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Trump’s drug czar pick was scapegoated for what was really a bipartisan failure

Rep. Tom Marino (R-PA) backed a controversial law — but so did the rest of Congress and Obama.

President Barack Obama meets with President-elect Donald Trump shortly after the 2016 election. Win McNamee/Getty Images

It was an incredible turnaround: A damning Washington Post and 60 Minutes report on Sunday. A hint of disappointment by President Donald Trump on Monday. And then, Trump’s nominee for drug czar, Rep. Tom Marino (R-PA), withdrew his name from consideration on Tuesday.

The cause was Marino’s involvement in a law that passed in 2016: the so-called Ensuring Patient Access and Effective Drug Enforcement Act. As the Post and 60 Minutes explained in their bombshell report, the law effectively hindered the Drug Enforcement Administration’s (DEA) ability to prosecute opioid distributors and stop dangerous shipments of opioid painkillers — the kind of drugs that sparked America’s opioid epidemic — right as drug overdose deaths reached yet another peak in the US.

The measure was heavily backed by the drug industry, and Marino, who had received nearly $100,000 in donations from political action committees linked to the industry, was its main sponsor. The bill got through Congress with zero opposition before it was signed by President Barack Obama.

Marino, along with other key sponsors, Rep. Marsha Blackburn (R-TN) and Sen. Orrin Hatch (R-UT), have rightfully gotten a bulk of the blame for the law in the aftermath.

But much of the outrage is missing the fact that it wasn’t just Marino, Blackburn, or Hatch but every single elected official at the federal level who deserves at least some of the blame for this law.

Marino, Blackburn, and Hatch were the major sponsors. But the law passed through what’s called unanimous consent — a procedure that’s used to pass uncontroversial bills in which no votes are recorded but members of the legislative body are given a chance to object. No one in Congress — not a Democrat or a Republican — spoke up.

And, of course, Obama signed the bill into law.

Everyone shares some of the blame

Based on my conversations with officials from Congress and the Obama administration this week, the measure slipped through without anyone giving it much thought. Once the DEA signed onto the law, everyone seemed to figure that it was fine. As one former administration official told me, who’s going to accuse the DEA, the face of America’s punitive war on drugs, of being “soft on crime” and hurting its own mission?

The Post’s headline says it all: “Did President Obama know bill would strip DEA of power?” Based on the report, the administration and much of Congress deferred to the DEA and otherwise knew little about the law’s impact. Michael Botticelli, Obama’s drug czar at the time, told the Post as much: “We deferred to DEA, as is common practice.”

But as the Post and 60 Minutes reported, the DEA only signed onto the law reluctantly after leadership changes at both the agency and Justice Department — and after it worked with Hatch on the bill’s language and figured that it got the best possible deal it could.

“DEA felt this wasn’t a great solution, but was the best of the options offered to us, even if it did not fully address the concerns we had previously laid out for you,” Jill Wade Tyson, a congressional liaison officer for the Justice Department, wrote in an email to Senate staff at the time, according to the Post.

As a Senate aide explained, DEA approval was perhaps the most critical point in the debate: If Congress is looking at a bill that affects a federal agency, the bill is going to be much less controversial if the agency approves of it. That the DEA was reluctant — and only came on board after leadership changes and heavy lobbying from the industry, including people like D. Linden Barber, a former DEA lawyer who now works for the drug distributor Cardinal Health — got lost in the process.

Still, there were other red flags. Ex–DEA officials — particularly Joe Rannazzisi, former head of the DEA’s Office of Diversion Control — continued warning lawmakers about the bill after the DEA gave it the okay. But as Rannazzisi told the Los Angeles Times after it passed, “They are taking the word of industry rather than the government’s expert in diversion control.”

So the law got through Congress and the White House without any objection.

Some senators have owned up to the bad process. Sen. Claire McCaskill (D-MO), who’s spent much of the year investigating opioid companies, proposed a bill to repeal the Ensuring Patient Access and Effective Drug Enforcement Act shortly after the report by the Post and 60 Minutes. Her office was not directly involved in the original law’s passage. But she said in a statement, “All of us were in a position to catch this and none of us did — which is why I’m so motivated to repeal this law and ensure the DEA has every possible tool to crack down on bad actors.”

The law will make combating the opioid epidemic a bit harder

The end result is the federal government passed a law that stripped the DEA of its power to go after irresponsible opioid companies at the height of a drug overdose epidemic that these companies helped cause — an epidemic that now kills tens of thousands a year.

The law raised the burden of proof required for the DEA to freeze shipments of opioids it deems suspicious. DEA Chief Administrative Law Judge John Mulrooney described the effect in an upcoming law review article: “If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.”

It also requires the DEA to give drug companies a chance to submit “corrective action” plans and take those plans into account before the agency can sanction them. Mulrooney wrote that this is akin to a law that requires police to “allow bank robbers to round up and return inkstained money and agree not to rob any more banks — all before any of those wrongdoers actually admit fault and without any consequence that might deter such behavior in the future.”

To understand why the DEA feels it needs these types of powers, consider another report from the Charleston Gazette-Mail in West Virginia: It found that from 2007 to 2012, drug firms poured a total of 780 million painkillers into the state — which had a total population of about 1.8 million. The small town of Kermit, West Virginia, had a population of 392, but a single pharmacy there received nearly 9 million hydrocodone pills over two years from out-of-state drug companies.

Critics of the drug industry have argued, convincingly, that opioid distributors should have known these kinds of shipments were not okay. Under federal law, the companies are supposed to report and stop suspicious orders of some drugs, including opioids. Yet they didn’t. And now West Virginia has the worst drug overdose death rate in the country.

Would the DEA have been able to reverse the opioid crisis without the new law? Almost certainly not. The agency acted far too slowly — only going after the industry after this all turned into a full-blown epidemic. And now so many people are suffering in this crisis that the response must focus on providing greater access to addiction treatment, not solely law enforcement action. (More on the solutions to the opioid crisis in Vox’s explainer.)

Based on the Post and 60 Minutes’ reports and Mulrooney’s law review article, though, the DEA would have been able to stop at least some dangerous shipments with the measure and maybe prevent some cases of misuse and addiction. But now the DEA can’t — all because every elected official in federal government, out of inattention, ignorance, or support from the drug industry, let this law go through.