In the latest episode of “Cops Practicing Medicine,” a floor vote is scheduled in the House of Representatives for H.R. 3878, sponsored by Rep. David McKinney, (R‑WV). Under current law, drug makers and distributors are required to report to the Drug Enforcement Administration any suspicious orders for controlled substances. H.R. 3878 would also require them to perform “due diligence” on their suspicions, document and report their due diligence to the DEA, and refuse to fill the order if their suspicions are not resolved by the due diligence.

This amounts to the DEA commandeering the drug makers and distributors.

For the past ten years, the DEA and other policymakers effectuated a dramatic reduction in opioid prescribing only to see the overdose rate climb, as non‐​medical users have switched to cheaper and more readily available heroin and fentanyl provided by the efficient black market.

The DEA has gradually tightened production quotas of injectable and non-injectable opioids generating shortages of intravenous opioids during the COVID-19 pandemic, causing many hospitals to cancel or delay necessary procedures and jeopardizing the management of patients on ventilators, according to a July 22 report from the hospital policy group Premier.

This is not the first time that DEA opioid production quotas caused a critical shortage in hospitals. I wrote here about the shortage the agency helped create in 2018.

For the past several years, the DEA and drug task forces of local police departments have been intimidating health care practitioners into practicing pain management according to the edicts of law enforcement. State-based prescription surveillance programs enable law enforcement to arrest and prosecute doctors that they believe are “overprescribing” opioids to their patients—even though there is no legal definition of “overprescribing.”

This has cast a chilling effect on prescribers, many of whom have resorted to forced rapid tapering of their chronic pain patients off of opioids, refusing to treat patients in pain, or undertreating both acute and chronic pain. Many patients now suffer, and in desperation, some turn to the black market or even to suicide for relief.

This regression toward a pre-modern approach to the treatment of pain is based on a lack of understanding about the differences between physical dependency on a drug and substance use disorder (addiction). It is also based upon the refusal to recognize that, based upon the government’s own data, there is no correlation between prescription volume and the non-medical use of prescription opioids or opioid use disorder among persons over age 12.

The Centers for Disease Control and Prevention reports a provisional overdose death rate of 76,092 for the past twelve months ending April 2020, of which 41,592 (54.6%) involved fentanyl and 13,898 (18%) involved heroin, 18,227 (24%) involved methamphetamine and other psychostimulants, 17,601 (23%) involved cocaine, and 12,180 (16%) involved prescription opioids.

So while the DEA persists in its intrusion into the practice of medicine, the overdose rate continues to rise as a result of drug prohibition and the deadly black market it creates.

In September 2019 the DEA reported on page 48172 of the Federal Register:

As a result of considering the extent of diversion, DEA notes that the quantity of FDA‐​approved drug products that correlate to controlled substances in 2018 represents less than one percent of the total quantity of controlled substances distributed to retail purchasers.(emphasis added)

Therefore, it appears that diversion of prescription opioids into the black market is now a rare event. An obvious question then is where is the need for drug makers and distributors to join with cops in the practice of medicine?

The Wall Street Journal ran a news piece the other day on government workers entitled “Tighter Municipal Budgets Shrink Retiree Health Benefits.” The piece was sympathetic to the plight of state and local workers and opened with “America’s retired workers are getting squeezed on their health care.”

Apparently, some state and local governments are trimming retirement health benefits. The reforms are needed because many governments have not pre-funded the benefits, which is an irresponsible practice I examined here.

What the Journal does not tell readers is that state and local government workers have some of the nation’s best retirement benefits. Most private-sector workers do not receive any retirement health benefits, let alone the generous packages received by government workers. As taxpayers, private-sector workers are the ones paying for generous government benefits.

Federal Medicare benefits kick in at age 65. But many government workers retire years earlier, and they continue receiving employer-based benefits to fill the void. Journal readers may wonder why they are supposed to feel sorry for workers taking a benefit trim for a type of benefit that they may not receive at all.

The chart shows data from the Bureau of Labor Statistics (pp. 339, 523). In 2020, 68 percent of state and local government workers were covered by retirement health benefits when under age 65, compared to just 13 percent of private-sector workers. Most government jobs are “management, profession, and related,” so the chart also shows the BLS data for this category.

Many Journal news pieces imply that government spending restraint is bad. I commented on prior pieces here, here and here. I’d like to see more balance.

Note: the BLS says, “Employee benefits in state and local government should not be directly compared to private industry.” The agency cautions that the types of jobs in the public and private sectors differ. I don’t agree with the BLS’s blanket statement, but their point should be kept in mind. For this reason, I included the figures for “management, professional, and related” to show that even in similar sorts of jobs, there is a large difference in benefit coverage. The BLS data show that 11.1 million of 19.4 million state/​local jobs were “management, professional, and related.”

The Affordable Care Act is unconstitutional and on balance makes access to health care less secure. Since President Obama signed the ACA into law in 2010, the executive and judicial branches have amended it in so many ways–outside of the legislative process–that it is even more wildly unconstitutional and more appropriate to refer to it as “ObamaCare,” a law that no Congress ever passed, nor ever could have passed.

Today, the Supreme Court will hear California v. Texas, a case challenging the constitutionality of ObamaCare. Given that the media have described me as “ObamaCare’s Enemy No. 1″ and “ObamaCare’s single most relentless antagonist,” you might think I want the Court to use this opportunity to strike down the law. I do not. I hope the Court will rule 9–0 against the plaintiffs.

As I have written previously, California v. Texas is a meritless case, both because there’s no mandate to challenge any more, under John Roberts’s taxing power argument or otherwise, and thus no one has standing to challenge it. I also disagree with the amicus brief my Cato Institute colleagues Ilya Shapiro (my sometime co‐amicus) and Josh Blackman filed in the case, which is a narrower take. I agree more with the standing and severability analyses of my sometime co‐​author Prof. Jonathan Adler.

California v. Texas is worse than meritless, however. Conservatives rightly complain that in NFIB v. Sebelius and King v. Burwell, the Left persuaded the Supreme Court to throw out the rulebook to hand them a policy “win.” But now, it is conservatives who are doing exactly that in California v. Texas. It was wrong when the Left did it. It is wrong when the Right does it.

One of the reasons throwing out the rulebook is wrong is that now, those people on the Left who pressured the Court not to strike down the ACA in NFIB–and even more those who pressured the Court to rewrite the ACA in King–have zero credibility when they now appeal to the Court to follow the rulebook. If conservatives persuade the Supreme Court to throw out the usual rules to hand conservatives a policy “win,” ObamaCare supporters who cheered the Court’s rulings in NFIB and King will have no one but themselves to blame. He who lives by terrible judging may die by terrible judging.

Democrats have made dire predictions that the six Republican appointees on the Court will use this case to strike down ObamaCare in its entirety. That is unlikely in the extreme. If the Court uses California v. Texas to strike down ObamaCare, I will eat my hat. Such predictions are less about legal analysis than scaring voters into going to the polls to vote for Democrats.

But if we indulge that fantasy scenario, it is worth emphasizing that there would be serious benefits to overturning ObamaCare:

• Responsible polling consistently shows ObamaCare’s preexisting-conditions provisions are unpopular. Eliminating them would end the race to the bottom they have sparked in health insurance markets.
• Health insurance premiums would plummet for the vast majority of Americans in the individual market.
• Innovations that protect people with employer-sponsored insurance from preexisting conditions after they change jobs–innovations that ObamaCare destroyed–could return.
• Prices for oral contraceptives could stop skyrocketing and start to fall again, as they had been falling before ObamaCare made them “free.”
• Consumers could purchase only the coverage they want, which would protect many consumers from having to purchase coverage that violates their conscience.
• States could keep Medicaid-expansion enrollees on the rolls, and could even offer subsidies to Exchange enrollees who lose their ObamaCare subsidies, but they would have to do it with current tax dollars, rather than by increasing the federal debt.
• Federal and state lawmakers would have to focus on reforms that actually work, have bipartisan support, and make health care subsidies less necessary. Congress could start by reforming the tax treatment of health insurance, which strips coverage from people with COVID-19 and other illnesses every day.
• Taxes would fall, stimulating the economy.

The fear that Democrats have generated about the Supreme Court using California v. Texas to overturn ObamaCare is hysteria, both because it won’t happen and because it wouldn’t be calamitous if it did. The most lasting injury it would inflict would be to the rule of law.

Ronald Reagan once said, “There is no limit to the amount of good you can do if you don’t care who gets the credit.” In the U.S.’s fraught political climate, sadly it was predictable that even the welcome news of Pfizer’s promising COVID-19 trial results would produce a political dogfight about the timing of the announcement and who should be thanked for the prospect of the pandemic ending sooner.

Vice President Mike Pence, for example, tweeted this morning: “HUGE NEWS: Thanks to the public-private partnership forged by President @realDonaldTrump, @pfizer announced its Coronavirus Vaccine trial is EFFECTIVE, preventing infection in 90% of its volunteers.” Certainly, the federal government helped grease the wheels of COVID-19 vaccine development with commitments to buy doses from certain companies (something which economists pushed hard for.) In Pfizer’s case, that was an agreement to pay $1.9 billion for 100 million doses (enough for 50 million people) with an option to purchase 500 million more—provided the vaccine prove at least 50 percent more effective than a placebo. Yet, is it really the “public-private partnership” here that delivered this particular success?

Interestingly, Pfizer was not in the part of the government’s Operation Warp Speed program that funded vaccine research and development, unlike six other companies. Asked in September why they had opted to shun this money and bear the R&D risks themselves, and what advantages that might grant them, Pfizer CEO Dr. Albert Bourla explained:

You’re right, if it fails, it goes to our pocket. And at the end of the day, it’s only money. That will not break the company, although it is going to be painful because we are investing one billion and a half at least in COVID right now. But the reason why I did it was because I wanted to liberate our scientists from any bureaucracy. When you get money from someone that always comes with strings. They want to see how we are going to progress, what type of moves you are going to do. They want reports. I didn’t want to have any of that. I wanted them— basically I gave them an open checkbook so that they can worry only about scientific challenges, not anything else. And also, I wanted to keep Pfizer out of politics, by the way.

There’s a libertarian regulatory lesson here: as we saw with the Food and Drug Administration and COVID-19 diagnostic testing, bureaucracy can hold up important innovation, bringing enormous costs during a pandemic that right now is severely constraining commercial activity and our liberties. And with government funds come the threat of both political pressure and control that put further sand in the gears.

As I write this post the winner of the 2020 Presidential election is still to be determined. But the war on drugs was one clear loser on Election Day. Voters in Arizona, Montana, New Jersey, and South Dakota approved ballot propositions legalizing recreational marijuana possession and sales. Voters also legalized marijuana for medicinal use in Mississippi and through a separate proposition in South Dakota.

Oregon voters struck an even greater blow against the drug war when they approved Measure 110, which decriminalizes possession of all drugs within the state’s borders. I wrote about Oregon’s drug decriminalization measure here.

This now makes a total of 35 states that have legalized marijuana for medicinal use, and 15 states plus the District of Columbia that have legalized marijuana for recreational use.

It is time for the Drug Enforcement Administration to remove marijuana from Schedule I of the Controlled Substances Act of 1972, where marijuana is classified along with such drugs as diacetyl-morphine (heroin), lysergic acid diethylamide (LSD), and MDMA (“ecstasy”) as having “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”

President Donald Trump’ position on federal legalization or decriminalization of marijuana has been unclear and inconsistent. And former Vice President Joe Biden is on record as opposing legalization, believing it to be a “gateway” to the use of harder and more dangerous drugs. But with states as diverse as Arizona, South Dakota, New Jersey, and Mississippi now embracing legalization, the dam may be about to burst.

In September the House of Representatives postponed a vote, until after the election, on the MORE (Marijuana Opportunity, Reinvestment, and Expungement) Act. Unfortunately, the bill doesn’t legalize marijuana federally. But it would remove marijuana from Schedule I, expunge prior criminal convictions related to marijuana, and provide access to capital for small marijuana businesses. It enjoys bipartisan support in the House. Once the dust from this election settles, perhaps the new additions to the list of states with legalized marijuana will re-energize the movement in Congress to end federal marijuana prohibition. Hopefully, when it gets to his desk, the President, whoever he may be, will sign it into law.

The marijuana legalization movement began with a few states legalizing the plant for medicinal use. Momentum gradually built to the point where federal legalization is now a realistic possibility. Perhaps one day historians will say the movement to end America’s longest war—the cruel and futile war on drugs—began with the decriminalization of all drugs in the state of Oregon.

The New York Times had an excellent article on October 27 discussing the role of B lymphocytes–which produce antibodies to viruses and other invading pathogens–and T lymphocytes–some of which directly attack and destroy the pathogens, and others of which develop memory for components of the invading pathogens.

After a person’s immune system has defeated an infection by COVID-19 or any other virus, that person’s B cells continue producing antibodies to that virus but, over time, antibody production and antibody levels gradually tail off. But as University of Pennsylvania immunologist Scott Hensley states in the Times article:

Declining antibody levels after the acute infection has resolved “is the sign of a normal healthy immune response,” Dr. Hensley said. “It doesn’t mean that those people no longer have antibodies. It doesn’t mean that they don’t have protection.”

Dr. Hensley says recent hyperventilating headlines about a study from Imperial College London that demonstrates a gradual decline in antibody levels post-COVID infection are “silly.”

That’s because B cells and antibody production are only one component of the immune response. Dr. Paul Elliott, an epidemiologist at Imperial College London points out in the Times article that some T lymphocytes retain memory of the pathogen and stimulate B cells to pump out more antibodies to it, if and when the pathogen re-invades. Other T lymphocytes directly attack and destroy the pathogen they remember. Still other T cells release factors that mobilize other components of the host’s immune system against the pathogen.

The Times article quotes Dr. Shane Crotty, a virologist at the La Jolla Institute for Immunology as saying:

A very small number of people may not make any antibodies. But even those people may have immune cells called T cells that can identify and destroy the virus. The vast majority of people infected with the coronavirus develop lasting cellular responses, according to several recent studies.

T cells are unlikely to prevent infection, but they may at least prevent serious illness by blunting the attack, Dr. Crotty said. Given all that, he said, interpreting low antibody levels to mean that immunity disappears, or that coronavirus vaccines will not be effective is “wrong.”

In the October 24 Cato Daily Podcast, I discussed, among other things, how T cell immunity might mean that many more people than we realize are already immune to COVID-19. T cell memory of other coronaviruses, e.g., those that cause the common cold, might also confer “partial immunity” to people exposed to COVID-19, and this might help explain why some people get milder symptoms—or no symptoms at all—from COVID-19 infections.

By educating readers who might otherwise conclude that reports of waning antibody levels in post-COVID-19 patients is ominous news, New York Times science reporter Apoorva Mandavilli provided a public service.

Recreational marijuana is now legal in Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington State, and the District of Columbia.

Four other states—Arizona, Montana, New Jersey, and South Dakota—have measures on the ballot in November to legalize recreational sales. Polls summarized by Ballotpedia show that Proposition 207 in Arizona, Initiative 190 in Montana, Question 1 in New Jersey, and Amendment A in South Dakota are all likely to pass.

One incentive for states to legalize marijuana is to raise tax revenues. Most of the states with legal recreational markets impose excise taxes on the retail price, which range from 10 percent to 37 percent. Numerous states impose taxes on growers, usually in addition to retail taxes. California, for example, imposes a 15 percent tax on the retail sales price plus taxes on growers based on plant weight. Illinois taxes marijuana based on THC content. Some states impose their regular retail sales taxes on top of these product‐​specific taxes.

Colorado has the longest experience with a legal recreational marijuana market. It imposes a 15 percent retail tax and a 15 percent wholesale tax on the product. In 2019, the state raised $263 million, which was 2.1 percent of the state’s general fund revenues. Total general fund revenues for the 50 states in 2020 were $913 billion, so if all states legalize recreational marijuana and raise relatively the same amount as Colorado, the total would be about $19 billion annually.

However, states should be careful not to impose heavy taxes or regulations on marijuana because that would harm industry entrepreneurs, suppress government revenues, and encourage the survival of a large black market. Marijuana demand is responsive to taxation. One empirical study found that the “medium‐​run elasticity of demand for marijuana is higher than the consensus estimates for cigarettes or gasoline.” Unfortunately, some states are imposing excessive taxes and regulations on marijuana and raising only a fraction of expected revenues while fueling black market sales.

How should marijuana tax revenues be used? One option is to use them to reduce corporate income taxes, which are highly inefficient sources of revenue. Another option is to use marijuana tax revenues to close today’s state budget gaps. Then, as the economy recovers, states could channel marijuana taxes into rainy day funds to help prepare for the next downturn. If a state raised about 2 percent of its general fund revenues from marijuana taxes, it could build a hefty rainy day fund over the next economic expansion.

How can the federal government help? It should normalize marijuana markets by removing the product from the list of Schedule 1 drugs, legalizing interstate commerce in the product, allowing for normal banking transactions for the industry, and allowing marijuana businesses to deduct expenses on tax returns as other businesses do. By legalizing the industry, the federal government would help state governments convert black markets to normal markets and boost state tax revenues.