Bloomberg Law
May 25, 2023, 9:30 AMUpdated: May 25, 2023, 2:49 PM

Republican Fentanyl Crackdown Puts Biden, Democrats in Bind (1)

Alex Ruoff
Alex Ruoff

House Republicans passed legislation Thursday giving the government the power to make synthetic fentanyl knockoffs illegal permanently, adding fuel to the debate over criminal penalties for drug possession.

Conservatives boast they have at least nominal support from the White House and Democrats on the legislation (H.R. 467). That’s a sign, Republicans say, of the need and popularity of bolstering law enforcement efforts to curb illicit drugs in the US.

“This is an issue that should be uniting Americans across the board,” said Rep. Brad Wenstrup (R-Ohio), head of the influential GOP Doctors Caucus who is also pushing for having the Department of Homeland Security consider illicit fentanyl a weapon of mass destruction.

The bill passed the House 289-133, with 74 Democrats joining nearly every Republican in support.

Advocates for changing the nation’s drug laws, however, are worried the Biden administration and Democrats, whom they count as allies, are favoring crackdowns on drug users and traffickers at the expense of public health efforts. They say federal and state lawmakers are missing opportunities to move away from arresting drug users and to instead push people with substance use disorders into treatment programs.

Johnny Bailey speaks about drugs used in overdose deaths during Narcan training at a community outreach organization in Washington, D.C., in March 2023.
Photographer: Brendan Smialowski/AFP via Getty Images

The debate over the bill showcases the thorny political landscape any legislature faces in attempting to tackle the overdose crisis—which killed more than 105,000 people in the US last year.

Civil rights group this week urged President Joe Biden to oppose the bill, saying it’s turning away from his promise to promote racial equity and reduce the stigma around drug addiction.

“His position is outrageous and it flies in the face of all his commitments,” said Maritza Perez, director of the office of federal affairs at the Drug Policy Alliance, a group that advertises itself as opposing the war on drugs. “He wants to have it both ways; he wants to show he’s tough on crime but he’s trying to respond to the overdose epidemic with health resources.”

Fighting Fentanyl

The bill passed Thursday would permanently add fentanyl-related substances as a Schedule I drug under the Controlled Substances Act—considered the most stringently restricted drugs. Congress late last year gave the government the temporary authority to ban fentanyl-like substances, chemically different versions of the synthetic opioid that the Drug Enforcement Administration has warned would otherwise not technically be illegal.

Fentanyl has become a major driver of overdose deaths in the US. The rate of fatalities involving fentanyl and methamphetamine in the US has skyrocketed in recent years, even as overdose deaths involving heroin and prescription drugs like oxycodone decreased, according to Centers for Disease Control and Prevention data released earlier this month.

Supporters of the House bill say the problem is the steady supply of powerful fentanyl, and that agencies like the Drug Enforcement Administration need to intercept more of it coming into the US.

See also: Fentanyl Overdose Death Rates More Than Tripled in Five Years

The Biden administration has promised to balance law enforcement efforts with public health measures aimed at offering treatment to people with substance use disorders. But Democrats in Congress say the House bill doesn’t do anything for public health and lacks the balance they want to strike on the issue.

Rep. Pramila Jayapal (D-Wash.), head of the Congressional Progressive Caucus, the largest caucus for House Democrats, said her group whipped against the bill. She said her staff has found the people who have been arrested for possessing fentanyl and fentanyl-like substances in the US are largely Black and Brown and not major drug traffickers, meaning they’re typically people with substance use disorders.

“We have to be really thoughtful about how we handle so that we’re not prosecuting people who are addicted,” Jayapal said.

See also: Xanax and Adderall Access Is Being Blocked by Secret Drug Limits (1)

White House Support?

The White House issued a statement saying it supports aspects of the bill such as permanent scheduling, but also wants to do more promote public safety. No veto threat was issued.

Rep. Morgan Griffith (R-Va.), the bill’s main sponsor, said he saw the statement as a sign of support.

“They said the administration calls on Congress to pass all of these critical measures to improve public safety and save lives after fully describing the bill,” he said.

Read More: BGOV Bill Summary: H.R. 467, Fentanyl-Related Drugs Ban (1)

The Biden administration has previously asked for a middle-ground approach: couple a permanent ban on fentanyl-adjacents with an exemption from mandatory minimum sentences for some people who are convicted of trafficking the newly prohibited substances.

Some Democrats from areas hard-hit by the overdose crisis say they’re supporting the legislation because it could help reduce the supply of illicit fentanyl, and that public health efforts like expanding treatment options could come later this Congress.

“I hope no one has the sense we’re passing one bill on fentanyl and our work is somehow done and the crisis is averted,” Rep. Chris Pappas (D-N.H.) said. “That’s not the case.”

Democrats late last year tried unsuccessfully to pass legislation to reduce the disparities in criminal sentencing between powder and crack cocaine, seen as low-hanging fruit for sentencing overhaul.

In the Senate, two Democratic aides told Bloomberg Government on condition of anonymity to discuss ongoing private talks that key progressives are trying to find an alternative way to tackle fentanyl-related substances. The concern is that the House bill gives federal law enforcement agencies carte blanche to place fentanyl-like substances onto Schedule I without first allowing researchers to study them.

They have time to come up with a solution: The government has the power to schedule fentanyl-like substances until the end of 2024.

Earlier: Permanent Fentanyl Ban Garners Bipartisan Support in Congress

State-Level Battle

State legislatures have faced similar pressures to crack down on illicit drugs, while devoting fewer resources to public health approaches.

In Washington state, where more than 2,000 people died from overdoses in 2021, the legislature was called into a special session last week to pass a bill establishing penalties for drug possession in the state after lawmakers couldn’t reach agreement during the regular session.

Gov. Jay Inslee (D) signed into law a bill to keep drug possession illegal as a gross misdemeanor, after a court in 2021 struck down Washington’s law making possession a felony. Now, violations will be punishable by up to 180 days in jail for the first two convictions, a $1,000 fine, or both. The new law also created a crime category for using drugs in a public space that holds the same penalties.

State Rep. Gina Mosbrucker (R), who helped negotiate the final bill, said police were previously asked to give out leaflets for substance use treatment to people using drugs in public spaces.

“You were literally handing it to someone who is high,” she said.

The law also opened up more than $40 million for drug treatment services in the state.

Alison Holcomb, who works for the American Civil Liberties Union in Washington, called the new law “bad policy” because it leans on the police to get people into these drug treatment programs. She said progressives in the state were hoping to avoid criminal penalties for infractions like possession, but too many lawmakers pushed back.

“We’re still in a place where fear and shame appear to carry more weight than either pragmatism or compassion,” Holcomb said.

(Updates with vote result.)

To contact the reporter on this story: Alex Ruoff in Washington at

To contact the editors responsible for this story: Anna Yukhananov at; Robin Meszoly at

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