No Let Up On The Bad News About Overdose Deaths

The National Center for Health Statistics (NCHS) just issued Data Brief Number 329, entitled “Drug Overdose Deaths in the United States, 1999-2017.” Drug overdose deaths reached a new record high, exceeding 70,000 deaths in 2017, a 9.6 percent increase over 2016. That figure includes all drug overdoses, including those due to cocaine, methamphetamines, and benzodiazepines. The actual breakdown according to drug category will be reported in mid-December. However, estimates are opioid-related deaths will account for roughly 49,000 of the total overdose deaths. 

The big takeaways, quoting the report:

- The rate of drug overdose deaths involving synthetic opioids other than methadone, which include drugs such as fentanyl, fentanyl analogs, and tramadol, increased from 0.3 per 100,000 in 1999 to 1.0 in 2013, 1.8 in 2014, 3.1 in 2015, 6.2 in 2016, and 9.0 in 2017.The rate increased on average by 8% per year from 1999 through 2013 and by 71% per year from 2013 through 2017.

-The rate of drug overdose deaths involving heroin increased from 0.7 in 1999 to 1.0 in 2008 to 4.9 in 2016. The rate in 2017 was the same as in 2016 (4.9).

-The rate of drug overdose deaths involving natural and semisynthetic opioids, which include drugs such as oxycodone and hydrocodone, increased from 1.0 in 1999 to 4.4 in 2016. The rate in 2017 was the same as in 2016 (4.4).

-The rate of drug overdose deaths involving methadone increased from 0.3 in 1999 to 1.8 in 2006, then declined to 1.0 in 2016. The rate in 2017 was the same as in 2016 (1.0).

Despite the fact that overdose deaths from prescription opioids—and even heroin—have stabilized, the overdose rate continues to climb due to the surge in fentanyl deaths. 

This has happened despite policies in place aimed at curtailing doctors from prescribing opioids to their patients in pain. Prescription surveillance boards and government-mandated prescribing limits have pushed prescribing down dramatically. High-dose prescriptions were down 41 percent between 2010 and 2016, another 16.1 percent in 2017, and another 12 percent this year.

Policies aimed at curbing prescribing are based on the false narrative that the overdose crisis is primarily the result of greedy drug makers manipulating gullible doctors into overtreating patients in pain and hooking them on drugs. But as I have written in the past, , the overdose crisis has always been primarily the result of non-medical users accessing drugs in the dangerous black market that results from prohibition. As the supply of prescription opioids diverted to the underground gets harder to come by, the efficient black market fills the void with other, more dangerous drugs. Lately, the synthetic opioid fentanyl has emerged as the number one killer.

In a New York Times report on the matter today, Josh Katz and Margot Sanger-Katz hint that policymakers are aiming at the wrong target by stating, “Recent federal public policy responses to the opioid epidemic have focused on opioid prescriptions. But several public health researchers say that the rise of fentanyls requires different tools. Opioid prescriptions have been falling, even as the death rates from overdoses are rising.”

Prescription opioids are not the cause of the overdose death crisis. Neither is fentanyl, despite the fact that it is now the primary driver of the rising death rate. The ultimate cause of the drug overdose crisis is prohibition. US policymakers should drop the false narrative and face reality, like Portuguese health authorities did 17 years ago.

Portugal, in 2001, recognized that prohibition was driving the death rate. At the time it had the highest overdose rate in Western Europe. It decriminalized all drugs and redirected efforts towards treatment and harm reduction. Portugal saw its population of heroin addicts drop 75 percent, and now has the lowest overdose rate in Europe. It has been so successful that Norway is about to take the same route.

At a minimum, policymakers in the U.S. should turn to harm reduction. They should expand syringe exchange and supervised injection facilities, lighten the regulatory burden on health care practitioners wishing to treat addicts with medication-assisted treatments such as methadoneand buprenorphine, and reschedule the overdose antidote naloxone to a truly over-the-counter drug.

Unless this happens, we should expect more discouraging news from the NCHS in the years ahead.

 

DEFENSE DOWNLOAD: Week of 11/29

Welcome to the Defense Download! This new round-up is intended to highlight what we at the Cato Institute are keeping tabs on in the world of defense politics every week. The three-to-five trending stories will vary depending on the news cycle, what policymakers are talking about, and will pull from all sides of the political spectrum. If you would like to recieve more frequent updates on what I’m reading, writing, and listening to—you can follow me on Twitter via @CDDorminey.  

  1. Senate defies White House on Saudi support in Yemen,” Elana Schor. In a 63-37 vote that took place late yesterday afternoon, the Senate moved forward on a resolution to withdraw U.S. support for Saudi Arabia’s war in Yemen. Every Democratic Senator plus 14 Republican Senators voted to ensure that this issue would be hotly debated, raising public awareness and sending a clear signal that this issue will not fissile out. 
  2. Yemen: Inquiry finds Saudis diverting arms to factions loyal to their cause,” Rod Austin. More on Yemen. The top line of the article is right in the description: “Investigators say weapons from UK and US have fallen into hands of splinter groups in Yemen, some with links to al-Qaida and ISIS.” This isn’t just small arms and light weapons. The investigation revealed that diverted weapon systems include “sophisticated armoured vehicles, rocket launchers, grenades and rifles.” 
  3. How Much Will The Space Force Cost?” Todd Harrison. Interested in the Space Force? This report goes in depth on three different ways the military could organize the Space Force: a Space Corps, Space Force-Lite, and Space Force-Heavy. You can get information down to the line-item level or just hit the highlights of total cost estimates for each option. 

Keep Government Away From Twitter

Twitter recently re-activated Jesse Kelly’s account after telling him that he was permanently banned from the platform. The social media giant informed Kelly, a conservative commentator, that his account was permanently suspended “due to multiple or repeat violations of the Twitter rules.” Conservative pundits, journalists, and politicians criticized Twitter’s decision to ban Kelly, with some alleging that Kelly’s ban was the latest example of perceived anti-conservative bias in Silicon Valley. While some might be infuriated with what happened to Kelly’s Twitter account, we should be wary of calls for government regulation of social media and related investigations in the name of free speech or the First Amendment. Companies such as Twitter and Facebook will sometimes make content moderation decisions that seem hypocritical, inconsistent, and confusing. But private failure is better than government failure, not least because unlike government agencies, Twitter has to worry about competition and profits.

It’s not immediately clear why Twitter banned Kelly. A fleeting glance of Kelly’s Twitter feed reveals plenty of eye roll-worthy content, including his calls for the peaceful breakup of the United States and his assertion that only an existential threat to the United States can save the country. His writings at the conservative website The Federalist include bizarre and unfounded declarations such as, “barring some unforeseen awakening, America is heading for an eventual socialist abyss.” In the same article he called for his readers to “Be the Lakota” after a brief discussion about how Sitting Bull and his warriors took scalps at the Battle of Little Bighorn. In another article Kelly made the argument that a belief in limited government is a necessary condition for being a patriot.

I must confess that I didn’t know Kelly existed until I learned the news of his Twitter ban, so it’s possible that those backing his ban from Twitter might be able to point to other content that they consider more offensive that what I just highlighted. But, from what I can tell Kelly’s content hardly qualifies as suspension-worthy.

Some opponents of Kelly’s ban (and indeed Kelly himself) were quick to point out that Nation of Islam leader Louis Farrakhan still has a Twitter account despite making anti-semitic remarks. Richard Spencer, the white supremacist president of the innocuously-named National Policy Institute who pondered taking my boss’ office, remains on Twitter, although his account is no longer verified.

All of the of the debates about social media content moderation have produced some strange proposals. Earlier this year I attended the Lincoln Network’s Reboot conference and heard Dr. Jerry A. Johnson, the President and Chief Executive Officer of the National Religious Broadcasters, propose that social media companies embrace the First Amendment as a standard. Needless to say, I was surprised to hear a conservative Christian urge private companies to embrace a content moderation standard that would require them to allow animal abuse videos, footage of beheadings, and pornography on their platforms. Facebook, Twitter, and other social media companies have sensible reasons for not using the First Amendment as their content moderation lodestar.

Rather than turning to First Amendment law for guidance, social media companies have developed their own standards for speech. These standards are enforced by human beings (and the algorithms human beings create) who make mistakes and can unintentionally or intentionally import their biases into content moderation decisions. Another Twitter controversy from earlier this year illustrates how difficult it can be to develop content moderation policies.

Shortly after Sen. John McCain’s death a Twitter user posted a tweet that included a doctored photo of Sen. McCain’s daughter, Meghan McCain, crying over her father’s casket. The tweet included the words “America, this ones (sic) for you” and the doctored photo, which showed a handgun being aimed at the grieving McCain. McCain’s husband, Federalist publisher Ben Domenech, criticized Twitter CEO Jack Dorsey for keeping the tweet on the platform. Twitter later took the offensive tweet down, and Dorsey apologized for not taking action sooner.

The tweet aimed at Meghan McCain clearly violated Twitter’s rules, which state: “You may not make specific threats of violence or wish for the serious physical harm, death, or disease of an individual or group of people.”

Twitter’s rules also prohibit hateful conduct or imagery, as outlined in its “Hateful Conduct Policy.” The policy seems clear enough, but a look at Kelly’s tweets reveal content that someone could interpret as hateful, even if some of the tweets are attempts at humor. Is portraying Confederate soldiers as “poor Southerners defending their land from an invading Northern army” hateful? What about a tweet bemoaning women’s right to vote? Or tweets that describe our ham-loving neighbors to the North as “garbage people” and violence as “underrated”? None of these tweets seem to violate Twitter’s current content policy, but someone could write a content policy that would prohibit such content.

Imagine developing a content policy for a social media site and your job is to consider whether content identical to the tweet targeting McCain and content identical to Kelly’s tweet concerning violence should be allowed or deleted. You have four policy options:

     
  Delete Tweet Targeting McCain Allow Tweet Targeting McCain
Delete Kelly’s Tweet

1

2

Allow Kelly’s Tweet

3

4

 

Many commentators seem to back option 3, believing that the tweet targeting McCain should’ve been deleted while Kelly’ tweet should be allowed. That’s a reasonable position. But it’s not hard to see how someone could come to the conclusion that 1 and 4 are also acceptable options. Of all four options only option 2, which would lead to the deletion of Kelly’s tweet but also allow the tweet targeting McCain, seems incoherent on its face.

Social media companies can come up with sensible-sounding policies, but there will always be tough calls. Having a policy that prohibits images of nude children sounds sensible, but there was an outcry after Facebook removed an Anne Frank Center article, which had as its feature image a photo of nude children who were victims of the Holocaust. Facebook didn’t disclose whether an algorithm or a human being had flagged the post for deletion.

In a similar case, Facebook initially defended its decision to remove Nick Ut’s Pulitzer Prize-winning photo “The Terror of War,” which shows a burned, naked nine year old Vietnamese girl fleeing the aftermath of an South Viernamese napalm attack in 1972. Despite the photo’s fame and historical significance Facebook told The Guardian, “While we recognize that this photo is iconic, it’s difficult to create a distinction between allowing a photograph of a nude child in one instance and not others.” Facebook eventually changed course, allowing users to post the photo, citing the photo’s historical significance:

Because of its status as an iconic image of historical importance, the value of permitting sharing outweighs the value of protecting the community by removal, so we have decided to reinstate the image on Facebook where we are aware it has been removed.

What about graphic images of contemporary and past battles? On the one hand, there is clear historic value to images from the American Civil War, the Second World War, and the Vietnam War, some of which include graphic violent content. A social media company implementing a policy prohibiting graphic depictions of violence sounds sensible, but like a policy banning images of nude children it will not eliminate difficult choices or the possibility that such a policy will yield results many users will find inconsistent and confusing.

Given that whoever is developing content moderation policies will be put in the position of making tough choices it’s far better to leave these choices in the hands of private actors rather than government regulators. Unlike the government, Twitter has a profit motive and competition. As such, it is subject to far more accountability that the government. We may not always like the decisions social media companies make, but private failure is better than government failure. An America where unnamed bureaucrats, not private employees, determine what can be posted on social media is one where free speech is stifled.

To be clear, calls for increased government intervention and regulation of social media platforms is a bipartisan phenomenon. Sen. Mark Warner (D-VA) has discussed a range of possible social media policies, including a crackdown on anonymous accounts and regulations modeled on the European so-called “right to be forgotten.” If such policies were implemented (the First Amendment issues notwithstanding), they would inevitably lead to valuable speech being stifled. Sen. Ron Wyden (D-OR) has said that he’s open to carve-outs of Section 230 of the Communications Decency Act, which protects online intermediaries such as Facebook and Twitter from liability for what users post on their platforms.

When it comes to possibly amending Section 230 Sen. Wyden has some Republican allies. Never mind that some of these Republicans don’t seem to fully understand the relevant parts of Section 230.

That social media giants are under attack from the left and the right is not an argument for government intervention. Calls for Section 230 amendment or “anti-censorship” legislation are a serious risk to free speech. If Section 230 is amended to increase social media companies’ risk of liability suits we should expect these companies to suppress more speech. Twitter users may not always like what Twitter does, but calls for government intervention are not the remedy.

MPD’s NEAR Act Implementation: The Wrong Way to Do the Right Thing

In 2016, the D.C. City Council unanimously passed the Neighborhood Engagement Achieves Results (NEAR) Act, partly based on a pilot program in Richmond, California, that sought to implement a holistic approach to crime fighting. Recently, the ACLU of the District of Columbia (ACLU DC) filed suit against the Metropolitan Police Department (MPD) to implement the component of the NEAR Act that requires police to track demographic and other relevant data of individuals who police stop and frisk for weapons or otherwise search. MPD Chief Peter Newsham has admitted the department has not yet been able to comply with the law’s data collection requirement and recently a federal judge indicated that he was preparing an injunction in ACLU DC’s favor to compel the department to produce and publish the data.

As a policing researcher, the value of new empirical data is high, because, until recent decades, we haven’t had much of it. For just one example, this paucity of reliable policing data led the federal government to underestimate the number of persons shot and killed by police in the United States by about 150 percent every year. Thanks to the researchers at the Washington Post, we now know that police officers fatally shoot an average near 1,000 individuals every year instead of the roughly 400 that were annually reported by the FBI. Data is particularly helpful when trying to measure the racial and ethnic impacts of intrusive policies like stop and frisk because claims of racial bias are nearly impossible to prove in a single circumstance, but data can support or undermine claims of racial bias depending on population and other variables. While numbers by themselves cannot tell the whole story of any given policy, well-cultivated data can show where and in what circumstances disparities arise, giving researchers information to explain what is happening.

Before the judge made his announcement in the ACLU DC lawsuit, MPD had been training its officers to implement the demographic recording section of the NEAR Act. I had conversations with more than a dozen patrol officers over the past several weeks, and the NEAR Act was often a subject of discussion. While each officer I talked to said they would implement the law in line with their general order to do so, personal reactions ranged from ambivalent, to skeptical, to fearful of what implementation would bring. Most notably, officers were apprehensive about asking people who they have stopped and potentially searched for even more personal information, including their ethnicity and gender identity.

The general order posted on the MPD website states that officers should use the following statement when asking for personal information, “Per the NEAR Act, as passed by the Council of the District of Columbia, we are required to ask for your gender, race, ethnicity, and date of birth.”

But the text of the NEAR Act does not require officers to ask this personal information, only to record it.  Indeed, researchers use demographic information to discover racial and other disparities in police stops and to determine whether those disparities are driven by officer bias or by departmental policy. In either case, the relevant demographic information is the sex and race of the stopped individual that the officer observed while making a stop, not the ethnicity or gender identity of the person stopped. What’s more, the general order instructs officers to select “unknown” whenever an individual refuses to answer the questions, subverting the purpose of recording the officer’s observations because of an uncooperative subject.

Center for Immigration Studies Shows a Very Small Threat from Terrorists Crossing the Mexican Border

Todd Bensman, the Senior National Security Fellow at the Center for Immigration Studies (CIS), wrote a recent report entitled “Have Terrorists Crossed Our Border?” in which he presents a list of  “15 suspected terrorists have been apprehended at the U.S.-Mexico border, or en route, since 2001.”  Bensman lists these 15 individuals, some of which don’t have names, and describes their actions.  He writes that his research is based on publicly available information, so it is likely a “significant under-count” of the actual terrorists who entered.  Bensman also writes that “several reports that strongly indicated the crossing of additional migrant terrorism suspects were excluded from this list due to insufficient detail.” 

If the goal of this CIS report was to show how small the terrorist threat along the Mexican border is, then it succeeded marvelously.  None of the terrorists identified committed an attack on U.S. soil, were convicted of planning an attack on U.S. soil, or even charged with doing so.  They killed or injured zero people on U.S. soil in terrorist attacks.  The only actual terrorism conviction for this group is of conspiracy to materially aid a foreign terrorist organization.  However, one person who entered the United States on his way to Canada did commit an attack in Alberta where he injured five people. 

Six of the 15 people that Bensman identifies are unnamed, thus we cannot independently verify or check whether they belong on this list (Table 1).  Interestingly, much of the evidence for those six unnamed individuals comes from passing comments in news stories or a Texas Department of Public Safety (DPS) report whose evidence is “deemed credible,” but that “could not be independently corroborated.”  Who deemed that evidence to be credible?  If people can’t independently corroborate the evidence, how can we know that it is credible?  We should take such claims with a large grain of salt, especially after frequent government terrorism exaggerations

Table 1 organizes the names that Bensman provides.  None committed or attempted to commit an attack on U.S. soil.  Two of the individuals were charged with terrorism offenses.  Mahmoud Kourani was charged and convicted of conspiracy to materially support a foreign terrorist organization (MSFT), Hezbollah, and sentenced to 54 months.  His actions are certainly troubling and should be illegal, but there is no evidence that he was a threat to American lives or property.  The Muhammad Kourani case is more nuanced and odd. He was a member of Hezbollah who became an informant for the United States.  After giving the FBI information on Hezbollah, the government used that information to charge Kourani with MSFT and conspiracy to do so.  There’s no evidence that he had any intention to every commit an attack on U.S. soil.  His trial will occur in 2019, so it’s premature to count him as a terrorist although he seems to have deep “ties” with Hezbollah.

Table 1
Terrorists, Suspected Terrorists, and Those with Suspected Terrorism Ties

Name Committed an Attack on US Soil Attempted or Planned an Attack on US Soil Terrorism Charges in the United States Terrorism Convictions in the United States Notes
Abdulahi Sharif No No No No Sharif committed an attack in Canada, injuring 5.
Ibrahim Qoordheen No No No No  
Unidentified Afghan national No No No No  
Muhammad Azeem No No No No  
Mukhtar Ahmad No No No No  
Unnamed Somali national No No No No  
Unnamed Sri Lankan national No No No No  
Unnamed Somali national No No No No  
Unnamed Bangladeshi National No No No No  
Abdullahi Omar Fidse No No No No 18 USC 1505 is not a terrorism statute, but there is an extra penalty if it involves a terrorism investigation. 
Mohammad Ahmad Dhakane No No No No  
Farida Goolam Ahmed No No No No  
Muhammad Kourani No No MSFT and MSFT Conspiracy No A court case is scheduled for 2019.
Al-Manar Television employee No No No No  
Mahmoud Kourani No No MSFT Conspiracy Yes  

 

Source: “Have Terrorists Crossed Our Border?” by Todd Bensman. 

Another interesting example is Ibrahim Qoordheen (sometimes spelled Qoordheer), who was arrested in Costa Rica while supposedly on his way to the U.S. border.  There is almost no publicly available research on him after his arrest in March 2017.  Gustavo Mata, the Costa Rican Minister of Public Security, said they would extradite Qoordheen to the United States if the U.S. government provided any evidence of his terrorism ties beyond a hit in a government database.  There is no government press release announcing his extradition to the United States and no other evidence online of what happened to Qoordheen, but he certainly wasn’t charged or convicted with any terrorism offenses in the United States. 

The only example of a real terrorist who crossed the border with Mexico during this time was Abdulahi Sharif.  He injured five people in an attack in Canada in 2017 and is currently awaiting trial there.  The evidence is sketchy, but Sharif apparently tried to enter the United States through a port of entry in 2011 and was detained – as he should have been.  There’s no indication that he made an asylum claim.  Regardless, the U.S. government let him go because it could not deport him to Somalia and lost track of him as he applied for refugee or asylum status in Canada in early 2012.  Five years later, Sharif tried to murder five people in Alberta, Canada.  Six years passed from Sharif’s attempted entry to the United States in 2011 to his attack in Canada in 2017.  His weapons were a knife and a car.  It’s hard to believe that he was planning to commit an attack before going to Canada, but a perfect system that could predict the future would have stopped him.  It bears repeating that Sharif did not commit an attack on U.S. soil and did not plan to commit an attack here.

Furthermore, Bensman’s rhetoric is unreasonably alarming relative to the scale of the terrorist threat along the Mexican border.  The title of Bensman’s report is “Have Terrorists Crossed Our Border?”  Surely, that means he must be talking about only terrorists, right?  Nope.  The subtitle walks back the title: “An initial count of suspected terrorists encountered en route and at the U.S. Southwest Border Since 2001 [emphasis added].”  So, his report only covers suspected terrorists?  Nope.  Elsewhere in the document, Bensman writes that his report:

[P]rovides an initial accounting of publicly documented instances, between 2001 and November 2018, of some 15 migrants with credibly suspected or confirmed terrorism ties who were encountered at the southern border after smuggling through Latin America, or who were encountered while presumably en route [emphasis added].

Those with “credibly suspected or confirmed terrorism ties,” are quite a bit different from suspected terrorists and even more distantly related to real terrorists.  Lots of people have “ties” to terrorists that are not significant in any way.  For instance, those related to terrorists have “terrorism ties,” but that does not mean that the family members of terrorists are themselves, terrorists.  In other words, he’s counting just about everyone apprehended who has “terrorism ties” according to “credible” evidence that “could not be independently corroborated” in many cases.  To see how ludicrous this standard is, which is common in much of the terrorism literature, substitute in another crime such as robbery for “terrorism” and see how unremarkable these statements are.   

This is a common rhetorical trick in terrorism publications.  For instance, a government list of “627 terrorism-related” prosecutions revealed that 45 percent of them were only convicted of non-terrorism offenses.  The three Abuali brothers are my favorites.  They are included in the government’s list of “terrorism-related” convictions even though their crime was stealing boxes of breakfast cereal, Kellogg’s specifically.  Stealing boxes of Raisin Bran is a crime, but depriving people of their breakfast doesn’t count as terrorism and neither are the cases that Bensman provides below. 

A count of real terrorists who have crossed the Mexican border since 2001 and wanted to harm Americans would be very short: it would contain zero names.  Three people entered the U.S. illegally through the Mexican border in 1984 and grew up to be terrorists who were convicted of planning an incompetent plot in 2008.  When Americans think of terrorists, they think of people attacking Americans on U.S. soil.  Sending information to Hezbollah is a terrorist offense and it should be illegal, but it is not as dangerous or severe as setting off a bomb or shooting people in pursuit of Jihad.  The only possible exception to this is Abdulahi Sharif who entered the United States on his way to Canada where he then committed an attack five years later. 

Bensman claims that he left out many names because of “insufficient detail,” but one can only imagine how thin the evidence against them is based on how little of it exists to condemn men with names as terrifying as “Al-Manar Television employee” and “Unnamed Bangladeshi national.”  Except for Abdulahi Sharif, who tried to enter through a port of entry and then went to Canada several years before committing his attack where he injured five people, there is little evidence of a terrorist threat from the Mexican border.  If this is the best evidence available of a terrorist threat across the Mexican border, then we should all feel a lot more secure.  

A Double Win in the Dusky Gopher Frog Case

By a vote of 8-0 (Justice Kavanaugh did not participate), the Supreme Court today gave a rational reading of both the Endangered Species Act (ESA) and its own power to review administrative agency actions. The decision in Weyerhaeuser v. U.S. Fish & Wildlife Service is an important win for property owners against arbitrary agency decisions. See Cato’s amicus brief here.

The case arose when the Fish and Wildlife Service (FWS), which administers the ESA on behalf of the Secretary of the Interior, designated a large parcel of land in Louisiana owned by Weyerhaeuser and a group of family landowners as critical habitat for the endangered dusky gopher frog, a small population of which lives today in Mississippi. The problem, however, was that the frog had not lived in Louisiana for decades and, worse still, the land in question, far from being critical habitat, was no habitat at all since it was unsuitable for sustaining the frog’s life cycles. On appeal, FWS did not dispute that critical habitat must be habitat; it argued instead that habitat includes areas that would require “some degree of modification” to support a sustainable population of a given species. In her dissent from the Fifth Circuit’s decision, Judge Priscilla Owen nicely summarized the immense practical implications of that view: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

Fortunately, Chief Justice Roberts, writing for the Court, today carefully parsed the ESA’s language to avoid that result. And of equal if not greater importance, he did the same to sustain the Administrative Procedure Act’s “basic presumption of judicial review” of agency action, finding here that the ESA requires the Secretary to take into consideration economic and other impacts before making a critical habitat designation. The economic impact to these plaintiffs of losing their right to develop their land was estimated to be $34 million—all to preserve a frog’s uninhabitable habitat. No wonder the decision was 8-0. Still, the plaintiffs had to go all the way to the Supreme Court to vindicate their rights.

The Court sent the case back to the Fifth Circuit to be resolved consistent with today’s opinion.

Supreme Court Upholds Property Rights in Frog Case

This morning, the Supreme Court ruled, unanimously, that a species’ “critical habitat” for purposes of the Endangered Species Act (ESA), is habitat where the species actually lives. Accordingly, it sent Weyerhaeuser v. U.S. Fish & Wildlife Service back to the U.S. Court of Appeals for the Fifth Circuit to determine whether that’s the case for certain land involving the dusky gopher frog, as well as to see whether the federal agency properly used cost-benefit analysis in its designation.

This quick ruling, coming less than two months after argument, was a breath of fresh air. The ESA doesn’t give the government unlimited authority to do whatever it wants—and land on which a particular animal has never lived and where it can’t live can hardly be considered “critical habitat.” The Fish and Wildlife Service should look into ways of protecting critters without intruding on private property rights or abusing federal power. Good on the Supreme Court for holding bureaucrats’ feet to the fire of judicial review.

For more on the case, see this background and Cato’s brief.