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Congress Wants To Give Jeff Sessions Unprecedented New Drug War Powers

The SITSA Act would turn the attorney general into the chief arbiter of what substances Americans can buy, sell, and put in their bodies.

Dianne Feinstein (D–Calif.) wants to give the attorney general unprecedented new powers to fight the war on drugs. Credit: Alex Edelman/CNP/AdMedia/SIPA/NewscomDianne Feinstein (D–Calif.) wants to give the attorney general unprecedented new powers to fight the war on drugs. Credit: Alex Edelman/CNP/AdMedia/SIPA/NewscomIf you think the Department of Justice has more than enough tools to wage the war on drugs, a bill passed by the House would create a fast-track scheduling system that could lead to the criminalization of kratom, nootropics, and pretty much anything that gives you a buzz and isn't already illegal.

The House of Representatives voted on Friday to create a new schedule of banned drugs under the Controlled Substances Act, called "Schedule A," and to give Attorney General Jeff Sessions broad new powers to criminalize the manufacturing, importation, and sale of substances that are currently unregulated, but not illegal. The bill is now headed to the Senate, where co-sponsors Dianne Feinstein (D–Calif.) and Chuck Grassley (R–Iowa) will likely have little problem whipping votes.

The Stop the Importation and Trafficking of Synthetic Analogs Act, or SITSA, is intended to crack down on drugs that closely resemble currently banned or regulated substances in either their chemical structure or intended effects. SITSA would also empower the attorney general (A.G.) to add drugs to this new schedule with few checks from other branches of government.

As its name implies, SITSA is a response to the increased importation of fentanyl analogs—drugs based on the potent opioid fentanyl and that work similarly in the body, but are slightly different at a formulaic level—which have made their way into the U.S. heroin supply and driven overdose death rates to an all-time high.

The bill also marks the biggest federal effort yet to put the analog genie back in its Chinese bottle.

For more than a decade now, legislators, regulators, and law enforcement have been overwhelmed by the endless stream of analog drugs exported to the U.S. by overseas chemical manufacturers. These compounds are very similar to drugs that Congress has already banned or the prescription drugs the Food and Drug Administration (FDA) already regulates: Synthetic cannabinoids are designed to work like marijuana; cathinones are supposed to mimic both illicit and prescription amphetamines; 2cb imbues euphoric effects similar to MDMA; and SARMs work kind of like testosterone.

The Drug Enforcement Administration has long bemoaned the fact that clandestine chemists can create these novel drugs faster than D.C. can ban them. The scheduling process is complicated, as it should be when the government makes things illegal: The DEA has to identify an analog's chemical structure and the scheduled or regulated drug to which it's most similar, then seek input from experts at the Department of Health and Human Services (HHS), then publish a scheduling notice in the Federal Register and review public comments. (Democracy can be such a drag!)

Prosecuting drugs that have not gone through this process of analysis and scheduling, meanwhile, requires overcoming what Sessions recently called "cumbersome evidentiary hurdles," such as chemistry experts who challenge the government's claims and defendants who say they believed they were importing and selling "potpourri" and "bath salts." (These hurdles are also known as "due process.")

While Department of Justice (DOJ) complaints about analogs aren't new, the rise of fentanyl analogs have inspired Congress to act more aggressively and clumsily than usual. The Senate version of SITSA introduced by Feinstein and Grassley gives the attorney general unilateral and unchecked power to add a substance to Schedule A. It contains no congressional review provision and vests no authority in the Department of Health and Human Services to challenge the DOJ's scheduling decision.

When SITSA came up for a vote in the House, the House Liberty Caucus released a statement condemning the decision to "cede more of Congress's legislative authority to the Attorney General and grant the AG more power to fight the war on drugs, which has eroded federalism, eviscerated numerous individual rights, entrenched severe discrimination in our criminal justice system, and failed to meaningfully limit the proliferation of illicit drugs."

Thanks to the advocacy of Rep. Justin Amash (R–Mich.) and others, provisions were added to the House version of SITSA that appear to constrain the attorney general—though they probably won't. "Even with the sponsor's amendment," says the Liberty Caucus's statement, "this bill allows the AG to schedule substances permanently without significant input or involvement by the Department of Health and Services."

More specifically, the Senate bill requires the Attorney General only to notify HHS of a scheduling decision and "take into consideration any comments submitted by the Secretary of HHS." The amended House bill requires that

if the Secretary [of HHS] has determined, based on relevant scientific studies and necessary data requested by the Secretary and gathered by the Attorney General, that a drug or other substance that has been temporarily placed in schedule A does not have sufficient potential for abuse to warrant control in any schedule, and so advises the Attorney General in writing, the Attorney General may not issue a permanent scheduling order and shall, within 30 days of receiving the Secretary's advice issue an order immediately terminating the temporary scheduling order.

The House bill also gives Congress 180 days to write and pass legislation reversing a temporary scheduling order, but says nothing about reversing a permanent scheduling order. Why the House would tie its own hands in a matter like this is mystifying.

The bigger issue here is that the data HHS needs in order to make a recommendation will come from the DOJ, which is not exactly an unbiased source. If an A.G. wants a drug to remain in Schedule A, the data DOJ shares with HHS will likely support that preference, just as the data DOJ prosecutors share with jurors supports their preference for conviction. What's more, there is almost no random-control-trial data for drugs that are not already well into the FDA pipeline. To get that data, researchers would not only have to raise money outside the pharmaceutical system (ask MAPS how hard that is and how long it takes), they'd also have to get the AG's permission to manufacture or study any substance that has been scheduled using emergency powers. As one might expect, SITSA gives the AG wide latitude in determining what drugs are permissible to manufacture and to study.

As the Liberty Caucus statement suggests, the HHS oversight provision in the House bill is toothless, and absent entirely from the Senate version.

In addition to creating a new class of Controlled Substances, both bills give the Justice Department unprecedented power to criminalize compounds that aren't regulated by the FDA or already a Controlled Substance. Here's a brief rundown of provisions common to both versions of SITSA:

  • Allow the Attorney General to use emergency scheduling powers to place a substance in Schedule A for up to five years, whereas current emergency scheduling powers allow for a maximum ban length of two years. (The additional length of time matters because temporary scheduling is not subject to judicial review.)
  • The bill's criteria for inclusion in Class A of the Controlled Substances Act is incredibly broad. It includes any substance that is not already scheduled and is chemically similar to any drug in classes I-V (schedule I drugs are illegal save for research that must be approved and supervised by the DEA; drugs in the remaining schedules can be prescribed); has "an actual or predicted" stimulant, depressant, or hallucinogenic effect similar to that of any drug in classes I-V. The methods for determining those similarities are pretty vague in both versions of the bill and will almost certainly be interpreted by the DOJ in a way that makes it easiest for them to do what they want.
  • If a drug fits the above criteria, and the Attorney General believes that scheduling it under the CSA "will assist in preventing abuse or misuse of the drug or other substance" [itals mine], the A.G. has met all of the criteria necessary to schedule the drug.
  • SITSA establishes a statutory maximum of 10 years in prison for Schedule A offenders with no prior drug convictions, and 15 years if ingestion of the substance results in "serious bodily injury or death"; those maximums rise to 20 and 30 years if the offender has a prior felony drug conviction.
  • Importers of Class A drugs will face statutory maximums of 20 years (30 years if they have a prior felony drug conviction), and a maximum of life in prison if consumption of the drug they imported results in serious bodily injury or death.
  • Despite the use of "synthetic analog" in the bill title, the criteria for inclusion in Schedule A says only "drug or substance."

Fans of the herbal opioid remedy kratom have expressed concerns about SITSA, as have nootropic users and research chemical enthusiasts. The combined vagueness and broadness of this bill should worry all of them. While the immediate justification for the bill is fentanyl, the legislation is so much broader than that. Were coffee and booze not historically entrenched in our culture, this bill would absolutely allow the DOJ to add both caffeine (as a stimulant) and alcohol (as a sedative) to Schedule A of the Controlled Substances Act.

The race to develop drugs that can briefly exist in a legal grey area—not scheduled at the formulaic level, but similar to things that are—is a genuine problem. The cat-and-mouse game between the DOJ and clandestine chemists has led to a downward spiral in quality, safety, and predictability. Batches of spice and K2 that flooded drug stores and head shops in the early 2000s, for example, could be hit or miss; but the synthetic cannabinoids floating around the U.S. now that those early versions are illegal have caused mass hospitalizations.

More potent and deadly than any drug we've seen before, fentanyl analogs are easy to make, cheap to buy, discreetly packaged, and difficult to detect at U.S. ports of entry. While the libertarian response to this phenomenon would be to make safer opioids available to people who want them in conjunction with lifting federal regulations on medications like methadone, naloxone, and buprenorphine, Congress very seldom does the libertarian thing.

What will illicit chemical manufacturers do if SITSA passes? Will they stop exporting to the U.S.? Will they change their packaging and labeling strategies? What will the new race to the bottom of the chem barrel look like? These are questions Congress should be thinking about now. After all, legislators wrote this bill as a response to the crisis they helped create when they encouraged law enforcement and regulators to crack down on prescription pills without considering users might substitute heroin and fentanyl.

Several years ago, Britain passed a similar law banning what SITSA calls Schedule A drugs. The Royal Pharmaceutical Society's Pharmaceutical Journal reported last year that many users of what were once called "legal highs" in the U.K. have since switched to more historically illegal drugs. That substitution effect shouldn't surprise anyone: it explains why people who once crushed pills now shoot fentanyl. And we should expect to see it here if Congress empowers Sessions to add whatever drugs he wants to the Controlled Substances Act.

Photo Credit: Alex Edelman/CNP/AdMedia/SIPA/Newscom

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  • Citizen X||

    co-sponsors Dianne Feinstein (D–Calif.) and Chuck Grassley (R–Iowa)

    Ugh, those fucking guys.

  • Leo Kovalensky II||

    That's really all you need to know about a bill to realize that it's bad.

  • Cynical Asshole||

    Has there ever been an expansion of government Feinstein didn't support?

  • Citizen X||

    She didn't like it when the CIA used the surveillance powers she'd approved of to spy on her committee, but that's the only instance i can recall.

  • Steve-O||

    Frankenstein and Grass-fed Chuck are both in my top-ten hated senators list, which is quite an accomplishment.

    The thing about Frankenstein, though, is that she's pretty consistent and principled about her positions (apart from the surveillance stuff). I just think her principles suck. I'm gonna have a cigar when she finally kicks off.

  • MoreFreedom||

    You can see how people voted at govtrack.us/congress/votes/115-2018/h268

    That so many RINOs voted for it (the libertarian leaning voted against it) suggests they're trying to lose power so the Democrats run government. And it was mostly opposed by Democrats. Feinstein shows her statist colors.

    The libertarian position of making all drugs legal (after all, anyone can buy Drano and ingest it, yet people don't showing their responsibility that comes with freedom) is the right way to go. Then we won't have to pay taxes for all the government personnel dealing with these drugs, and the costs of arresting, prosecuting and jailing people who've harmed no one but themselves.

  • Hank Phillips||

    Could one ask for a better female version of the Evil Emperor in Star Wars?

  • I am the 0.000000013%||

    Hilary in temperament and in appearance post-force attack

  • ||

    Well, the Emperor used to be a senator as Well.

  • TrickyVic (old school)||

    ""The bill is now headed to the Senate, where co-sponsors Dianne Feinstein (D–Calif.) and Chuck Grassley (R–Iowa) will likely have little problem whipping votes."'

    The worst of legislation is usually bipartisan. People with the partisan blinders on never seem to understand that.

  • Eidde||

    "The DEA has to identify an analog's chemical structure and the scheduled or regulated drug to which it's most similar, then seek input from experts at the Department of Health and Human Services (HHS), then publish a scheduling notice in the Federal Register and review public comments. (Democracy can be such a drag!)"

    That's already bad enough - Congress has already dodged its responsibilities by delegating lawmaking powers to administrators. But at least there are procedures to be followed.

    I guess this bill would simply keep the principle of Congress dodging its responsibilities, and add the further principle of bypassing the rulemaking process.

    I suppose that in Looking-Glass world, where you have to run just to stay in place, we have to defend the existing regulatory process as "democratic" in comparison with the proposed new regime.

  • Eidde||

    Cute. In a not-cute way.

  • damikesc||

    I will go ahead and assume the SCOTUS is unlikely to rule the bill too vague to be constitutional.

  • Qsl||

    The fallout from this might actually force the SCOTUS hand though as this is essentially declaring all substances illegal from the onset (hell, even some diet pills could run afoul of the law). Lots of truck stops and mom and pop stores end up in a bind as their alertness aids literally have to be declared legal first (and unless they are testing on the spot, how would they know), as opposed to strictly illegal.

    I can not believe the government would double-down like this in such an imbecilic fashion.

  • perlchpr||

    Passage of the Volstead Act, banning alcohol, required the ratification of the 18th Amendment tot he Constitution to grant Congress the authority to do so. That authority was revoked with the ratification of the 21st Amendment.

    What amendment was ratified granting Congress the authority to pass the Controlled Substances Act?

  • Citizen X||

    The Commerce Clause isn't an amendment, yo.

  • Leo Kovalensky II||

    Commerce Clause, Necessary and Proper Clause, the because I Sayz So Clause...

    Did you just emerge from a time machine or have you not been paying much attention lately?

  • fafalone||

    The Commerce Clause *doesn't* give them that power, but the courts thought drugs were really evil and not tolerating them was more important than saving lives, so straight up lied about how far it reaches, relying on the earlier precedent where a different group of judges couldn't stand the idea of the federal government not controlling what people grew foodwise, so straight up lied about the clause as well.
    And most people cheer on these lies. Another straight up lie is that one of the rights explicitly protected by the Bill of Rights can be rescinded for life as punishment for crimes having nothing to do with it. Hell even if it was related, get convicted of perjury, lose your free speech? That idea would be appalling to everyone normally, but guns are bad mmmkay, and I don't even see most libertarians arguing against it.

  • Citizen X||

    The Commerce Clause has been reamed open wide enough to sail an aircraft carrier through, it is known.

  • Libertymike||

    Yup, it has been reamed open wide enough so that the ambit of Sparky's misanthropy could pass through it - and that is wide.

  • Cynical Asshole||

    The secret Fuck You, That's Why amendment.

  • TrickyVic (old school)||

    You beat me to it.

  • perlchpr||

    Yeah. It was one o' them rhetorical questions. I actually already knew the answer was FYTW. :-/

  • DenverJ||

    The "fuck you, that's why" amendment.

  • DenverJ||

    The "fuck you, that's why" amendment.

  • Hank Phillips||

    Um, the Wholly Bauble? The Baby Jayses? That's what the Prohibition party counted on. Here's the preamble to its 1976 attempt to reverse the Roe v. Wade decision incorporating the 1972 LP plank: "Recognizing Almighty God as the source of all government...."

  • Sevo||

    That way, when it backfires, they can blame Trump!

  • Citizen X||

    Backfires on whom? Congress? No, it'll just wreck a large fraction of the civilian population who mistakenly believe that they own their own bodies, and what are those civilians gonna do about it? NOT keep voting for Democrats and Republicans? Come on!

  • Cynical Asshole||

    No, it'll just wreck a large fraction of the civilian population

    And those people whose lives will be wrecked are a bunch of drug addicts, so who cares? Amiright! /sarc

  • BestUsedCarSales||

    I've seen that argument made here multiple times.

  • Cynical Asshole||

    As recently as yesterday.

  • Citizen X||

    Yes, well, libertarians are all low empathy individuals. So i have been assured by any number of people who don't have a goddamn clue what libertarianism entails.

  • Rich||

    SITSA, is intended to crack down on drugs that closely resemble currently banned or regulated substances in either their chemical structure or intended effects.

    Emphasis added. When will congress criminalized spinning around until you get dizzy? It's a gateway effect.

  • Just Say'n||

    A lot of toddlers need an intervention

  • Rich||

    Indeed. What kind of mind would come up with such abuse?

  • Lowdog||

    Sista act? Racist!

    Oh, wait...SITSA.

    Still racist, actually.

  • Cynical Asshole||

    It's like they take one step forward on the WoD (the marijuana federalism bill) and then two steps back (this piece of dog shit).

    *SMDH*

    Congress very seldom does the libertarian thing.

    Biggest understatement of all time.

  • Leo Kovalensky II||

    When was the last time that we had an Attorney General who wasn't an authoritarian asshole? Yeah, let's give that position more power.

  • Cynical Asshole||

    I think "authoritarian asshole" is pretty much the entire job description, not only of Attorney General but pretty much every other federal position, so it's no surprise those are the only people who seek those kinds of jobs.

  • Jerryskids||

    As Trump will tell you, the AG is not the nation's top law enforcement official, he's the President's personal fixer. From Bobby Kennedy to John Mitchell to Ed Meese to Janet Reno to Eric Holder and Loretta Lynch - crooks and liars in service to the man sitting in the Oval Office, not the office, not the nation. It's why Trump's so irritated at Sessions' recusal, as if legal niceties had anything to do with enforcing the will of the President. You're the Attorney General, goddammit, the law is whatever the hell you say the law is and your job is to say the law is whatever Trump tells you to say the law is.

  • BYODB||

    Well, maybe Trump will fire Sessions since he recused himself in matters that didn't merit a recusal.

  • Tony||

    So a member of a campaign can appropriately oversee an investigation of that same campaign? Or do you just believe anything that comes out of Trump's weird little mouth?

  • BYODB||

    Depends who you believe, since the 'Trump Campaign' is simultaneously under investigation and not under investigation depending on the day and who is making the claim.

    That said, the problem arises from the overly broad appointment of Mueller who is not investigating any particular violation of statute which as far as I'm aware is unprecedented in American history.

  • SRoach||

    Doubt it. I didn't like the guy, and didn't vote for him, but when Starr went after Clinton, I think the issue was initially irregular real estate transactions, but what Clinton was impeached over was perjury,..
    concerning extramarital sex in the oval office.

    Yeah, a married guy lied about having sex, (or something tangential and proximate to having sex without actually being sex), with someone who wasn't his wife, and THAT'S the justification for impeaching him.
    Not that he had extramarital sex, but because he lied about it.

  • Jerryskids||

    Not just "a member of a campaign", the Attorney General. Ask Loretta Lynch how that works. You know damn well that meeting on the tarmac wasn't by happenstance and they damn sure weren't discussing the grandkids. Other than maybe in the context of "those are some nice grandkids you got there, sure would be a shame if something was to happen to their grandmother". Lynch needed some reassurance Hillary wouldn't spill the dirt she had on Obama, Bill wanted reassurance Lynch would do whatever it took to clear Hillary.

  • cynicalretiree||

    Portugal decriminalized all drug use, maintained prohibition of trafficking and put Portugal's money into prevention and rehabilitation. The New American Reich prefers to ignore children getting killed in the crossfire of drug wars.Portugal's children get the luxury of walking to school without the threat of flying bullets.

  • cynicalretiree||

    I'm so sorry I voted for Diane. And she enjoys alcohol. During the 30 years I was a registered nurse, alcohol always and still maintains a big lead over opiate and opioid mortality.

  • Jerryskids||

    You know, there's that adage to the effect that before you advocate for a law you should imagine that law being in the hands of your worst enemy but I think Feinstein is uniquely horrible in that she can look at somebody like Jeff Sessions and decide more power for the state outweighs any troubling thought of who will be wielding that power. She really and truly worships the state and despises individuality.

  • Rockabilly||

    Fuck you asshole commie fuck heads.

  • Eidde||

    FEINSTEIN: "Here are some more powers."

    SESSIONS: "Thanks!"

    FEINSTEIN: "Of course, I still think you're a neo-Confederate racist lapdog of an illegitimate fascist President, I'm just voting you these new powers so you can be a placeholder for your Democratic successor."

    SESSIONS: "Whatevs, toots, thanks anyway."

  • Eidde||

    FEINSTEIN: "Of course, you realize that I reserve the right to call you names if I think you're abusing the powers I've given you. Don't take it personally."

    SESSIONS: "As long as Congress gives me extra powers like the cucked lapdogs they are, they can call me whatever names they want in their high-pitched castrato voices."

    FEINSTEIN: "And make sure to ban some drugs white people like, and maybe I'll be marginally less likely to call you a racist again. But don't count on it."

  • DRM||

    Well, at least the crackdown-on-analogs is aimed at the actual cause of the "opioid crisis", however ham-handedly.

    (What caused the crisis is that Chinese pharmaceutical factories started churning out synthetic fentanyl/analogues, and sold them by mail-order. It's much easier and safer for a drug dealer in the US to acquire a small package of very potent opioids via mail order form a legitimate Chinese business than finding heroin or bootleg Oxy on the black market. However, as it's much finickier to safely dilute the higher-potency drugs to recreational strength, the batches of street "heroin" they retailed wound up with increased variation in potency. Thus the supply-side change predictably resulted in a spike in ODs, as street "heroin" became more unpredictable. Whether there was any increase in demand/number of users is hard to tell, since you can't simply plot ODs given the demand change, and without a legal market it's inherently hard to chart the number of users who don't show up in emergency rooms.)

    The sensible fix would be legalization, with the resulting retail-availability opiates being of truly predictable strength and purity, which would not only undo the "crisis" but also get rid of all the many overdoses that were already being caused by unpredictable strength and purity before the Chinese pharma factories got into business.

  • Hank Phillips||

    Similarly during the War on Alcohol students carried 200 proof Evercleer because it was easier to transport than regular 80 proof booze. Heroin use in These States was six times higher than in Europe from 1920 to 1933.

  • ThomasD||

    When legislation cannot keep up with the reality then it is time to stop trying.

  • Verbum Vincet||

    "Sensible," yes. Moral? Not a chance. If you use drugs other than caffeine and alcohol, then you know such use could result in prison or death. You should carefully weigh the consequences, because you can't say you weren't clearly warned. Is a transitory "buzz" worth prison or death? No, legalization would place a Federal imprimatur on bad behavior. Since we look to government to set the moral standard, drug use simply cannot be tolerated!

    Make no mistake: I'm all for putting a hurting on Chinese businesses. After all, once the Russia-China-North Korea Axis of Evil attacks us, many of them will be in the War Materiel business in short order. Better to head 'em off at the kneecaps now, than wait and try to decapitate them via costly strategic bombing, later!

  • Hank Phillips||

    From the photo the Wizened Christian Totalitarian Union clearly totters on...

  • Vladilyich||

    Without reading the actual bills and relying only on the synopsis above, it would appear that, even after Trump legalizes cannabis, Sessions can then turn around and put it on schedule A making it illegal again. Know Jeffy, I wouldn't put this past him.

  • jimolivi@icloud.com||

    Congress again delegates its authority to the executive.

    Wait, Congress didn't do anything to fix immigration, or at least passed vague laws that would fail in court, thus delegating immigration authority to the executive. The executive does something that backfires, and Congress gets to sit back and watch the executive take the heat, while kids wail in the background so that such Congresspersons can clip campaign sound bites. Is this maybe the way it's supposed to happen?

    HELL NO. Congress needs to get to work, do its job, and repeal the stupid laws they made! If they don't, we should vote them all out.

    Let's start a No Incumbents campaign.

  • Mock-star||

    I can think of a very very easy way to curb the importation and use of synthetic analog drugs.

  • Hank Phillips||

    ALL such plant leaf extracts and enjoyables were decriminalized in Portugal over a decade ago, and no Apocalypse yet. Portugal's banks are today the most sought-after in EU-rope.

  • Fat Hubie||

    Not sure why Congress feels that it can usurp these powers and delegate them...?

  • ThomasD||

    Yes. In a sane world SCOTUS should hold any such 'law' invalid. Of course, they'll make it up as they go along in order to preserve the status quo.

    Same as they did for the the gay wedding cake. Couldn't rule in favor of free expression lest the whole edifice of ant 'discrimination' law come tumbling down.

  • Deplorable Victor||

    Maybe if they drugged Sessions...

  • ThomasD||

    This is the inevitable consequence of a fundamentally bad law.

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