On October 17, the House Energy and Commerce Committee marked up H.R. 3, Speaker Pelosi’s prescription drug bill.
Republicans and Democrats in the committee have been working together all year on solutions to lower prescription drug costs. We had previously passed legislation out of committee addressing the issue and were discussing further action to advance this goal.
Speaker Pelosi, in contrast, wrote a prescription drug bill primarily to satisfy the farthest left wing of her party and then proceeded to rush it through the various committees with jurisdiction, including Energy and Commerce. The legislation and the process alike are regrettable.
One of my most serious concerns about the bill is on its constitutionality. I believe part of the Pelosi drug bill constitutes a bill of attainder, a practice deemed so objectionable by our Founding Fathers that they prohibited Congress and the states from passing such legislation in the original text of the Constitution, even before the Bill of Rights.
Bills of attainder had been levied in England to seize individuals’ property, if not sentence them to death, and deny their heirs the right of inheritance. They were often wielded arbitrarily against opponents of the monarch. Colonists who settled in North America and their families had been victimized by the practice in England. Even after independence, some states continued the practice.
James Madison described bills of attainder and similar laws as “contrary to the first principles of the social compact, and to every principle of sound legislation.” They are at odds with the values of property rights and rule of law that define our constitutional system, but not, evidently, Speaker Pelosi’s drug pricing bill.
When courts have considered whether a law could be classified as an unconstitutional bill of attainder, they have traditionally asked three questions:
- Does the law target individuals or groups?
- Does the law punish them?
- Does the law impose its penalties without a trial?
I believe that Speaker Pelosi’s bill, which imposes up to a 95 percent tax of gross revenue on drug manufacturers who do not reach an agreement with the Federal Government on pricing, violates all three of these tests.
Further, a tax of 95 percent of gross revenue when a company must spend more money to bring a product to market means that a company could actually lose money on trying to bring a new drug to market.
I believe that would be a taking of the intellectual property of the company and a violation of the Fifth Amendment, part of the original Bill of Rights.
To make matters worse, this seizure of up to 95 percent of the gross revenues can go back in time five years.
When I raised these points in the markup, Democrats dismissed them, with one of their arguments being, “Let’s put this constitutional argument aside.”
When drafting laws, however, the Constitution cannot be set aside. Speaker Pelosi is bound to uphold it, as are all of us in the House of Representatives. The way forward for the Democrat majority is not to brush off concerns about constitutionality, but to come back to the table and work on legislation that doesn’t violate the law of the land and will actually help reduce drug prices.
Secretary of Energy Rick Perry
U.S. Secretary of Energy Rick Perry recently announced his plan to step down from his position later this year. I am sorry to see him depart the Trump Administration, although his return to private life is well-deserved. He has been an excellent Cabinet Secretary and a strong advocate for policies that guarantee American energy dominance.
Under his leadership, the Department of Energy has funded important and exciting research. He knew that we needed to draw upon all forms of energy at our disposal, and that studying their various uses was the best way to secure a plentiful and affordable energy supply.
I always appreciated his testimony before the House Subcommittee on Energy, on which I serve. I would like to extend my best wishes to him as he moves on to the next chapter of his life.
For questions, concerns, or comments, contact the Abingdon office at (276) 525-1405; the Christiansburg office at (540) 381-5671; the Washington office at (202) 225-3861, or via email at www.morgangriffith.house.gov.