Orrin Hatch, a Republican, represents Utah in the U.S. Senate.
Over the weekend, The Post published an article accusing Congress of passing a bill last year that gutted the Drug Enforcement Administration's ability to stem the opioid crisis. The article asserted that the legislation was spearheaded by members of Congress in the pocket of the drug industry, including Rep. Tom Marino (R-Pa.), President Trump's former nominee to be director of the Office of National Drug Control Policy.
The Post missed the mark.
The article paints a misleading picture in which the bill’s sponsors steamrolled a cowed DEA into submission and then hoodwinked their congressional colleagues into passing something they didn’t understand. Nothing could be further from the truth.
At issue was the DEA’s authority to issue what’s called an immediate suspension order. This is an order that, without prior notice, terminates a distributor’s ability to distribute controlled substances. It’s an extraordinary measure intended to supplement standard agency procedures in cases of “imminent danger.”
The problem was that the DEA's statute did not specify what would constitute "imminent danger," leaving the agency with broad discretion to cut off drug supply chains without warning. Because that action would result in all users losing access to the distributor's drugs, patient advocates and drug manufacturers raised concerns about giving the DEA such undefined discretion.
And so Marino introduced legislation to define “imminent danger.” In 2014, the bill passed the House but stalled in the Senate after the Justice Department expressed opposition. In 2015, with the support of patient advocates and others, I approached the DEA to negotiate a compromise.
The DEA, with the Justice Department’s input, proposed requiring the DEA to show a “substantial likelihood of an immediate threat” before it could issue an immediate suspension order. This key phrase carried through to the law.
So imagine my surprise on reading claims that the sponsors wrote the bill to gut the DEA’s enforcement authority. Apparently, the sponsors exercised some sort of mind-control over the DEA and Justice Department to get them to give Congress the very language The Post now claims destroyed the DEA’s ability to do its job.
The bill was bipartisan. It was the product of extensive negotiations with the DEA and the Justice Department. The agencies could have stopped the bill but chose not to. And most important, the bill passed by unanimous consent, meaning not a single lawmaker objected to it. Any senator could have stopped the bill from passing. Any of my colleagues could have offered an amendment. Not one did.
Faced with these facts, The Post alleges that the drug industry and its allies in Congress snookered Congress into passing the bill. Other than the bill’s sponsors, the article claims, “few lawmakers knew the true impact the law would have.” It further claims this unholy alliance prevailed on the Obama administration to sign the bill into law without understanding what it actually did.
This must have been the most effective Washington conspiracy since Frank and Claire Underwood finagled their way into the White House.
Left unanswered in The Post’s litany of allegations are these key questions: Why would the DEA propose language to Congress that would eviscerate its enforcement authority? Why would the DEA agree to allow a bill to move forward that would hobble its ability to do its job? Why didn’t President Barack Obama’s own DEA administrator tell him not to sign the bill? The Post offers no satisfactory answers.
Perhaps the reason the DEA chose not to oppose the bill was because it didn’t, in fact, eviscerate its authority. Contrary to the claim that “enforcement actions plummeted” after Obama signed the bill, the DEA’s own data show that the agency’s use of immediate suspension orders began declining in 2012, long before Obama signed the bill into law. The Post’s attempt to find a cause-and-effect relationship here simply doesn’t hold up.
The portrait The Post paints of a sinister plot that fooled Congress, the DEA, the Justice Department and ultimately Obama himself makes for fascinating reading. The truth is far less sexy. The bill passed because lawmakers — concerned about the DEA’s undefined authority to cut off drug supply chains without warning — worked with the DEA and the Justice Department to craft language the agencies could agree to. The DEA and the Justice Department could have stopped the bill at any time, just as they did in 2014, when the bill contained different language. They chose not to.
That’s what really happened. Let’s leave the conspiracy theories to Netflix.
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