The U.S. Court of Appeals for the D.C. Circuit today decided Cook v. FDA, the lethal injection drug importation case. CJLF filed an amicus brief in this case.  The point we briefed related to the portion of the order directing the FDA to recover the sodium thiopental previously imported and presently in the possession of the States.  Agreeing with our brief, the court held that the District Court had no authority to issue this part of the order.  By doing so, it adjudicated the interests of parties not before the court, the States, in violation of Federal Rule of Civil Procedure 19.

In the remainder of the opinion, the Court of Appeals affirmed the holding that the FDA was required by law to stop the importations at the border.  This part will likely have no immediate practical effect, because no States are presently importing lethal injection drugs as far as we know.  Even so, Congress should amend the statute.  The baseline requirement for FDA approval of drugs is that they be "safe" and "effective," and for lethal injection those requirements are mutually exclusive.