(p. A15) The pharmaceutical company Merck claims in a lawsuit filed this week that the “Drug Price Negotiation Program for Medicare,” part of last summer’s Inflation Reduction Act, is an unconstitutional taking of company’s property and a violation of the company’s freedom of speech. If successful, this lawsuit will prevent the unconstitutional practice of forcing drug companies to sell drugs to the U.S. government at a government-determined price.
To make the provision of the 2022 law constitutional, Congress could have imposed price controls, or it could have bargained with pharmaceutical companies using the massive marketing power of Medicare, which accounts for some half of all American drug spending. Instead, Congress tried to prevent pharmaceutical companies from walking away from any potential deal. Under the act, secret negotiations force pharmaceutical companies to agree to government-determined prices amounting to massive discounts off market-based prices, under the threat of crippling taxes and penalties.
Americans tend to support pharmaceutical “price negotiations,” but oppose “price controls.” Knowing this, Congress set up a ruse.
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. . ., the law essentially requires a company to communicate that it agreed to the set price—compelled speech that is prohibited by the First Amendment. Time and again, the Supreme Court has declared forced speech beyond the power of the government. The government’s only seeming interest is to pretend that a system of unilateral price controls and mandated sales is actually a system of voluntary negotiations.
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(Note: the online version of the commentary has the date June 8, 2023, and has the same title as the print version.)