NCLA Asks Third Circuit to Rule Against HHS’s Coercive Medicare Drug Price ‘Negotiation’ Program
July 19 2024 - 8:21PM
Today, the New Civil Liberties Alliance filed an amicus curiae
brief with the U.S. Court of Appeals for the Third Circuit in
Bristol Myers Squibb Company v. Becerra. NCLA urges the Third
Circuit to rule it is unlawful for the Department of Health and
Human Services (HHS) to hold a company’s business hostage until it
surrenders its constitutional property rights. NCLA’s brief
explains how the law at issue violates the “unconstitutional
conditions” doctrine, which prevents the indirect trampling of
constitutional rights.
Two years ago, Congress enacted the Inflation
Reduction Act of 2022, part of which sought to lower Medicare drug
costs. Instead of achieving this important goal lawfully, it chose
an approach that cannot be reconciled with our Constitution. The
Medicare cost reduction program’s goal is to force pharmaceutical
companies to sell their products at less than market value. It
cannot do so directly without violating the Takings Clause of the
Fifth Amendment. So, it tells companies: Either forfeit your
constitutional right or pay excise taxes and penalties on your
products that are so draconian they will destroy your business. In
other words, as clichéd mafia movies might put it: “Nice business
you got there; Be a shame if anything happened to it.” The U.S.
Supreme Court has already spoken to this type of quintessentially
underworld behavior, choosing the descriptive word “extortion.”
It may be politically popular, albeit
short-sighted, to curtail the constitutional rights of big
companies that lay golden eggs, but if Congress can do this to the
pharmaceutical companies, then it can do it to mom-and-pop
businesses, too. NCLA knows Americans deserve better than a
Congress that engages in extortionate behavior. But more
importantly, they have a right to be free of even sophisticated
attempts to undermine our Constitution.
NCLA released the following statements:
“Constitutional rights are not annoyances for
Congress to evade through sophisticated indirection and
manipulation. They are to be honored frankly and in full. Lowering
health care costs is a laudable goal, but subverting the
Constitution to get it done is a price too high to
pay.”— Daniel Kelly, Senior Litigation Counsel,
NCLA
“The unconstitutional conditions doctrine
prohibits the government from using ‘consent’ to describe clearly
lawful market participation as a fiction to mask this scheme of
extortionate takings.”— Peggy Little, Senior
Litigation Counsel, NCLA
“The Constitution does not permit Congress to
use a form of extortion to do indirectly what the Constitution
forbids it from doing directly. The Third Circuit should make
that clear and rule against HHS.”— Andrew Morris,
Senior Litigation Counsel, NCLA
For more information visit
the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights
group founded by prominent legal scholar Philip Hamburger to
protect constitutional freedoms from violations by the
Administrative State. NCLA’s public-interest litigation and other
pro bono advocacy strive to tame the unlawful power of state and
federal agencies and to foster a new civil liberties movement that
will help restore Americans’ fundamental rights. ###
Ruslan Moldovanov
New Civil Liberties Alliance
202-869-5237
ruslan.moldovanov@ncla.legal