Part 2 on #BMS’ and #Janssen’s #IRA Loss: The 1st Amendment Claim
I posted earlier on how the U.S. District Court for New Jersey took BMS and Janssen to the wood shed on their #Takings Clause challenge to the #inflationreductionact. Today, I take a look at why the court rejected their #1stamendment claim. Although I wasn’t much of a fan of this argument at first, I do think there are some weaknesses in the court’s decision, which can be exploited in the inevitable appeal to follow.
The Claim: The best version of the 1st Amendment claim that plaintiffs asserted was what is called an “unconstitutional conditions” argument. Under that doctrine, the government can’t condition even a benefit it offers on a party surrendering a #constitutional right.
Plaintiffs contend that, even assuming they are willing to accept a #Medicare “fair price”, they must sign an agreement that endorses that “fair price” rhetoric—even though they believe that it isn’t a “fair price”—that it’s actually a price control. To stay in the federal programs and not be subjected to a huge penalty, they have to sign a contract that endorses the gov’s political messaging.
The Court’s Rejection: The court wasn’t buying what plaintiffs were selling. For the court, signing a contract that replicates the statutory language is conduct, not speech.
Further, to the extent that plaintiffs’ speech was affected, the effect is only “incidental”.
Finally, the court tries to nail the lid over the coffin of plaintiffs’ claim by stating that, “[n]otably, nothing in the statute prevents Plaintiffs from publicly criticizing the Program”, before or after the agreement is signed.
My Take: This “three layered” argument is classic district court strategy to insulate a decision from appellate reversal, and my gut tells me that, in the Third Circuit, where this appeal is headed, it’s likely to be successful.
But there are 3 things that really bug me about this decision.
First, it’s naive at best, and disingenuous, at worst, to say that this contract and its impact is merely “incidental” from a speech perspective. Nothing about the IRA and the existential, bare-knuckled fist fight that has broken out around it is merely “contractial” or simply “incidental”.
Second, we already have seen how the gov has seized on #drug makers’ decision to enter into “negotiations” to win political points—to build its political message that the IRA really is a “negotiation” and that the process is “fair”.
Do you really think that the gov won’t use a drug makers’ signature on a contract that formally accepts a “fair price” for political purposes? If you do, there’s this bridge I’d like to talk to you about.
Third, if the President does trumpet a drug makers’ endorsement of “fair price” when it signs an IRA contract, will it really matter that before or after the manufacturer says that wasn’t its intent? I don’t think so. Not hardly.
#partd #freespeech #drugpricing #drugdevelopment Nyah Phengsitthy
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