WASHINGTON (Legal Newsline) - President Joe Biden hasn’t identified a candidate for permanent director of the Drug Enforcement Administration and it may be a long time before he does. The agency responsible for prosecuting the nation’s war on drugs is trapped on its own political battlefield as it faces criticism over its failure to contain the spread of deadly opioids while continuing to enforce a federal ban on marijuana that is opposed by White House officials and politicians on the left and right.
Add to that a crisis at the Mexican border, where the Biden administration is dismantling Trump’s strict controls on migration, and whoever takes over the DEA is certain to get caught in a crossfire of competing policy goals. According to the DEA, the bulk of illegal fentanyl blamed for tens of thousands of overdose deaths is smuggled across the southern border.
"Trump never put a DEA nominee through Senate confirmation hearings and many suspect Biden may not either, at least not for some time,” said Joel White, executive director of the Health Innovation Alliance, an industry-backed organization that is trying to implement national digital medical records systems to prevent excess prescribing and diversion of opioids. “Hearings would be ugly, spotlighting a string of DEA failures and raising questions on whether Biden's `open borders’ policy undermines agency efforts to keep fentanyl out of the U.S."
The DEA has operated without a permanent administrator since the Obama administration. If President Biden nominates someone to replace acting chief D. Christopher Evans -- the fifth acting administrator since 2015 – his candidate will likely face withering criticism in Congress. The Justice Department, which oversees DEA, issued a damning Office of Inspector General report in 2019 that blamed the agency for rapidly increasing production quotas for opioids as overdose deaths increased and failing to use tools like its nationwide ARCOS database to detect and block suspicious order patterns.
"There's a risk that DEA could be less effective on opioids for Biden than it was for Trump or Obama,” said White. “Despite years of heavy criticism, it's unclear the Agency has learned anything.”
One of the biggest conflicts will come over marijuana policy. Cannabis is still illegal at the federal level, bearing a Schedule 1 classification ranking it with deadly drugs like heroin and methamphetamine. The DEA website says the agency is “aggressively striving to halt the spread of cannabis cultivation.”
Yet the Biden’s administration’s proposals for criminal justice reform include decriminalizing the use of cannabis and expunging all past marijuana convictions. The administration also pledges to “end all incarceration for drug use alone” and establish special “drug courts” to route violators to rehabilitation instead of jail.
Biden also is working to dismantle the Trump administration’s strict border policy and allow for the freer movement of migrants from Mexico and the rest of Latin America. One side effect of that could be increased smuggling of illegal fentanyl, a dangerous synthetic opioid that is highly concentrated and easy to conceal. In its 2020 National Drug Threat Assessment, the DEA says the majority of heroin and fentanyl is smuggled across the southern border although pandemic-driven controls substantially reduced the trade last year.
The DEA’s confusing position will only get more confused if Biden’s candidate for White House drug czar, Rahul Gupta, takes over the Office of National Drug Control Policy. Gupta is a former West Virginia state health official who supported the legalization of medical marijuana, although as chief medical officer of the March of Dimes he publicly opposed the use of cannabis by pregnant women.
Biden has also nominated Vanita Gupta, a civil rights attorney who has advocated for federal drug decriminalization, to the No. 3 post at Justice, under which the DEA operates. And Vice President Kamala Harris told Mike Pence during an October debate that “we will decriminalize marijuana,” setting off a rally in cannabis stocks, and in 2018 she co-sponsored a bill with Sen. Cory Booker to end the federal ban on marijuana. At least 36 states have legalized marijuana in some way. Yet in the most recent National Drug Threat Assessment, the DEA criticized state laws as well as the 2018 federal Farm Bill legalizing hemp production, saying it “has further challenged law enforcement.”
Meanwhile, the New York Times has reported the White House fired five employees who admitted to marijuana use despite a generally lax attitude toward marijuana and specific guidance from the acting director of the Office of Personnel Management that past use isn’t a disqualifier for federal employment.
The cross-cutting attitudes toward marijuana in the White House only accentuate the difficulties facing the DEA as it struggles with its primary mission, containing the spread of far deadlier fentanyl and illegally diverted prescription opioids. Opioid deaths rose to 81,000 in the 12 months ended June 2020, according to the most recent statistics from the Centers for Disease Control, a 20% increase from the year before and a record for the U.S.
More than 300,000 Americans have died from drug overdoses since 2000, according to the CDC, including a quadrupling of prescription overdose deaths between 1999 and 2018. Deaths have accelerated during the pandemic, perhaps as a side effect of job losses and depression caused by lockdown orders.
After a flirtation with dismantling police departments this summer, Americans appear to be returning to support for law enforcement, according to a recent USA Today/Ipsos poll. According to that poll, 69% of Americans trust law enforcement to promote justice up from 56% in June 2020, and there is little support for defunding the police.
The DEA’s next administrator may be adrift in these political waters. Attorney General Merrick Garland indicated in at least one judicial opinion that he would defer to the DEA on whether to reschedule marijuana down from its most restrictive status. While the Biden administration says it’s committed to cooperating with Mexican authorities to halt the flow of illegal fentanyl into the country, the DEA may have trouble complying: Mexico passed a national security law stripping DEA agents of diplomatic immunity after several provocative incidents including arresting Mexico’s former defense secretary on drug charges at the Los Angeles airport. Biden is struggling to reassure Mexican President Andres Manuel Lopez Obrador his looser stance on illegal immigration won’t empower drug cartels.
Leaderless and torn between competing political priorities, the DEA may be the federal agency most out of touch with the current political and social atmosphere. But with concerns over the COVID pandemic receding, DEA’s central role in the nation’s other health crisis – illegal drug-related disease and deaths – is inevitably going to come under close public scrutiny.