure: findings, classified-record review, notice to Congress, Federal Register publication, revocation and redesignation, and direct review in the D.C. Circuit. A governor’s press conference does not touch that list. There is a federal track running in parallel — an executive order initiating FTO designation of certain Muslim Brotherhood chapters, a domestic-terrorism label for “Antifa,” and bills in Congress to designate CAIR — but that is precisely the point: the federal process exists, and the states are routing around it.

So the dispute presents two questions that officials keep collapsing into one. May a state criticize CAIR, investigate it, and prosecute any crime it can prove? Obviously. May a state build a parallel terrorism regime that punishes a domestic nonprofit — along with its donors, lawyers, employees, students, and landlords — on an executive determination? That is where the constitutional trouble starts.

What has actually happened

Texas moved first and has moved slowest. Attorney General Ken Paxton sued CAIR-affiliated entities in Collin County district court on February 5, 2026, seeking temporary and permanent injunctions to halt their Texas operations under the state’s terrorism ban, its property prohibition for transnational criminal organizations, and its gang and public-nuisance statutes. CAIR’s Texas chapters, represented by the Muslim Legal Fund of America and CAIR’s Legal Defense Fund, sued Abbott and Paxton in the Western District of Texas in November 2025 and moved for a preliminary injunction on January 22, 2026.

That motion has not been decided. What the court has done is grant the state discovery. On May 7, Judge Alan Albright partially granted motions to compel, ordering CAIR to produce records of foreign donors who gave $5,000 or more in any year from 2021 through 2024, records of foreign recipients of $2,500 or more from CAIR over the same period, and itineraries for executive director Nihad Awad’s travel to nine countries between 2019 and 2023. Abbott called it a win; CAIR pointed out that the court had refused his far broader demand for every donor above $5,000 over a decade. Both characterizations are self-serving, and the episode is a reminder that a designation fight is also a compelled-disclosure fight — a domain where the Supreme Court has demanded exacting scrutiny at least since NAACP v. Alabama in 1958, and reaffirmed it in Americans for Prosperity Foundation v. Bonta in 2021.

Florida moved faster and lost first. Executive Order 25-244 directed state and local agencies to deny contracts, employment, funds, and benefits to CAIR and to anyone providing it “material support,” including “expert advice or assistance.” On March 4, 2026, U.S. District Judge Mark Walker preliminarily enjoined it. His framing was unusually direct: “The question before this Court is whether the Governor can, in a non-emergency situation, unilaterally designate one of the largest Muslim civil rights groups in America as a ‘terrorist organization’ and withhold government benefits from anyone providing material support or resources to the group. This Court finds he cannot.” The evidence of chill was concrete — a production company walked away from a podcast agreement; a federation of Muslim organizations cut CAIR-Florida from a conference. The order was preliminary, not a final judgment on every allegation, and it is now on appeal to the Eleventh Circuit.

HB 1471, now Chapter 2026-28, was the response. Most of the bill is not about designation at all: it bars Florida courts from applying “religious law… specifically includ[ing] Sharia law” or foreign law, and its sponsors sold it on that basis. The designation machinery rode along behind. It lets Florida’s Chief of Domestic Security — the head of the Florida Department of Law Enforcement — recommend that an organization be designated a domestic or foreign terrorist organization, subject to ratification by the Governor and Cabinet on seven days’ written notice, with publication in the Florida Administrative Register and review every five years. The consequences are not symbolic. Knowingly providing material support to a designated group is a felony punishable by up to thirty years, whether or not the support was meant to further anything unlawful, and Florida defines material support to include “any property… or service,” expressly including “expert advice or assistance.” Because the statute reaches anyone who “work[s] under the direction and control” of a designated group, its own staff could face felony exposure for continuing to do their jobs. A designated organization is also treated as a “criminal gang” under Chapter 874. Public colleges must expel students who “promote” a designated group in ways deemed to support violence; private schools taking state money may not hire anyone “affiliated with” one, a term the law leaves undefined. A designated group gets thirty days to sue in the Second Judicial Circuit in Leon County — while a companion public-records exemption limits its access to the evidence used against it. Once challenges are exhausted, the state may move to dissolve the organization, though that power reaches only Florida-incorporated nonprofits, not the D.C.-organized CAIR Foundation.

On July 1, FDLE Commissioner Mark Glass recommended designating CAIR, the Muslim Brotherhood, and “Antifa,” alongside more than ninety foreign entities already designated by the federal government — Tren de Aragua, the Sinaloa and Gulf cartels, Iran’s Revolutionary Guard. The padding is telling: for ninety-odd groups the state is mirroring a federal list built through federal process; the novelty is the domestic additions. CAIR and CAIR-Florida sued within hours, represented by the ACLU, the ACLU of Florida, the SPLC, Akeel & Valentine, and Bondurant Mixson & Elmore. Judge Walker denied immediate emergency relief, holding that he needed further briefing and proof that officials were actually following through. As of mid-July, they were not: the Cabinet had not met, FDLE’s implementing rules were unfinished, and the state told the court it could not give a timeline. The parties were due to report back on July 22. The designation, in other words, has been announced but not imposed — which is itself a fact about how these regimes work. The label does its damage on the day of the press conference.

The doctrinal problem

Supporters of state designation point to Holder v. Humanitarian Law Project, where the Supreme Court upheld the federal material-support ban even as applied to speech coordinated with designated foreign groups. But the opinion contains a sentence its state-level admirers rarely quote: the Court “do[es] not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.” The holding rested on the foreign-affairs and national-security posture of federal designation. Lifting the phrase “material support,” attaching it to a domestic nonprofit selected by a politically accountable state official, and assuming the analysis carries over is not a small extension. It is the precise move the Court reserved.

The associational doctrine points the same direction. In United States v. Robel, the Court struck down a bar on Communist-organization members working at defense facilities because it “sweeps indiscriminately across all types of association.” In NAACP v. Claiborne Hardware, it refused to impose liability on nonviolent boycott participants because some in the movement had committed unlawful acts, observing that “guilt by association is a philosophy alien to the traditions of a free society.” Liability requires knowledge of and specific intent to further a group’s unlawful ends. Penalties keyed to “membership,” “affiliation,” or “promotion” do not.

Then there is NRA v. Vullo, decided unanimously in 2024. A New York regulator had pressed insurers and banks to cut ties with the NRA. The Court, building on Bantam Books v. Sullivan, held that government may not use official power to coerce third parties into punishing a disfavored speaker. Walker’s March order was, in substance, a Vullo case: the injury was not what Florida said about CAIR but what Florida told everyone else to do about CAIR. The rule protects the NRA and CAIR on identical terms, which is the point.

Vagueness and due process compound the problem. What does it mean to be “affiliated with” a designated organization? To “promote” one? Fair notice is a constitutional minimum where criminal liability attaches, and it is hard to supply when the evidentiary basis for the designation is itself shielded from disclosure. Secret evidence and post-deprivation review are sometimes defensible in genuine emergencies. They are harder to defend against a thirty-year-old American nonprofit after years of public political conflict.

Federalism supplies the last limit. States prosecute local crime; the national government conducts foreign relations. A state list of “foreign terrorist organizations” that supplements or contradicts the federal one invites preemption and dormant foreign-affairs challenges — Crosby v. National Foreign Trade Council is the obvious analogy. Calling a nonprofit organized under District of Columbia law “foreign” does not fix that.

The model is spreading

Florida and Texas are not isolated. Indiana enacted Senate Bill 256 in March 2026, letting the Governor designate domestic groups and individuals as “affiliates” of federally designated foreign terrorist organizations on a “more likely than not” standard, after Attorney General civil investigative demands. “Affiliate” includes anyone who “acts or acted in any capacity at the order or request” of an FTO — language that could reach purely expressive activity. Designated entities lose state funds, employment, and tax exemption.

Arizona’s HB 2808 would authorize designation where a group’s “ideological alignment demonstrates documented ideological, operational or advocacy alignment” with a federally designated entity — a standard that manages to be circular and boundless at once. Oklahoma has considered two versions of the idea, one keyed to state-law “terrorism,” one to federal designation.

Louisiana is the useful counterexample. SB 388 as introduced would have let the governor designate U.S.-based “foreign terrorist organizations” and imposed contractor certification requirements with long debarment. What passed, effective June 3, 2026, is two pages: it authorizes the division of administration to review whether state contracts are held by a foreign adversary, a federally designated foreign terrorist organization, or their agents. No new designation power, no new list. Keying consequences to an existing federal designation raises far fewer foreign-affairs and procedural problems than a governor-created blacklist, though it can still be applied unconstitutionally.

Not only a Republican temptation

On September 3, 2019, San Francisco’s Board of Supervisors declared the NRA a “domestic terrorist organization” and urged the city to reassess contractors doing business with it. The NRA sued six days later. Mayor London Breed and City Attorney Dennis Herrera then issued a joint memo confirming that the resolution “does not impose duties on City departments, change any of the City’s existing laws or policies,” and that “no department will take steps to assess the relationships between City contractors and the NRA.” The NRA dismissed its suit that November, and both sides claimed victory.

That episode is worth remembering precisely because the politics run the other way. A blacklist built for one enemy is precedent for the next administration’s. Muslim civil-rights groups, gun-rights organizations, racial-justice movements, abortion-rights and anti-abortion networks, environmental activists, and labor organizers will not all hold power at once. Constitutional rules have to survive the rotation.

Governments already have less theatrical tools: state terrorism offenses, conspiracy, racketeering, charitable-fraud enforcement, sanctions compliance, prosecution for threats, arson, or homicide. Texas’s own Civil Practice and Remedies Code already authorizes injunctions against foreign terrorist organizations — but it requires the state to prove the elements in court, which is presumably why a proclamation was more attractive.

The allegations still matter — but labels are not proof

None of this makes CAIR immune from scrutiny. In May 2007, prosecutors publicly filed a list of 246 unindicted co-conspirators in the Holy Land Foundation case; CAIR was on it. Five HLF leaders were convicted of terrorism financing on retrial in November 2008. CAIR was never charged or tried. In 2009 the district court, unsealing an opinion in the dispute over the list, wrote that the government had produced ample evidence of associations among CAIR, other named groups, HLF, and Hamas — but held that publishing the list violated the Fifth Amendment. The Fifth Circuit affirmed the due-process holding in 2010 and pointedly added that those findings “do not amount to a ruling” that the named organizations took part in a criminal conspiracy.

DeSantis has leaned heavily on that 2007 list. It is a strange foundation on which to build a designation, given that both courts to consider it held that publishing the list was itself a violation of due process.

Nihad Awad’s November 2023 remark that he was “happy to see” Gazans “breaking the siege” on October 7 drew a condemnation from the Biden White House; Awad said he was describing rights under international law and that targeting civilians is never acceptable. These are fair subjects for reporting, debate, donor judgment, and — given evidence of a crime — investigation. They do not establish the elements of an offense, and they do not make a supporter, a landlord, or a law student a felon.

Better options

Officials genuinely worried about terrorism have more durable tools. Investigate conduct, not identity, and apply the same evidentiary threshold to Muslim, white-supremacist, anti-government, and left-wing suspects alike. Go to court early: asset restraints, dissolution, and funding cutoffs should follow an adversarial hearing, not a press release. Write narrow definitions tied to intentional assistance for specified violent acts, with carve-outs for advocacy, journalism, legal representation, humanitarian work, worship, and scholarship. Build real review — notice, disclosure of unclassified evidence, a response period, a written decision, time limits, and expedited appeal. Screen vendors for sanctions violations and demonstrated risk under published, viewpoint-neutral rules, not ideological disassociation. And fund what actually reduces harm: threat-assessment teams, hate-crime reporting, victim services, protective security grants.

Residents can apply a short test to any designation: What statute authorizes it? What conduct — not rhetoric — is alleged? What is the burden of proof? Who reviews the evidence? Can the organization respond before penalties attach? Would this official accept the same power in an opponent’s hands?

The bottom line

States are not powerless against terrorism. They can investigate, prosecute, regulate, contract, and coordinate with federal authorities. What they cannot do is substitute proclamation for proof.

A terrorism label wins a news cycle. A conduct-based case, tested before an independent judge under clear law, is what the Constitution requires. If the evidence is real, the government should be willing to prove it. If it is not, the label is not public-safety policy. It is a blacklist.

Sources and further reading

This article is general legal analysis, not legal advice. The Florida and Texas cases are active as of July 31, 2026. The parties in the Florida designation case were due to report to the district court on July 22; the outcome of that report was not publicly available at press time. The March 4 preliminary injunction is on appeal to the Eleventh Circuit (No. 26-10735), and the Texas preliminary-injunction motion filed January 22 remains undecided. Later rulings may change the analysis.

Leave a Reply