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WASHINGTON — House Democrats’ signature drug pricing legislation could run afoul of not one, not two, but three separate parts of the U.S. Constitution, Congress’ own legal experts write in a new report.

The Oct. 21 Congressional Research Service report obtained by STAT states that H.R. 3, which would allow the government to negotiate over drug prices and levy huge fines on companies who refuse, might run afoul of the Fifth and Eighth Amendments, as well as Congress’ taxing power under the Constitution.


Importantly, the report does not reach a definitive conclusion as to whether the bill is unconstitutional — that decision would be up to a judge. In fact, the report notes that drug makers would in many cases face an uphill battle if they chose to challenge the law in court. But it wouldn’t be the first time a drug pricing policy was found unconstitutional — in fact, President Trump’s plan to require drug sticker prices in ads was found unconstitutional back in July. The Trump administration is appealing that decision.

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