DOJ: The FDA Has No Authority to Regulate Death Penalty Drugs
By Josh Gerstein
The Justice Department issued a legal opinion that could lead to more executions in the U.S. by easing the availability of drugs used to carry out lethal injections.
The opinion from the Office of Legal Counsel says the Food and Drug Administration lacks the authority to regulate drugs or other items when used in connection with the death penalty.
The immediate effect of the Trump administration decision is unclear because of a court injunction issued in 2012 barring the FDA from allowing the importation of a key execution drug, sodium thiopental. Shortages of that drug have led many states to scale back or halt executions in recent years.
In a statement, an FDA spokesperson said the agency would “follow the conclusion of the opinion to the extent permissible” by the 7-year-old order, which remains in effect.
The 26-page opinion, signed by Assistant Attorney General Steven Engel, indicates that it was sought by the attorney general's office, but does not say when. OLC opinions are traditionally treated as controlling law within the executive branch. Courts often take note of such high-level legal advice when it is made public, but are not obliged to follow the opinions.