“Later this year, the federal government is supposed to start a serious attempt to rein in drug prices: For the first time, Medicare will negotiate with pharmaceutical companies over the prices it’s willing to pay for a short list of drugs. It’s a long-awaited change that is supposed to save the government and patients billions of dollars over time.
But the drug industry is now launching a legal fight aimed at stopping Medicare’s negotiations over prescription drug prices before they begin. The stakes are higher than just a drug price reform: The case could set an important precedent for the government’s authority to try to constrain health care prices.”
…
“The Merck lawsuit focuses on the Constitution’s takings (or compensation) clause in the Fifth Amendment, which protects private owners from having property taken without “just compensation” by the government. It also raises First Amendment claims centered on the law’s requirements that drugmakers not disclose information they receive from the government as part of the negotiations. The Chamber of Commerce’s case rests on a constitutional right to due process, arguing that, because the Medicare negotiations are exempt from review by the courts under the IRA, drugmakers are being denied due process.
Taken together, the lawsuits give any judges predisposed to side with private industry over the federal government a few options for a legal foundation upon which to base a decision in pharma’s favor.
A number of legal experts say they are skeptical of these arguments. Merck’s takings clause case turns on defining a patent — an issuance from the government — as private property subject to the just compensation clause, said Robin Feldman, a law professor at UCSF, a difficult assertion. She also said the premise present in both cases — that the federal government as a health care purchaser through Medicare can’t say no to the companies it purchases drugs from and can’t dictate prices as the consumer — is “problematic.”
“It can’t be that the government as a buyer has to pay whatever a seller wants to charge,” she said. “That the government could be forced to spend itself into bankruptcy.”
Regarding the chamber’s due process claim, several legal experts have pointed out that Medicare’s various contracts with health care providers are already often generally exempted from judicial review. It is understood that this is necessary to allow the program to function; the government, as the administrator of the program, needs that authority without each of its decisions being subject to litigation.”
“it’s not just the Atlantic; oceans all around the world are seeing stunningly high average temperatures right now. On the other side of the globe, the Pacific Ocean surface is also heating up as it enters the El Niño phase of its cycle. Together, these phenomena are poised to push the planet’s temperature to new highs.”
“most of his anti-liberal broadside is at once underbaked and overheated.
The critique is underbaked in the sense that it’s not clear from his account how exactly this rather large “elite” is responsible for the destruction of conservative norms and small-town America. How can we hold a graphic designer in Chicago or a Whole Foods supply chain specialist in Austin responsible for the decline of Christian morals and the hollowing out of small towns?
It’s overheated in the sense that Deneen turns his rivals into cartoon villains, arguing that “the current ruling class is uniquely ill-equipped for reform, having become one of the worst of its kind produced in history.”
Roman nobles were legally permitted to rape their slaves. The military elites of the Mongol Empire were constantly murdering civilians and each other. In France after the Black Plague, the impoverished aristocracy stole from their already-suffering peasants to continue funding their lavish lifestyles. The elite of the early American South centered their entire society around the racist brutality of chattel slavery.
Is the American elite out of touch with the working class in ways that have tangible and negative consequences for the country? Sure. But it’s not remotely comparable to the bad elites of previous centuries.
This loss of perspective tarnishes Deneen’s argument throughout the book — a problem most vividly on display in his treatment of the divide between “the many” and “the few.”
In Deneen’s thinking, it is axiomatic that the central divide in Western politics is between the villainous liberal elite (the “few”) and the culturally conservative mass public (“the many”). The liberal elites wish to impose their cultural vision on society and attack the customs and traditions of ordinary people; the many, who are instinctively culturally conservative, have risen under the banner of leaders like Trump to oppose them.
Except how do we know that liberals really are “the few?”
Deneen doesn’t cite election or polling data to support his theory of a natural conservative majority. Trump has never won the popular vote while on the ballot; his party performed historically poorly in two midterm elections since his rise to power. Polling on the cultural issues Deneen so cares about, like same-sex marriage, often finds majority support for liberal positions.”