Trampling on the Constitution

OPINION:

It was recently announced that the drugmaker Merck & Co. was suing the federal government due to a law passed by congressional Democrats last year as part of their misnamed Inflation Reduction Act that allows the Department of Health and Human Services to “negotiate,” Vito Corleone style, for lower prices on certain drugs.

According to this ill-conceived new law, a drug manufacturer that does not agree with the federal government’s price requirements in a so-called negotiation process may be slapped with a noncompliance fee starting at 65% of the total sales of the drug and increasing to 95% of total sales if the manufacturer is still out of compliance after 270 days.

This noncompliance fee is blatantly unconstitutional because it clearly violates the takings clause of the Fifth Amendment, and I have said so ever since the Democrats first floated the idea.

When the Democrats introduced the idea in 2019 in the Health Subcommittee of the Energy and Commerce Committee as part of their Lower Drug Costs Now bill in the 116th Congress, I immediately realized that on its face, the drug pricing provision penalty amounted to an unlawful taking.

I quickly voiced my concerns. Unfortunately, the Democrats were determined to claim a political victory and vilify both Republicans and drug manufacturers, caring not a whit about the Constitution.

When the bill was brought before the full committee, I once again raised the issue of unconstitutionality, even voting against a competing Republican measure with similar language.

Democrats, however, once again dismissed the issue, with one of their arguments being “let’s put this constitutional argument aside,” as if the Constitution were a mere inconvenience.

It was a disturbing sentiment among my colleagues on the other side of the aisle. Congress has a duty to defend the Constitution. We all take that oath. Congress has a duty to determine whether legislation is constitutional.

It’s not just up to our court system, culminating with the Supreme Court, to determine the constitutionality of a law.

That process is supposed to start in the halls of Congress. Yet when the time came for drug pricing, this duty was not only neglected but knowingly trampled upon.

Then the nonpartisan Congressional Research Service, which works for Congress and is tasked with analyzing legislation, released its legal analysis of the bill.

The Congressional Research Service concluded that the Lower Drug Costs Now Act of the 116th Congress would be in violation of the Fifth Amendment’s takings clause, as I had originally opined, and found another problem with the bill.

CRS feared that a court could conclude that Title I of the law is in violation of the Eighth Amendment’s excessive fines clause, due to the punitive noncompliance fee.

By the time the bill reached the floor, defending the Fifth and Eighth amendments from the violations had become the Republican rallying cry. 

Notwithstanding the clear evidence of their bill’s unconstitutionality, the Democrats continued to trample on the Constitution and passed the legislation. Thankfully, at that time, the Senate didn’t take up the bill.

Many of us believed that when they brought back a new drug pricing proposal in the new Congress, that they would have designed a constitutional approach. Like every good movie villain, however, the Democrats’ drug pricing provision rose from the dead again.

Three years after first being introduced, and after much discussion of its constitutionality, the provision was included in the final Inflation Reduction Act. House Democrats, Senate Democrats and the president of the United States all disregarded the clear unconstitutionality of the provision and again trampled on the Constitution.

I said it then, and I’ll say it now: The Democrats’ drug pricing provision is outrageous. Any lawyer worth their salt would recognize its constitutional weakness as soon as they read the language.

How could anyone say that if you don’t negotiate based on terms the government sets, the government gets to take 95% of the value of your sales? OK, maybe Don Corleone, the Godfather. He didn’t care about the law either.

Now Merck has sued on constitutional grounds. Of course they did! Of course they should. Since Merck’s lawsuit was announced, three similar lawsuits have also been announced: by the U.S. Chamber of Commerce; Bristol Myers Squibb; the National Infusion Center Association, the Global Colon Cancer Association, and the Pharmaceutical Research and Manufacturers of America.

Merck never should have had to sue. Rep. Nancy Pelosi and House Chuck Schumer should have defended the Constitution by never letting the drug pricing provisions move forward as written.

And now the courts will be forced to strike these egregious provisions down. This all could have been avoided. It is wasted time, wasted money, and a wasted opportunity to do something positive for Americans about drug prices.

• U.S. Rep. Morgan Griffith represents Virginia’s 9th District.