“A crisis is a terrible thing to waste,” is a phrase coined by Stanford economist Paul Romer. Politicians are always in search of new crises to address—new fires to put out—with rapid and decisive action. In their passion to appear heroic to their constituents they often act in haste, not taking the time to develop a deep and nuanced understanding of the issue at hand, insensitive to the notion that their actions might actually exacerbate the crisis.

An example of that lack of understanding was made apparent in a press release by the office of House Majority Whip Steve Scalise (R‑LA) on June 22 supporting legislation that packages together over 70 bills (H.R.6) aimed at addressing the opioid (now mostly heroin and fentanyl) overdose crisis. The bills mostly double down on the same feckless—often deleterious—policies that government is already using to address the crisis. The release stated, “Whip Scalise highlighted a Slidell, Louisiana family whose son was born addicted to opioids, a syndrome called NAS, as a result of his mother’s battle with addiction.” 

The press release quoted Representative Scalise:

I highlight Kemper, a young boy from my district in Slidell, Louisiana. He was born addicted to opioids because his mother, while she was pregnant, was addicted to opioids herself…this example highlights something the Centers for Disease Control has noted. That is once every 25 minutes in America a baby is born addicted to opioids. Once every 25 minutes. That’s how widespread it is, just for babies that are born.

Before crowing that the “House Takes Action to Combat the Opioid Crisis,” as the press release was titled, Representative Scalise should get his science right. No baby is ever born addicted to opioids. As medical science has known for years, there is a difference between addiction and physical dependence—on a molecular level. Drs. Nora Volkow and Thomas McLellan of the National Institute on Drug Abuse pointed out in a 2016 article in the New England Journal of Medicine that addiction is a disease, and “genetic vulnerability accounts for at least 35 to 40% of the risk associated with addiction.” Addiction features compulsive drug use in spite of harmful, self-destructive consequences.

Physical dependence, on the other hand, is very different. As with many other classes of drugs, including antidepressants like Prozac or Lexapro, long-term use of opioids is associated with the development of a physical dependence on the drug. Abruptly stopping the drug can lead to severe withdrawal symptoms. A physically dependent patient needs the drug in order to function while avoiding withdrawal. Dependence is addressed by gradually reducing the dosage of the drug over a safe time frame. Once the dependence is overcome, such a patient will not have a compulsion to resume the drug.

NAS stands for Neonatal Abstinence Syndrome, a withdrawal syndrome resulting from physical dependence developed by the fetus due to the transplacental transmission of drugs being used by the mother during pregnancy. A combination of gradual opioid tapering with soothing and supportive measures resolves cases of NAS due to opioids.

In addition to opioids, cocaine can cause neonatal withdrawal syndrome, and alcohol has been long known to be a cause. In fact, much worse than NAS, Fetal Alcohol Spectrum Disorders (FASD) include head and face deformities, heart defects, and cognitive disabilities (none of which are sequelae in opioid-dependent newborns).

The distinction between addiction and physical dependence is important for a number of reasons. Because many people see addiction as a vice rather than a disease, stigmatizing a baby as being “addicted” can result in their growing up being seen and raised as manipulative and “bad.” Unlike babies born with fetal alcohol syndrome, these babies usually grow up to be normal, healthy children. It has also led some to advocate for the forced treatment of opioid-dependent pregnant women, a violation of their right to informed consent, considered an ethical violation by addiction specialists and medical ethicists alike.

The distinction is also important because the tendency of politicians and many in the media to use the words “addiction” and “physical dependence” interchangeably can conflate the two distinct conditions and feed the sense of urgency about the opioid overdose problem. This leads to policies that are not evidence-based and have unintended consequences. 

For example, multiple Cochrane systematic studies of chronic non-cancer pain patients on long term opioids have shown an addiction rate of roughly 1 percent. And a January 2018 study of 568,000 patients prescribed opioids for acute post-surgical pain found a total “misuse” rate of 0.6 percent. While it is true that most heroin addicts began their opioid abuse with diverted prescription opioids, as cheaper heroin and fentanyl have flooded the market in response to the cutback in prescription opioids, more and more non-medical users are beginning with heroin. A recent study found that 33 percent of heroin addicts entering rehab in 2015 reported their gateway drug was heroin. Yet, the government’s continued clamp-down on the manufacture and prescription of opioids causes many patients—including those in hospitals—to suffer needlessly, while the overdose rate continues to surge.

The overdose crisis will only be properly addressed once it is widely understood that it is primarily due to non-medical users accessing illicit drugs in a booming black market fueled by drug prohibition. Until then, members of Congress would be well-advised to stop the hysterical rhetoric and learn some science.

The top left-hand story on the front page of the Metro section of today’s Washington Post:

Lawyers for the District argued Wednesday for the dismissal of a lawsuit that challenges city regulations requiring some child-care workers to obtain associate degrees or risk losing their jobs.…

The requirements … stipulate that child-care center directors must earn bachelor’s degrees and assistant teachers and home-care providers must earn Child Development Associate (CDA) certificates.

Meanwhile, just across the page, in the top right-hand space:

About 1,000 teachers in D.C. Public Schools — a quarter of the educator workforce — lack certification the city requires to lead a classroom, according to District education leaders.

So how about this compromise: the child-care licensing requirement will go into effect, but it will be enforced by the crack management team at DC Public Schools?

For years, the Justice Department’s Bureau of Alcohol, Tobacco, and Firearms has maintained that “bump stocks”—devices that allow a firearm to reciprocate slightly and assist in “bump firing”—are not “machineguns.” From 2007 to 2017, spanning multiple administrations (including the current one), the ATF issued 10 different opinion letters confirming that the devices were not “machineguns” or “machine gun conversions,” and thus did not fall under the purview of the National Firearms Act of 1934 and Gun Control Act of 1968, two federal laws which heavily regulate machine gun ownership.

Under federal law, a “machinegun” is a device “which shoots … automatically more than one shot … by a single function of the trigger.” With language so clear, the provision was never considered ambiguous by a reviewing court over 80 years of decisions—and the ATF’s interpretation remained consistent. It is for this reason that bump stocks, and crank-operated “Gatling guns,” while having a high rate of fire, have never been considered “machineguns.” (Yes, virtually anyone can own a Gatling gun under federal law.) What could change the state of such settled law, then? Political expediency.

After the October 2017 mass shooting in Las Vegas, where the shooter used a bump stock, President Trump made clear that he intended to see the devices banned “without going through Congress.” The administration then announced that it intended to “clarify” the NFA and GCA to include bump stocks within the statutory definition of “machinegun.” The issue is, of course, that no amount of “clarification” can lawfully make a statute say something it does not. That, however, did not seem to deter the ATF when it published a Notice of Proposed Rulemaking in March, threatening to stretch statutory language beyond the point of tearing, all in an attempt to use an 83-year-old law to do away with bump stocks.

Our Constitution requires that new laws be brought through Congress, not shoehorned into old ones by executive agencies. In that light, we have filed a regulatory comment, expressing our view that the ATF’s new “interpretation” is an attempt to force new restrictions as a matter of political expediency, not a good faith interpretation of existing law. The president undoubtedly has the authority to direct the actions of his principal officers, but when those directions urge the reversal of longstanding previous interpretations based on an unambiguous statute, they smell more of an attempt to improperly change the law than a valid exercise of constitutional authority.

On Wednesday members of the Senate Finance Committee questioned Secretary of Commerce Wilbur Ross about the costs to American businesses of the administration’s tariffs. Ross was unsympathetic:

When Thune warned that the drop in soybean prices (caused by China’s retaliatory tariffs) was costing South Dakota soybean farmers hundreds of millions of dollars, Ross responded by saying he heard the price drop “has been exaggerated.”…

Ross told Sen. Mike Enzi (R‑Wyo.) that he’s heard the rising cost of newsprint for rural newspapers “is a very trivial thing,” and he told Sen. Benjamin L. Cardin (D‑Md.) that it’s tough luck if small businesses don’t have lawyers to apply for exemptions: “It’s not our fault if people file late.”

That reminded me of then-First Lady Hillary Clinton’s response in 1993 to a small businessman about how her health care plan might raise his costs:

“I can’t go out and save every undercapitalized entrepreneur in America.”

Seems like lots of Washington operators don’t care much about the burdens that taxes, regulations, mandates, tariffs, and other policies impose on small businesses and their employees.

The Supreme Court issued a major separation-of-powers decision this morning, which may have more long-term ripple effects than the internet sales-tax case. In Lucia v. Securities and Exchange Commission, the Court rule 6.5–2.5 — I’ll explain shortly — that SEC administrative law judges are “officers of the United States” and thus must be appointed by the president or the “department head,” in this case the SEC itself (rather than being selected by commission staff). This is important because it makes ALJs, who make decisions with significant monetary and regulatory impact, more accountable to the political process — instead of being mere creatures of the bureaucratic blob.

It’s gratifying that the Supreme Court takes constitutional structure seriously, at least with respect to the president’s appointment of inferior officers. Justice Elena Kagan’s majority opinion powerfully and concisely explains what was clear all along: ALJs are powerful officers with significant discretionary powers rather than mere clerks. That power and discretion is what sets officers apart from mere employees, as the Supreme Court explained in Freytag v. Commissioner (1991). Accordingly, ALJs should indeed be part of the executive branch’s chain of command instead of a nebulous part of the “fourth branch” administrative agencies. This ruling will increase accountability for these executive officers even as they perform quasi-judicial tasks and often represent the last real chance for those caught in the SEC’s investigatory clutches to defend themselves.

I only wish, as the government argued, that the Court had addressed the removal power, which is the flip-side to appointments. Only Justice Stephen Breyer’s partial concurrence/​partial dissent addressed that issue, whose resolution we’ll have to await in some future case.

This is where my half-vote allocations come in. The majority opinion was joined in full by six justices: John Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch in addition to Kagan. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented in full. That leaves Breyer, who agreed that SEC ALJs were improperly appointed but on statutory (Administrative Procedure Act) not constitutional grounds. Breyer was particularly concerned that combining the majority’s Lucia ruling with the holding in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) might require ALJs to be removable at will, throwing into doubt much of the administrative state’s legitimacy. (Breyer also disagreed with the majority’s remedy — in this, Justices Ginsburg and Sotomayor joined him — to vacate the ALJ’s order and reassign the case to a different ALJ even though the one who had ruled here had subsequently been re-appointed by the SEC itself.)

Well look, even (and especially) if Breyer’s fears about overturning the legally independent bureaucracy are valid, to me that’s a feature, not a bug. In any case, Lucia will go down as a case where the Court actually reads what the Constitution says and applies, regardless of what that might mean for efficiency of government.

By removing the physical-presence requirement for charging state taxes on internet sales, the Supreme Court in South Dakota v. Wayfair has thrown this area of law into disarray. South Dakota’s tax kicks in at $100,000 or 200 transactions, but other states might set other thresholds or leave it unclear. Overturning bad precedent in and of itself isn’t bad — when old cases are really wrong and create unworkable legal regimes, they deserve to be overturned — but here the Court is saying that Quill is out of step with modern Commerce Clause precedents. That’s the wrong way to go: the Court should be conforming its jurisprudence to the original meaning of constitutional clauses, not conforming the Constitution to the times.

One other thing to note is that the justices’ voting alignment (Justice Kennedy writing the majority opinion, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch, with the other four in dissent) was unusual, but not surprising in this particular case. This doctrinal area, what constitutional lawyers call the “dormant” Commerce Clause — that states can’t interfere with Congress’s implied non-regulation of interstate commerce — is the only one on which thus far I’ve found myself in disagreement with Justice Gorsuch’s views (and the only constitutional-structure area vis-a-vis Justice Thomas.)

My colleagues Trevor Burrus and Matt Larosiere will have more on this case later in the day.

The Trump administration has released its final rule expanding so-called association health plans. The rule would allow many consumers to avoid some of ObamaCare’s unwanted regulatory costs. But the rule also highlights both the destructive power of ObamaCare and Republicans’ utter lack of imagination when it comes to health care.

As originally proposed, the idea behind association health plans was to allow small businesses that purchased health insurance through a member-organization (i.e., an association) to enjoy the same federal exemption from insurance regulation that large businesses have traditionally (if unwisely) enjoyed. Small businesses have long wanted that exemption so they could escape oppressive state regulation. Now, small businesses are clamoring for association health plans because they want to escape oppressive federal regulation.

ObamaCare exempts large-employer health plans from many of the regulations it imposes on small-employer plans. The new rule treats association health plans like large-employer plans for purposes of ObamaCare, which allows small employers who purchase health insurance through a member organization to avoid those costly regulations. The consulting firm Avalere estimates the ability to avoid some of ObamaCare’s unwanted regulatory costs would induce 3.2 million people to enroll in association health plans and reduce their premiums:

Premiums in the new AHPs are projected to be approximately $2,900 a year lower compared to the small group market and $9,700 a year less compared to the individual market.

By Grabthar’s hammer, what a savings!

Traditionally, association health plans have always been a terrible idea that violates Republicans’ federalist principles, because they would move health-insurance regulation from the state level to the federal level. But since ObamaCare went ahead and federalized regulation of small-business health plans, and the association-health-plans rule merely allows small businesses to opt for lighter versus heavier federal regulation, association health plans no longer violate federalism. Credit ObamaCare with making a bad idea good.

Even in this iteration, however, association health plans still aren’t much of a good an idea. Trump’s association health plans rule builds on the broken model of employer-sponsored health insurance. Employer-sponsored coverage is lousy coverage. It deprives workers of control of their health-insurance dollars and decisions. It sticks millions of workers with health plans they would never choose themselves. It leaves millions of workers with uninsurable preexisting conditions, because it disappears for no good reason after workers get sick. It increases prices for health care and health insurance. The failures of our government-created system of employer-sponsored coverage are what created the demand for ObamaCare in the first place. Rather than offer an agenda to make health care better, more affordable, and more secure, Trump’s association health plans rule works entirely within that framework. It does nothing to move Americans toward a better system of providing health insurance.

Still, it would allow some workers to avoid some unwanted regulatory costs. So there’s that.

And that part gives rise to the only other good part of this rule, which is also the part that ObamaCare supporters hate the most: the rule will make ObamaCare’s costs more transparent. ObamaCare imposes its highest hidden taxes, in the form of higher premiums, on the healthy. The association-health-plans rule will free an estimated 1 million disproportionately healthy people to escape those unwanted regulatory costs. When those folks drop out of the Exchanges, the average risk in ObamaCare’s risk pools will rise. Correspondingly, ObamaCare premiums will rise, perhaps even faster than they have to date. 

ObamaCare supporters decry this as “sabotage,” but that is a subterfuge. When ObamaCare premiums rise to reflect the cost of ObamaCare’s regulations, it is what the world calls transparency. ObamaCare supporters fear such transparency because, as ObamaCare architect Jonathan Gruber admitted, the public would have rejected the law (and still might!) if they could actually see what it does. “[If] you made explicit that healthy people pay in and sick people get money,” Gruber admitted, “it would not have passed.”

And if you reach a point where you decry transparency as sabotage, it may be time to reevaluate your life.