Thread by @chrisgeidner

BREAKING: DOJ's Office of Legal Counsel concludes that the FDA lacks jurisdiction to regulate drugs used in executions — justice.gov/olc/opinion/fi… — a move that could allow states to try importing hard-to-get drugs from shady foreign suppliers. (h/t @washingtonpost)

This is a longstanding fight, and, shocker, Texas has been pushing the federal government to let it import such drugs. I'm reading the OLC opinion now.

Here's the now-slightly-expanded Post story: washingtonpost.com/national/healt…

OLC completely fails to address the reality of the question it purports to answer in the opinion, which @csmcdaniel @TasneemN and I reported on a few years back: The sketchy foreign would-be suppliers of execution drugs. buzzfeednews.com/article/chrism… / buzzfeednews.com/article/chrism…

The states trying to import these drugs lawyered and experted up, which we tracked extensively at @BuzzFeedNews: buzzfeednews.com/article/chrisg… / buzzfeednews.com/article/chrism… / buzzfeednews.com/article/chrism… / buzzfeednews.com/article/chrism…

A year into the fight, here was @csmcdaniel's update on where things stood: buzzfeednews.com/article/chrism… / It includes a good summary of what we found about Chris Harris, the one person from whom several states sought overseas execution drugs. Read this, and realize OLC ignores it:

That's not all. In 2017, @csmcdaniel and @TasneemN reported on yet another would-be execution drug supplier that Texas worked with: Five guys arrested for selling club drugs "out of a mall between a jewelry store and an ice cream shop" in India. buzzfeednews.com/article/chrism…

This is an astounding OLC opinion. DOJ attempts to get around an existing injunction that requires the FDA to halt importation of sodium thiopental b/c it is an unapproved new drug (b/c no one in the US makes it any more) by saying the FDA can't regulate execution drugs at all.

Although the OLC opinion keeps referencing 2017, which is when the FDA finally issued a final order blocking a would-be drug importation (buzzfeednews.com/article/chrism…), the injunction against sodium thiopental importation has been in place since 2012.

The 2012 injunction was affirmed by the DC Circuit the next year, requiring the FDA to halt attempted imports of sodium thiopental. caselaw.findlaw.com/us-dc-circuit/…

OLC's opinion rests on a presumption that that the Cook injunction didn't, at least in effect, resolve the jurisdictional question. It seems that OLC's claim that courts "have not squarely addressed" the jurisdictional question should have had to have been raised in Cook, right?

It's true SCOTUS avoided the "thorny" jurisdiction issue in the earlier, domestic Heckler case — supreme.justia.com/cases/federal/… — but that's bc it sided w the gov't so didn't need to decide the jurisdiction issue. In Cook, tho, the DC Circuit sided w the challengers, so it was all in.

Meaning: Any argument advanced by the gov't would have had to have been decided in Cook. If there was no jurisdiction, it should have been raised. If not, it was waived, b/c the injunction was granted. Am I missing something here?

This opinion is so weird. It rests all of the logic on FDA v. Brown & Williamson — law.cornell.edu/supct/html/98-… — which held that tobacco wasn't intended to be regulated by the FDCA, but then conflates that w questions about whether certain ~uses~ of a drug can be regulated or not.

Then there's footnote 9, which seems to dramatically undermine everything that preceded it.

This is not logic. It is barely coherent. Effectively, OLC is saying: Tobacco couldn't be regulated bc tobacco use was understood to be allowed, so drugs can't be regulated bc the death penalty exists.

However:
Tobacco = tobacco
Drugs =/= death penalty

[Note to the lawyers: Yes, we can argue over Brown & Williamson, but I'm saying, even if we set disputes over that case aside, it's still not analogous to this situation.]

FINALLY: I'm not sure I get what the point of this OLC memo is. To quote Madonna as Evita, "Where do we go from here?" The injunction still exists. This is OLC's opinion. Is someone going to seek to have the injunction vacated? Does DOJ think they can just ignore it? What now?