Make "Drugs" Drugs Again

Donald Trump has never hidden his passion for capital punishment, and he left little question he’d try his best to undo the 11th-hour-59th-minute wrenches the Biden administration threw in the system. It comes as no surprise, therefore, that among the blitzkrieg of executive orders issued shortly after reassuming the Presidency, Trump declared this White House the execution-friendliest administration in recent (perhaps in all of American) history.

Citing “broad public support“ for the death penalty (debatable on semantics) and the need for its “ultimate deterrent” effect (debatable on merits), the order—not yet numbered—directs the Attorney General to seek the death penalty “for all crimes of a severity demanding its use,” with extra effort to seek capital sentences for crimes against police or by undocumented immigrants. The order additionally directs the Attorney General to seek reimposed death sentences (via state courts) and harsher prison conditions for recipients of Biden’s commutations, as well as, seemingly, the end of Furman-imposed protections for capital defendants that “limit the authority of State and Federal governments to impose capital punishment.”

As noted above, no one was expecting a fairer or more merciful justice system under Trump; while the lengths the executive is prepared to go in seeking death might be a surprise, no one’s really shocked he wants to kill more people. However, one section—one word, really—could be a signal of just how far the Trump administration might depart from the precedent set by his first go-round:

The Trump Administration Admits that Execution Drugs Are Exactly That

As discussed before, lethal injection hit what might have been a significant chokepoint in 2017. States who’d been forced to find alternatives after legitimate pharmaceutical companies refused to collaborate on executions had turned to shady foreign exporters to ensure a supply. As one might imagine, the secrecy required to bring controlled substances into the country via smuggling or bootlegging also ran afoul of FDA regulations, and the agency began seizing these shipments. In 2020, then-AG Bill Barr’s Justice Department devised a workaround: if substances like pentobarbital were used for killing people rather than saving them, they weren’t “drugs” but “devices,“ and thus not subject to rules mandating their seizure. As I wrote last year, this seemed designed more to satisfy an internal inconsistency than to actually convince anyone:

It appears that the White House agrees with me, jettisoning—rhetorically, at least—the pretense that a medicine becomes something else entirely when it’s used in an execution.

A Little Accidental Honesty on the Death Penalty, Or a Sign the Government’s Guardrails Are Failing?

This round of semantics means nothing in practical terms. While the Biden administration abandoned the federal government’s execution protocol, it never officially rescinded Engle’s statement, and there have been no reports of execution drug seizures in recent years. If the FDA didn’t consider four years of a nominally anti-capital-punishment President the go-ahead to resume seizing execution drug imports, it’s unlikely to use a single word in an executive order as a basis to do so.

What it means for the wider Trump administration is a more compelling question. Trump’s executive orders already drawn criticism for bizarre and lazy wording, from a federal judge declaring he couldn’t believe the administration’s attorneys were arguing them in good faith to legal experts questioning if ChatGPT wrote them. It’s entirely possible that whoever, or whatever, wrote the new EO simply didn’t know about the 45th administration’s policy.

It’s also possible that this reflects a new understanding of what kind of President Trump intends to be. Much of Trump’s first presidency revolved around internal fights with “institutionalists,“ career officials or even appointees who put aside their agreements with Trump policy to resist his expansive view of executive power and blatant attempts to usurp the constitutional order. The Heritage Foundation’s Project 2025—which Trump dismissed on the campaign trail but put to work in the White House—was designed to not only create ways to legitimize the Trump agenda but build a network of loyalists who wouldn’t question carrying it out; he’s already made it well-known he wants it easier to fire civil servants poised to get in the way. That they’re not bothering to lie might be a sign of how much the truth is going to matter.