Amicus Curiae Brief — Bristol Myers Squibb Company, Petitioner v. Robert F. Kennedy, Secretary of Health and Human Services, et al.

No. 25-749, 25-751

In the

Supreme Court of the United States

---------------------------------------------------

JANSSEN PHARMACEUTICALS, INC.,

Petitioner,

v.

ROBERT F. KENNEDY, SECRETARY OF

HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

---------------------------------------------------

BRISTOL MYERS SQUIB COMPANY,

Petitioner,

v.

ROBERT F. KENNEDY, SECRETARY OF

HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

--------------------------------------------------On Petitions for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

---------------------------------------------------

BRIEF OF AMICI CURIAE ADVANCING AMERICAN

FREEDOM; AMERICAN ENCORE; ET AL.

IN SUPPORT OF PETITIONERS

(Additional Amici Curiae Listed on Inside Cover)

J. Marc Wheat

Counsel of Record

Timothy Harper

(Admitted in DC)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W., Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancingamericanfreedom.com

January 22, 2026

Counsel for Amici Curiae

AMERICANS FOR FAIR TREATMENT; DONALD T. EASON,

PRESIDENT, CENTER FOR URBAN RENEWAL AND

EDUCATION; ROBERT K. FISCHER, CONSERVATIVES OF

FAITH; CHARLIE GEROW; TIM JONES, FORMER SPEAKER,

MISSOURI HOUSE, FOUNDER, LEADERSHIP INSTITUTE

FOR AMERICA; LIBERTY JUSTICE CENTER; NATIONAL

CENTER FOR PUBLIC POLICY RESEARCH; RIO GRANDE

FOUNDATION; RICK SANTORUM, FORMER SENATOR 19952007; PAUL STAM, FORMER SPEAKER PRO TEM, NC

HOUSE OF REPRESENTATIVES; AND TAXPAYERS

PROTECTION ALLIANCE

i

QUESTIONS PRESENTED

1. Whether the Program violates the Fifth

Amendment’s

Takings

Clause

by

forcing

manufacturers to sell medicines to Medicare

beneficiaries at below-market prices.

2. Whether the Program violates the First

Amendment by compelling manufacturers to

expressly “agree” with the government’s narrative

that its dictated amount is the medicine’s “maximum

fair price,” set through a voluntary negotiation.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICI CURIAE.................. 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT ......................... 2

I.

Congress’s Authority to Spend Arises from

the Necessary and Proper Clause, Not the

General Welfare Clause ................................... 4

A. The General Welfare Clause of Article

I, Section 8, Clause 1 does not grant

Congress an independent spending

power ......................................................... 4

B. Laws enacted by Congress that are not

a direct exercise of one of its

enumerated powers must be necessary and proper exercises of one of the

government’s enumerated powers ............ 8

II.

This Case Presents the Court with an

Opportunity to Consider the Damage

Caused to Our Constitutional System by

an Unchecked Power to Spend ...................... 11

CONCLUSION ......................................................... 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

AstraZeneca Pharms. LP v.

Sec’y U.S. Dep’t of Health & Hum. Servs.,

No. 24-1819, slip op. (3d Cir. May 8, 2025) ............. 2

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) .................................................. 1

Gibbons v. Ogden,

22 U.S. 1 (1824) ........................................................ 3

Gonzales v. Raich,

545 U.S. 1 (2005) .............................................. 10, 11

Health and Hospital Corp. of Marion County v.

Talevski, No. 21-806, slip op. (June 8, 2023) .... 3, 4, 6

Janssen Pharmaceuticals, Inc. v.

Secretary United States Dept. of

Health and Human Services,

No. 24-1821, slip op. (3d Cir. Sept. 4, 2025) ............ 2

McCulloch v. Maryland,

17 U.S. 316 (1819) ........................................... 3, 9-11

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .......................................... 4, 5, 9

South Dakota v. Dole,

483 U.S. 203 (1987) ...................................... 5, 12, 13

United States v. Butler,

297 U.S. 1 (1936) .............................................. 5, 7, 8

United States v. Comstock,

560 U.S. 126 (2010) ................................................ 11

iv

Constitutional Provisions

U.S. Const. amend V ................................................... 4

U.S. Const. amend X ................................................... 3

U.S. Const. art. I § 8 cl. 1 .........................................3-8

U.S. Const. art. I § 8 cl. 18 .......................................... 8

Other Authorities

Tim Chapman, Marc Wheat, A Better

Prescription for Affordable Medicine, National

Review (August 28, 2025 6:30 AM)

https://www.nationalreview.com/2025/08/abetter-prescription-for-affordable-medicine/ ........... 3

Richard A. Epstein, The Proper Scope of the

Commerce Power, 73 Va. L. Rev. 1387 (1987) ....... 10

Federalist No. 17 (Alexander Hamilton) (George

Carey & James McClellan eds., 2001) ..................... 7

Federalist No. 33 (Alexander Hamilton) (George

Carey & James McClellan eds., 2001) ................... 10

Federalist No. 78 (Alexander Hamilton) (George

Carey & James McClellan eds., The Liberty

Fund 2001)............................................................ 8, 9

Edwin J. Feulner, Jr., Conservatives Stalk the

House: The Story of the Republican Study

Committee (Green Hill Publishers, Inc. 1983) ........ 1

THE GODFATHER, (Paramount Pictures (1972) ........... 2

Philip Hamburger, Purchasing Submission:

Conditions, Power, and Freedom (Harvard

University Press 2021) .............................. 3, 6, 12-14

v

Independence Index: Measuring Life, Liberty

and the Pursuit of Happiness, Advancing

American

Freedom

available

at

https://advancingamericanfreedom.com/aaffindependence-index/ ................................................. 1

Robert G. Natelson, The General Welfare Clause

and the Public Trust: An Essay in Original

Understanding, 52 U. Kan. L. Rev. 1 (2003) ........5-7

Antonin Scalia, Foreword: The Importance of

Structure in Constitutional Interpretation, 83

NOTRE DAME L. REV. 1417 (2008) .......................... 13

1

STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom (AAF) is a nonprofit

organization that promotes and defends policies that

elevate traditional American values, including

freedom from arbitrary power.1 AAF “will continue to

serve as a beacon for conservative ideas, a reminder to

all branches of government of their responsibilities to

the nation,”2 and believes American prosperity

depends on ordered liberty and self-government.3 AAF

files this brief on behalf of its 150,374 members

nationwide including 10,486 in the Third Circuit.

Amici American Encore; Americans For Fair

Treatment; Donald T. Eason, President, Center for

Urban Renewal and Education; Robert K. Fischer,

Conservatives of Faith; Charlie Gerow; Tim Jones,

Former Speaker, Missouri House, Founder,

Leadership Institute for America; Liberty Justice

Center; National Center for Public Policy Research;

Rio Grande Foundation; Rick Santorum, Former

Senator 1995-2007; Paul Stam, Former Speaker Pro

Tem, NC House of Representatives; and Taxpayers

Protection Alliance believe that the Constitution’s

limits on federal power are essential to the

preservation of American liberty and prosperity.

1 All parties received timely notice of the filing of this amicus

brief. No counsel for a party authored this brief in whole or in

part. No person other than Amicus Curiae and its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

2 Edwin J. Feulner, Jr., Conservatives Stalk the House: The Story

of the Republican Study Committee, 212 (Green Hill Publishers,

Inc. 1983).

3 Independence Index: Measuring Life, Liberty and the Pursuit

of Happiness, Advancing American Freedom available at

https://advancingamericanfreedom.com/aaff-independence-index/.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Medicare and Medicaid together account for almost

half of the nation’s expenditures on prescription

drugs. AstraZeneca Pharms. LP v. Sec’y U.S. Dep’t of

Health & Hum. Servs., No. 24-1819, slip op. at 6-7 (3d

Cir. May 8, 2025). In 2022, seeking to leverage

leviathan for a political win, Congress passed and

President Biden signed the Inflation Reduction Act

(“IRA”) among the provisions of which was a new

prescription drug price “negotiation” program for

Medicare. Id. at 7. Under the IRA, the Centers for

Medicare and Medicaid Services (“CMS”) is tasked

with selecting a certain number of drugs each year

based on statutorily defined criteria. Janssen

Pharmaceuticals, Inc. v. Secretary United States Dept.

of Health and Human Services, No. 24-1821, slip op.

at 14 (3d Cir. Sept. 4, 2025).

Once a manufacturer’s drug is selected, it can

either agree to participate in a price “negotiation” or it

can opt out. Id. at 14-15. However, if it opts out, it

must withdraw “all of its drugs (not just those selected

for negotiation) from coverage in two programs: (1)

Medicare Part D’s Manufacturer Discount Program or

its predecessor, the Coverage Gap Discount Program,

and (2) the Medicaid Drug Rebate Program.” Id. at 17.

If the manufacturer agrees to participate but

cannot reach a price agreement with CMS, the

selected drugs will be subject to an excise tax that

begins at 185.71% and escalates daily to 1,900% by

270 days. Id. at 16. Under this “negotiation” program,

CMS made the manufacturers who brought this case

“an offer [they] [couldn’t] refuse.” Id. at 26 (Hardiman,

C.J.,

dissenting)

(quoting

THE GODFATHER,

(Paramount Pictures (1972)).

3

The price controls at issue in this case are not only

economically disastrous,4 they are illegal. The

government of the United States, created by the

Constitution, is “one of enumerated powers.”

McCulloch v. Maryland, 17 U.S. 316, 405 (1819). An

“enumeration of powers is also a limitation of powers,

because ‘[t]he enumeration presupposes something

not enumerated.’” Gibbons v. Ogden, 22 U.S. 1, 9

(1824). That fact was made explicit by the ratification

of the Tenth Amendment: “The powers not delegated

to the United States by the Constitution . . . are

reserved to the States respectively, or to the people.”

U.S. Const. amend X. Thus, all federal action must

grow directly out of one of its specified powers.

This case presents the Court with the opportunity

to reconsider its interpretation of the General Welfare

Clause of Article I, Section 8. “There are serious

problems” with the Court’s understanding of the

Congress’s authority over spending, Health and

Hospital Corp. of Marion County v. Talevski, No. 21806, slip op. at 12 (June 8, 2023) (Thomas, J.,

dissenting), and the result has been a significant

increase in federal power beyond constitutional

bounds. Congress and the administrative state,

sometimes at congressional direction and other times

not, use the Federal Government’s power of the purse

as an “unconstitutional pathway for control.”5

The Court should also consider the limitations

imposed on government price manipulation that may

4 Tim Chapman, Marc Wheat, A Better Prescription for Affordable

Medicine, National Review (August 28, 2025 6:30 AM)

https://www.nationalreview.com/2025/08/a-better-prescriptionfor-affordable-medicine/.

5 Philip Hamburger, Purchasing Submission: Conditions, Power,

and Freedom 5 (Harvard University Press 2021).

4

arise from the Takings Clause. U.S. Const. amend V.

When the government acts as a buyer, it can, of course,

engage in good faith price negotiations with sellers.

On the other hand, when the government seeks to use

its position to impose conditions on market

participation and to expropriate value from companies

without just compensation, it has exceeded the limits

of its power.

The Court should grant the Petition for Certiorari

and rule for Petitioners.

I. Congress’s Authority to Spend Arises from the

Necessary and Proper Clause, Not the General

Welfare Clause.

A. The General Welfare Clause of Article I, Section 8,

Clause 1 does not grant Congress an independent

spending power.

Article I grants Congress the power “To lay and

collect Taxes, Duties, Imposts and Excises, to pay the

Debts and provide for the common Defense and

general Welfare of the United States; but all Duties,

Imposts and Excises shall be uniform throughout the

United States.” U.S. Const. art. I § 8 cl. 1. This

provision does not grant Congress an independent

spending power. See, Health and Hospital Corp. of

Marion County v. Talevski, No. 21-806, slip op. at 12

(June 8, 2023) (Thomas, J., dissenting) (“[W]hile

Congress undoubtedly possesses the power to direct

the expenditure of federal funds, it is important to

note that the Constitution contains no ‘spending

clause.’ From the beginning, some have located the

spending power in the General Welfare Clause, and

that view has generally been accepted by this Court’s

modern doctrine . . . Yet, there are serious problems

with that view.”). But see, Nat’l Fed’n of Indep. Bus. v.

5

Sebelius, 567 U.S. 519, 576 (2012) (Opinion of Roberts,

C.J.) (“The Spending Clause grants Congress the

power ‘to pay the Debts and provide for the . . . general

Welfare of the United States.’”).

This Court has referred to the phrase, “to pay the

Debts and provide for the common Defense and

general welfare of the United States,” as the

“Spending Clause,” South Dakota v. Dole, 483 U.S.

203, 206 (1987), and has interpreted it as a grant of

spending power to Congress that is “not limited by

direct grants of legislative power found in the

Constitution.” Id. (internal quotation marks omitted)

(quoting United States v. Butler, 297 U.S. 1, 66 (1936)).

Although the Court explained in Butler that the power

conveyed by the “Spending Clause” is not unlimited, it

undermined any supposed limitations by “requir[ing]

a showing that by no reasonable possibility can the

challenged legislation fall within the wide range of

discretion permitted to Congress.” Butler, 297 U.S. at

67. “The real-life result of this interpretation is that

Congress can, and does, spend money on pretty much

whatever it wants.”6

This expansive reading was first advanced by

Alexander Hamilton and later Joseph Story, before

being adopted by the Court.7 The Hamilton-Story

interpretation of Article I, Section 8, Clause 1,

however, is not supported by the text of the

Constitution or its history. “The General Welfare

Clause is simply part of the Taxing Clause” and is

“most naturally read as a qualification on the

6 Robert G. Natelson, The General Welfare Clause and the Public

Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev.

1, 9 (2003).

7 Id. at 8.

6

substantive taxing power.” Talevski, No. 21-806, slip

op. at 12 (Thomas, J., dissenting).

The history of the text of Article I, Section 8, Clause

1, shows that it does not grant Congress a general

spending power. As Professor Phillip Hamburger has

explained, the constitutional convention replaced an

errant semicolon after the word “Excises” with a

comma, making it “abundantly clear that the phrase

about ‘providing for . . . general welfare’ was merely a

limitation on the taxing power, not a spending

power.”8 Further, the phrase “general welfare” was

used in drafts and the final versions of both the

Articles of Confederation and the Constitution.9 The

phrase “seems to have been shorthand for ‘the benefit

of the interests we have in common rather than the

benefit of particular localities or parties,” and thus

“was essentially not a phrase of power, but of

limitation.”10

Further, the Hamilton-Story interpretation makes

a mess of the “elegantly drawn”11 Constitution by

rendering surplusage the enumeration of several of

Congress’s powers12 and by reading a subordinate

clause as a grant of independent power when no other

provision of Article I, section 8 is structured in that

8 Id.

9 Id. at 29.

10 Id. (emphasis in original).

11 Id. at 14.

12 Powers rendered surplusage by

the Hamilton-Story reading

include the powers to “support Armies,” “maintain a Navy,”

“purchase ‘forts, Magazines, [and] Arsenals,” “establish Post

Offices and Post Roads,” “constitute Tribunals inferior to the

supreme Court,” and “purchase ‘dock-Yards and other needful

Buildings.’” Id, at 12-13 (alteration in original).

7

way.13 Another of the Hamilton-Story reading’s

“serious textual defects”14 is that it anachronistically

assumes that “pay” and “provide for” are synonyms

when, in fact, the Constitution’s use of the word

“provide” “embodies an element of futurity

inconsistent

with

immediate

spending

or

appropriation.”15

In practice, the Hamilton-Story view has converted

the national government from one of limited

enumerated powers directed at national and general

ends to one that has wide-ranging powers that can

reach local concerns. Hamilton and Story themselves

rejected this outcome. For example, Hamilton argued

that appropriations must be for a purpose that is

“general, and not local.” Butler, 297 U.S. at 67. James

Monroe, “an advocate of Hamilton’s doctrine,” wrote

that Congress “certainly” does not have the power “to

raise and appropriate the money to any and every

purpose according to their will and pleasure.” Id. That

reading is consistent with Hamilton’s assurance in the

Federalist Papers that such matters as “the

supervision of agriculture and of other concerns of a

similar nature, all those things, in short, which are

proper to be provided for by local legislation, can never

be desirable cares of a general jurisdiction.”16 Story,

too, “ma[d]e it clear that the powers of taxation and

appropriation extend only to matters of national, as

Unlike every other enumerated power, the Hamilton-Story

reading of Article I, Section 8, Clause 1 is that it “grants an

authority to tax, then grants authority to spend, then doubles

back to restrict the authority to tax.” Id. at 14.

14 Id. at 12.

15 Id. at 15-16.

16 Federalist No. 17 at 81 (Alexander Hamilton) (George Carey &

James McClellan eds., 2001).

13

8

distinguished from local, welfare.” Butler, 297 U.S. at

67.

Congress’s power to appropriate funds, then, is not

a legitimate exercise of power under Article I, Section

8, Clause 1. Instead, Congress may spend federal

funds when doing so is “necessary and proper for

carrying into Execution” the enumerated powers of

the federal government. U.S. Const. art. I § 8 cl. 18.

B. Laws enacted by Congress that are not a direct

exercise of one of its enumerated powers must be

necessary and proper exercises of one of the

government’s enumerated powers.

Along with its enumerated powers, Article I

grants Congress the power to enact laws that are

“necessary and proper for carrying into execution” the

national government’s other enumerated powers.

U.S. Const. art. I, § 8, cl. 18. The Court has “long” read

the Necessary and Proper Clause “to give Congress

great latitude in exercising its powers,” in part

because of the Court’s “general reticence to invalidate

the acts of the Nation’s elected leaders.”17

17 Here and in the context of the “limits” of the “Spending Clause”

discussed above, the Court has granted Congress wide latitude in

defining the limits of its own powers. However, Alexander Hamilton

in Federalist 78 explained in detail why this should not be so.

There is no position which depends on clearer

principles, than that every act of a delegated

authority, contrary to the tenor of the commission

under which it is exercised, is void. No legislative

act, therefore, contrary to the Constitution, can

be valid. To deny this, would be to affirm, that the

deputy is greater than his principal; that the

servant is above his master; that the

representatives of the people are superior to the

9

Sebelius, 567 U.S. at 537. (Opinion of Roberts, C.J.) In

doing so, it has set loose the lion the Framers of the

Constitution sought to cage.

The original meaning of the Necessary and Proper

Clause is much narrower than the Court has, at times,

read it. The Clause “does not license the exercise of

any ‘great substantive and independent power[s]’

beyond those specifically enumerated.” Sebelius, 567

U.S. at 559 (Opinion of Roberts, C.J.) (quoting

McCulloch, 4 Wheat. at 411, 421). Rather, “the

Necessary and Proper Clause is exceeded . . . when

[congressional action] violates the background

principle of enumerated (and hence limited) federal

power.” Sebelius, 567 U.S. at 653 (Scalia, J.,

dissenting). The Necessary and Proper Clause merely

“ensure[s] that the Congress shall have all means at

people themselves; that men acting by virtue of

powers, may do not only what their powers do not

authorize, but what they forbid. If it be said that

the legislative body are themselves the

constitutional judges of their own powers, and

that the construction they put upon them is

conclusive upon the other departments, it may be

answered, that this cannot be the natural

presumption, where it is not to be collected from

any particular provisions in the Constitution. It

is not otherwise to be supposed, that the

Constitution could intend to enable the

representatives of the people to substitute their

WILL to that of their constituents. It is far more

rational to suppose, that the courts were designed

to be an intermediate body between the people

and the legislature, in order, among other things,

to keep the latter within the limits assigned to

their authority.

Federalist No. 78 at 403 (Alexander Hamilton) (George Carey &

James McClellan eds., The Liberty Fund 2001).

10

its disposal to reach the heads of power that

admittedly fall within its grasp . . . Congress shall not

fail because it lacks the means of implementation.”18

The clause is not “a pretext . . . for the accomplishment

of objects not entrusted to the government.” Raich,

545 U.S. at 66 (Thomas, J., dissenting) (quoting

McCulloch, 4 Wheat. at 423) (internal quotation

marks omitted). As Hamilton explained in Federalist

33, the power granted to Congress by the Necessary

and Proper Clause is only to effectuate the

government’s other powers.19

Even Chief Justice John Marshall, in his famous

explication of the clause, generally taken to be an

expansive reading, demanded that the “means . . .

consist with the letter and spirit of the constitution.”

McCulloch, 4 Wheat. at 421. As Justice Thomas has

explained, McCulloch created a two-part test for

compliance with the Necessary and Proper Clause:

First, the law must be directed toward a

“legitimate” end, which McCulloch

defines as one “within the scope of the

[C]onstitution”—that is, the powers

expressly delegated to the Federal

Government by some provision in the

Constitution . . . Second, there must be a

necessary and proper fit between the

“means” (the federal law) and the “end”

(the enumerated power or powers) it is

designed to serve . . . The means

Congress selects will be deemed

“necessary” if they are “appropriate” and

18 Richard A. Epstein, The Proper Scope of the Commerce Power,

73 Va. L. Rev. 1387, 1397–98 (1987).

19 Federalist No. 33 at 159 (Alexander Hamilton) (George Carey

& James McClellan eds., 2001).

11

“plainly adapted” to the exercise of an

enumerated power, and “proper” if they

are not otherwise “prohibited” by the

Constitution and not “[in]consistent”

with its “letter and spirit.”

United States v. Comstock, 560 U.S. 126, 160-61 (2010)

(Thomas, J., dissenting) (alteration in original)

(quoting McCulloch, 4 Wheat. at 421). Both the letter

and the spirit of the Constitution require Congress to

exercise its power under the clause “in a manner

consistent with basic constitutional principles.”

Gonzales v. Raich, 545 U.S. 1, 52 (2005) (O’Connor, J.

dissenting) (citing Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 585 (1985) (O’Connor, J.,

dissenting)).

Thus, when Congress seeks to appropriate money,

it must point clearly either to a direct authorization to

do so or must show that doing so is a valid exercise of

power “necessary and proper” to effectuating some

enumerated federal power.

II. This Case Presents the Court with an

Opportunity to Consider the Damage Caused to

Our Constitutional System by an Unchecked

Power to Spend.

Although the government can undoubtedly

negotiate prices when it is purchasing goods and

services for its own use, when it uses its purchasing

power as a means of regulation, it has exceeded the

bounds of the spending authority that is necessary and

proper to the exercise of the government’s enumerated

powers.

Because Congress lacks an independent spending

power, its myriad uses of federal funds to accomplish

things not within its delegated powers constitute

12

“unconstitutional pathway[s] of control.”20 This often

comes in the form of conditions imposed on recipients

of federal funds. Conditions are reasonable and

necessary when they “define what government is

lawfully buying or supporting with a grant.”21

However, “regulatory conditions are those that

substitute for statutes in regulating Americans.”22

Professor Hamburger suggests several factors that

may demonstrate that a condition is regulatory,

including that they are “disproportionately large,

nongermane, or otherwise ‘off.’”23 Fundamentally,

when Congress or the administrative state uses

conditions to accomplish what it could not accomplish

directly, it illegitimately circumvents the Constitution

and its carefully defined limits on federal power,

threatening the liberty of the people with death by

check.

In South Dakota v. Dole, the Supreme Court

upheld Congress’s use of federal funds to induce states

to raise the drinking age to 21. 483 U.S. 203 (1986).

The Court found that its precedents, rather than

establishing “a prohibition on the indirect

achievement of objectives which Congress is not

empowered to achieve directly,” instead stood “for the

unexceptional proposition that the power may not be

used to induce the States to engage in activities that

would themselves be unconstitutional.” Id. at 210.

According to Justice Scalia, “it is a mistake to think

that the Bill of Rights is the defining, or even the most

20 Hamburger, supra note 4 at 5.

21 Id. at 61.

22 Id. at 63.

23 Id.

13

important, feature of American democracy.”24 Rather,

it is the structure that keeps Americans free.

“Structure is everything.”25 Yet, the Court’s

interpretation of the “spending power” in Dole turns

that arrangement on its head. Congress can collect

taxpayer dollars and use them to buy state compliance

with no limits except those explicitly enumerated in

the Constitution.

This use of conditioned spending is not limited to

states. “Rather than regulate through law and public

consent,”

Professor

Hamburger

writes,

the

government makes different deals with various parts

of society.”26 The government then often “selectively

offer[s] waivers” so that the government is “not only

mak[ing] separate deals with different constituencies

but also makes separate compromises when the initial

deals are so tough as to be impracticable.”27

This conditional spending also allows the

government to buy off political opposition.

Government may thus purchase “the acquiescence of

many who might have publicly resisted the

regulation.”28 And these conditions may have been

unable to garner the support necessary to survive

Congress or even the rulemaking process.29 This

particularly harms those parties, like smaller

businesses, left out of the deal, because “[i]n buying off

Antonin Scalia, Foreword: The Importance of Structure in

Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417,

1417 (2008).

25 Id. at 1418.

26 Hamburger, supra note 4 at 104.

27 Id.

28 Id. at 105.

29 Id.

24

14

some of the potential opponents of a regulation, the

government deprives other opponents of the allies

they would need to mount successful political

resistance.”30

Here, politically unpopular entities, drug

manufacturing companies, are the targets of a policy

that is designed to siphon off economic value for the

benefit of Medicare participants. Rather than

attempting to directly cap drug prices, Congress has

sought to add conditions to its spending on

prescription drugs to force drug companies to accept

lower prices than they otherwise would.

These conditions are not germane to the purchase

of the goods themselves but are instead an attempt to

regulate. Whether the government covers one drug for

Medicare recipients is not germane to whether it

covers another. The government could have sought to

negotiate the price of individual drugs on the

understanding that, if it and manufacturers could not

agree on a price, the government would not cover that

specific drug. Instead, the government sought to

leverage its “spending power” to force drug

manufacturers to acquiesce. In doing so, it acted as a

regulator, not a purchaser and thus attempted to

bypass the public consent necessary for valid

legislation.

The recent aggressive economic policy of the

Executive Branch, from taking equity stakes in

numerous companies without compensation, to

engaging in selective anti-trust investigations, to

subpoenaing the Chair of the Federal Reserve,

demonstrates a great need for a resurgence of

constitutional norms. Among them, the Takings

30 Id. at 106.

15

Clause, which provides a critical constitutional

protection for, and recognition of the value of, private

property, is in particular need of restoration. If the

government must pay just compensation to private

entities before it expropriates private property, much

injustice may be prevented before it begins. This case

provides the Court with an opportunity to reinforce

that essential constitutional protection.

CONCLUSION

For the forgoing reasons, the Court should grant

certiorari and rule for Petitioners.

Respectfully submitted,

J. Marc Wheat

Counsel of Record

Timothy Harper

(Admitted in DC)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W.,

Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Counsel for Amici Curiae