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Stephen Boyd: THE MONDAY BRIEF – March 27, 2023

Stephen Boyd’s weekly Capitol Hill briefing for Alabama’s business, financial, defense and government affairs executives.

The Schedule…

Both the House and the Senate will be in session this week for one last period of legislative activity prior to the traditional Passover/Easter break. 

The days just before a recess tend to be the most productive on Capitol Hill. Expect votes in both chambers. The House may consider its major energy package by week’s end. Notably, the Senate looks posed to approve S. 316, which would repeal authorizations for the use of military force against Iraq. The legislation faces a key procedural hurdle tonight. The Senate’s votes on the measure are arguably the most consequential of the 118th Congress so far. 

What Goes Around Comes Around…

Policy debates on Capitol Hill tend to be cyclical. Stick around long enough and you’ll find yourself dealing with the same arguments on the same issues, often when considering periodic reauthorizations of the same pieces of legislation. 

Occasionally, new challenges and issues emerge. When I returned to the Senate as a Chief of Staff in January 2021, one issue was receiving much more attention than when I left my role as House Chief of Staff four years earlier: the rise of illicit fentanyl. (Another issue suddenly on everyone’s minds, not unrelatedly, was China.)

Things have only gotten worse since. Today, the prevalence of the deadly drug is demanding the attention of policymakers at all levels. Awareness is building, and you should expect heightened attention on the fentanyl problem—and possibly new legislation—throughout the year.   


  • Fentanyl is a powerful synthetic opioid, which means that it is manufactured in a laboratory as opposed to opioids like morphine and codeine, which are naturally occurring substances. It is a potent drug approved by the Food and Drug Administration for pain relief, and it is legally manufactured in the United States.  
  • Sometimes, legally manufactured fentanyl is diverted to the street for recreational use through theft, fraud, or illegal distribution. Much more common on the street is illicit fentanyl that was manufactured overseas and smuggled into the U.S. to be sold either alone or in combination with drugs like heroin or cocaine.
  • A very small amount of fentanyl—just two milligrams, equivalent to just 10-15 grains of salt—can cause a coma, respiratory failure, and death. 
  • Drugs sold on the street don’t come with a list of ingredients, and buyers tend to not ask questions. Many people who die from fentanyl didn’t even know they ingested it.  
  • And there are a lot of people dying. Citing data from the Centers for Disease Control and Prevention, the DEA reports that “107,375 people in the United States died of drug overdoses and drug poisonings in the 12-month period ending in January 2022. A staggering 67 percent of those deaths involved synthetic opioids like fentanyl.  Some of these deaths were attributed to fentanyl mixed with other illicit drugs like cocaine, methamphetamine, and heroin, with many users unaware they were actually taking fentanyl.”
  • And, now, an emerging problem: “Tranq.” In some areas, drug dealers are mixing fentanyl with the veterinary tranquilizer Xylazine to create a super drug. If it doesn’t kill its user, the cocktail destroys human flesh, leaving large open sores on limbs that often require amputation. Narcan, which is effective at reversing an overdose of opioids, doesn’t work well on Tranq, which was found in 90 percent of fentanyl samples studied in Philadelphia in 2021.    


Policy Considerations

The prevalence of fentanyl and the rising death toll are problems that invoke numerous areas of public policy and government. 

Analogs & Mandatory Minimums—U.S. law defines substances to be controlled by the government by describing their very specific chemical makeup. Foreign manufacturers can modify fentanyl at the molecular level to create slightly different compounds, referred to as fentanyl analogs, that have the same effect as fentanyl but technically fall outside the legal definition. By the time laws catch up, manufacturers have moved to something else. At the Department of Justice, we led an effort to make this entire class of “fentanyl-related substances” illegal. Our efforts ran into opposition by criminal justice reformers concerned that listing the analogs as a Schedule I controlled substances might invoke tough mandatory minimum sentences for those that intentionally manufacture or distribute the deadly drug. That was, in fact, the point. In the end, our team helped push through legislation in February 2020 to temporarily schedule the analogs, a provision that has been extended until December 31, 2024. 

China—The large majority of the “precursor” chemicals in fentanyl are manufactured in China. Direct flows from China have largely been blocked, due in part to a surprising degree of past cooperation between the U.S. and Chinese governments. According to the Congressional Research Service, U.S. counternarcotics policy “has shifted to preventing Chinese-sourced fentanyl precursors from entering the U.S.-bound fentanyl supply chain via third countries, and targeting illicit fentanyl-related financial flows linked to the” Chinese government. But, in light of rising tensions over Taiwan, China has stepped back from counternarcotics cooperation. In a run up to a potential conflict over Taiwan, does the Chinese government mind that one of its exports is killing Americans? Probably not. 

The Southwestern Border—An unclassified DEA intelligence report in 2020 noted that Transnational Criminal Organizations in Mexico are playing a big role in moving the drug over the border. “DEA reporting continues to indicate [that two] cartels are likely the primary trafficking groups responsible for smuggling fentanyl into the United States from Mexico. To date, the fentanyl synthesis and fentanyl pill production operations dismantled in Mexico have either occurred in territories controlled by these cartels or have had involvement by members/associates of these cartels. In addition, these [transnational criminal organizations] are known to control the trafficking corridors in Mexico that connect to California and Arizona, indicating drugs passing through these associated areas would need to be approved by these organizations.” 


Congressional Attention

The fentanyl problem is attracting attention from lawmakers in ways big and small. For now, the activity focuses largely on educating the public and exploring possible solutions. Those efforts could be precursors to legislation.

Permanent Scheduling Fentanyl itself is a Schedule II drug, meaning it has a high potential for abuse which may lead to severe psychological or physical dependence, but also a currently accepted medical use. Legislation in Congress to permanently list analogs as Schedule I controlled substance, and impose the tougher sentences that go with it, could be considered in the future. 

Awareness — In conjunction with National Drug and Alcohol Facts Week, Alabama Senator Tommy Tuberville held a public town hall with Alabama health officials to highlight the dangers of fentanyl. Among the guests were Lee County Sheriff Jay Jones, who said “One week in January here in Lee County alone, we saw seven instances where individuals had — as it turns out— taken overdose quantities of a drug. Fentanyl was involved in all seven. Two people recovered and five did not.”

Another guest, UAB addiction specialist Dr. Stefen Kertesz, noted that “With opioids in general, most people who attempt to use an opioid actually don’t develop an addiction. They just decide it’s not a good experience. Of course, the problem if you tried – and what you started with – was illicit fentanyl, you might be dead before you have the chance to say, ‘I’m not that interested in that experience.”

House Caucus — Earlier this month, Reps. Joe Neguse (D-CO), Madeleine Dean (D-PA), Darrell Issa (R-CA), and Ken Calvert (R-CA) established the Bipartisan Fentanyl Prevention Caucus. The co-chairs will coordinate with members to combat the nationwide spike in fentanyl-related overdoses and drug poisonings. Alabama Reps. Robert Aderholt and Barry Moore are already listed as members. 

House Select Committee on China — In the 118th Congress, House Republicans established a special committee to explore the issue of Chinese economic and military competition. The panel is led by Rep. Mike Gallagher, a well-regarded member from Wisconsin who is a former Marine counterintelligence officer. House leaders have said that combatting Chinese manufactured fentanyl will be among the Committee’s priorities.  

WMD Approach –Numerous Members of Congress would like the government to treat fentanyl as a much bigger threat. Rep. Neal Dunn (R-FL), for example, introduced a resolution (H. Res. 39) aiming to recognize fentanyl as a weapon of mass destruction, like Sarin or VX. Dunn says doing so would make it easier to police trafficking worldwide and free up domestic law enforcement resources at home.  

State and local attention

The issue is of concern at the state level as well, with varying approaches to the problem. 

  • Some cities have funded programs to provide Narcan to at-risk populations to prevent users from dying of overdoses.
  • Others have considered the establishment of so-called safe consumption facilities to reduce the harm of fentanyl by permitting the use of controlled substances in the presence of medical professionals who can administer aid. Such facilities have run into significant legal challenges. 
  • In Alabama, Rep. Matt Simpson (R-Daphne) has authored legislation to impose significantly tougher sentences on those convicted of possessing fentanyl. “This is not a partisan bill, this is something that affects every community, and that’s something that we’re taking seriously,” Simpson said after the bill’s passing. The legislation, House Bill 1, passed unanimously in the State House last Thursday and awaits action in the State Senate. 


Hallway Conservations…

  • There is a heightened concern about the decision to locate SPACECOM’s headquarters after Air Force Secretary Frank Kendell said the Department was conducting “additional analysis,” and Washington Post columnist David Ignatius wrote that “The White House appears ready to reverse a Trump administration plan to relocate the U.S. Space Command from Colorado Springs to Huntsville, Ala.” One must wonder if the administration’s approach to the issue is the most visible sign to-date of Sen. Richard Shelby’s absence in the Senate following his retirement last year. 
  • The question of how to deal with the debt limit continues to linger. Entering the Passover/Easter break, Congress has made little, if any, progress on finding a solution that will pass both chambers and be signed by the President. A resolution will be needed by late July. 
  • TikTok CEO Shou Zi Chew appeared on Capitol Hill last week to argue that personal data collected by popular app is not made available to the Chinese government. The House panel seemed… unconvinced. Congress may consider an outright ban of the popular social media platform. Chances are you or your children or grandchildren use the app; 150 million Americans do. 
  • Despite former President Donald Trump’s claim that he was going to be arrested last week, that did not happen. The Grand Jury in Manhattan is scheduled to continue meeting this week. 


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