A report from the nonpartisan Congressional Research Service found House Speaker Nancy Pelosi's drug pricing bill may be ruled unconstitutional if taken to court, according to STAT.
The report laid out arguments that the bill may violate three separate parts of the U.S. Constitution, including the Fifth and Eighth Amendments as well as Congress' taxing power.
For example, the bill's provision that would grant the HHS secretary authority to negotiate prices of some drugs could break the Takings Clause, which prevents the government from taking private property without "just compensation." Drugmakers could argue the revenue they'd lose out on due to the negotiations is a "taking."
The report said, however, that it is difficult to successfully argue that something constitutes as a "taking" in court, according to STAT.
The bill also includes a provision that would levy a tax on drugmakers that refuse to negotiate. The tax on the drugmaker's sales would start at 65 percent tax and escalate to 95 percent if the company refused to comply. The report argued that it is not clear if Congress has the power to impose such a tax in the first place and that the tax could be considered "excessive" under the Eighth Amendment's excessive fines clause.
The report noted that Congress likely does have the constitutional authority to impose the excise tax.
A spokesperson for the House Ways and Means Committee also told STAT that the taxes created by the bill fall within Congress' power.
Ultimately, the report did not reach a definitive conclusion on whether or not the bill is unconstitutional. That decision, if drugmakers decide to pursue litigation, would be up to a judge.
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